"Dinner at Somizi's" is the story that's gripped the nation with all the elements of a classic drama: celebrity, intrigue, double crossing and that vital cog for any narrative - intellectual property law.
What happened here was that in 2014, a man by the name of Hastings Moeng approached a South African media star, Idols SA judge Somizi Mhlongo, with an idea for a chat show that's also a cooking show. An idea that had apparently been simmering in Hastings' mind since 2010.
Hastings made his approach by way of email revealed to us by Eusebius Mckaiser on, you guessed it, Twitter. "Hey Somizi, how about a cooking/chat show called Dinner Kwa Somizi ('kwa' translating roughly as 'place', so Dinner at Somizi's place). In this show you'll cook and talk to local celebrities at the same time." Hastings made it all sound pretty exciting - it'll be a show that "captures the drama that goes into preparing each meal", one where "Somizi and his guests sweat it out in the kitchen". A show with variety: "The guests will be an eclectic mix of idols and icons, the new kids as well as the not-so-new kids in SA showbiz".
Hastings ended his email with: "Please receive this as an expression of interest to partner up with you on the idea. I've not done a show before though I am confident that between us we have a database of the right people to bring this to life".
Even if you haven't followed the story, you can probably guess how it ends. Hastings doesn't get a response, years go by, finally there's a TV show called Dinner at Somizi's (one that's very much in the format described above). Hastings is very cross and goes public, a Twitter storm erupts, people say strong stuff like Somizi's actions were "evil". It's the Battle of Hastings reincarnate, although the most French thing about it is probably a baguette.
This is a reoccurring theme in South Africa and one that we are seeing more and more in our practice. Almost every launch of a new or innovative product or service in South Africa is followed by approaches claiming some proprietary right. The approaches range from justified to tenuous to absurd, but with the amplification of social media the merit almost no longer matters - especially if there is a corporate serial offender involved.
So, what's the law here?
As a general rule, an idea or creative concept does not qualify for any of the better known forms of intellectual property protection such as patents, copyright or trade marks. Without a contract between the parties, we are arguably in the area of trade secrets and confidential information.
Trade secrets and confidential information form part of the law of unlawful competition, a very wide field that includes things like passing off and, in more general terms, the unfair use of a competitor's fruits and labour.
We have, in fact, discussed trade secrets and unlawful competition on a number of occasions of late, primarily because the Supreme Court of Appeal handed down an important judgment on this topic a few years back. The case of Pexmart CC v H. Mocke Construction (Pty) Ltd, dealt with the unauthorised use of confidential information and trade secrets. The court there said that the requirements for such a claim are as follows:
- the information must be capable of application in trade or industry;
- the information must be secret or confidential; and
- the information must be of economic (business) value to the plaintiff.
Does information of the sort sent by Hastings qualify as a trade secret? Yes, it may be capable of commercial application. Yes, it may have potential for economic value, but is it in any way secret or confidential? No, it's a generic idea for a TV show, a format that no doubt already exists in other parts of the world that appears to be pitched unsolicited and without any claims of proprietorship (or indeed secrecy).
Our reserved view is that if Hastings were to bring this battle to court, it may go the way of King Harold. Admittedly, in the days of social media courts and binary arguments, this may not matter.
Trying to find learnings in a celebrity war seems like digging for diamonds in a dumpster fire (smelly, bad for your health) but let us investigate what Hastings and Somizi could have done differently.
Hastings one the one hand, could have made an approach along the lines of: "Hey Somizi, I have a great idea for a show, but before I disclose it to you I require you to sign this nice non-disclosure agreement that my lawyer has drafted (note: please do not use the one you downloaded from Google), one that says you agree not to run with this idea yourself in the event that we don't do a deal." This would have at least provided him with a claim under breach of contract if Somizi did something naughty.
Somizi, on the other hand, is placed in a difficult position by an unsolicited approach. Do you engage and reject the idea, or do you have your lawyer send Hastings a response detailing all the reasons why there is no proprietary rights to the pitch, that it was done without agreement and that Somizi is not bound to respect the approach? The answer, we have found, is somewhere in the middle and more of our clients are putting processes and systems in place to deal with unsolicited or uninvited approaches.
A reoccurring theme is to document as much as possible of the approach and to get it into a legal discussion as soon as possible so that all participants understand and agree to the rules of engagement.
As a general rule, our advice would be simple - for the Hastings out there, seek legal advice before disclosing any potential business deal to a third party. For the Somizis out there - get a system in place to deal with unsolicited approaches and anticipate these matters better. Also, get a social media savvy lawyer who understand that litigation is only one of the available options in these situations.
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