TV rights

Can they take off, Bake Off?

Channel 4 may have outbid the BBC to win the world’s best-loved baking show, but what’s to stop the corporation from cooking up a similar format, asks Alex Woolgar

Is the most important intellectual property issue in the UK trademark: it is quite descriptive, so Love would need to demonstrate this year Brexit? Infringement of second medical use patents? significant acquired distinctiveness). Blocking injunctions? For some people, no – it is, instead, an What about the layout of the Bake Off marquee? Could the tent itself amateur TV cookery contest called Great British Bake Off (GBBO). be shoehorned into a recognised category of work, such as sculpture? On 13 September, it was widely reported that the BBC would lose the Almost certainly not – the law understands sculptures to be made by an rights to its most popular show (the 2015 final was watched by 15.1m artist’s hand. (The tent might, however, qualify for UK or EU unregistered viewers). The production company and rights owner, Love Productions, design protection, although it is questionable whether the court would accepted an offer from Channel 4 of £25m per year for the next three interpret the design to afford much breadth of protection). years; a deal worth, reportedly, £30m more than the BBC’s best offer. But someone may have sketched the layout of the tent prior to But what has Channel 4 actually bought? Presenters Mel Giedroyc building. This sketch would be an artistic work. If the layout of the three- and Sue Perkins, and judge Mary Berry, national treasures all, have all dimensional tent is copied, this will be deemed (indirect) copying of the resisted the temptation of Channel 4’s “dough” and reaffirmed their underlying design drawing. commitment to the Beeb. Crueller commentators have suggested that Channel 4 is left with not much more than an empty tent (more Chocolate tort accurately, a marquee) and Paul Hollywood. What’s worse, rumours So, where are we left? A show on the same theme (a baking competition) abound that the BBC is considering launching its own rival programme which otherwise materially diverges from the structure and features of with the talent staying behind. Can this be? GBBO is not likely to infringe copyright. But because of unregistered design rights, maybe the new competition will have to be held in a Flour power wigwam, teepee or yurt (provided, of course, that a sufficiently large As a matter of intellectual property law, yes and no. Love Productions example can be found). has a selection of word and stylised registered trademarks for THE Many rightsholders are well aware of the paucity of legal protection GREAT BRITISH BAKE OFF across a range of classes, covering everything afforded to programme formats, which is why non-disclosure agreements from kitchenware to cookery books, and Christmas tree ornaments (NDAs) are commonplace. These are, of course, useful while an idea for to (crucially) television entertainment. Presumably, also, Love will claim a programme is proving, or in the oven (if you will). But, depending on passing off rights in common derivations and abbreviations, such as how the NDA is drafted, it may be no help once the show is the public GBBO. So, the BBC will not be able to launch a show with an identical domain. A court may be willing to enforce a confidentiality undertaking or confusingly similar name; nor a name that takes unfair advantage of, as a negative covenant even after a programme has been first broadcast. or blurs or tarnishes, Love’s marks; nor, indeed, one which misrepresents But this willingness may be tested under attack by competition law, that there is a connection with the original GBBO. restraint of trade, or freedom of expression defences. What about copyright? No doubt readers will be familiar with the This saga raises interesting questions about what really makes idea/expression dichotomy: that copyright only exists in recognised a television programme. Is it the concept and, if so, is that concept categories of work (which can be said to be an expression of an idea), protectable beyond an initial NDA to prevent opportunistic copying of and not an underlying idea as such. Ideas are too general, abstract and a rejected pitch, and putting in place a thicket of trademarks to at least transient to be protectable. By all means, go and get a patent if the idea hobble the competition? Or is it the talent and, if so, what does this is a really good one (provided, of course, that it is an invention that is mean for production companies putting around shows where the stars’ capable of industrial application). contracts are not watertight? Is the whole format of GBBO protectable as a dramatic work? The Author short answer is…not likely. At best, parts of the show will be protected Alex Woolgar is an associate in the IP by copyright. Obviously, scripts cannot be copied verbatim. The show’s litigation team at Allen & Overy, London. music (both underlying compositions and recordings thereof) is clearly He advises innovative and rights-holding copyright. But never mind: the BBC could commission just-sufficiently- companies in the life sciences, TMT, energy, different sound-alikes. FMCG and hospitality sectors across the full Names of challenges, such as the “Signature Bake”, perhaps? range of IP rights. Maybe, although it is questionable whether these are sufficiently original to be protectable as the creator’s own intellectual creation. (It is also questionable whether Love would be able to register this name as a

62 Intellectual Property Magazine November 2016 www.intellectualpropertymagazine.com