Could Mel and Sue present a new baking show on the BBC? Inside the confusing world of TV format rights

The Great British Bake Off may be lost – but what could the BBC do next? And what have Channel 4 actually bought from Love Productions? Lawyer and intellectual property expert Piers Strickland explains a complicated legal recipe

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Unless you have been stranded on a deserted island last week, you will know that The Great British Bake Off is moving broadcaster from the BBC to Channel 4 – and for a lot of money (understood to be around £25 million per year)

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So, who gets that money? Well, the owners of the “format rights” – in this case a television production company called Love Productions Limited. This big price tag shows that television formats are big business – but what exactly have Channel 4 paid for?

How can Love Productions protect The Great British Bake Off?

It will surprise many to learn that there is no such thing as a “format right” under English law. Instead, format rights as a matter of law really are nothing more than bundles of various separate legal rights including:

  • Copyrights

Copyright law does not protect the idea of the show. What’s protected is more the expression of that idea and only for certain categories of original works such as graphical works, music and literary works. In order to try and obtain protection, the producer of a show will record as many details of the show as possible, often in a so-called bible – e.g. scripts, set designs, floor plans, logos, costumes, theme tunes, jingles etc.

It’s particularly challenging to use copyright law in the context of reality shows. Dialogues in these shows are largely unscripted. Whilst this is one of the principal attractions of these shows, it also means that these dialogues cannot be recorded in advance in a script.

  • Trade Marks

The title of a TV show can be registered as a trade mark. For example, “The Great British Bake Off” is a UK registered trade mark (no. 2557737) owned by Love Productions Limited.

In some territories, there are laws which restrain “unfair competition”. In the UK, there is a similar-ish law of passing off. These laws might, depending on the facts, protect a format from being used by a third party.

  • Contract law

Contract law can be used to prevent individuals from participating, and sharing know-how, with rival copy-cat shows.  The ability to tie a particular individual to a show might, depending on the individual, prove a valuable method of preventing a copy-cat getting off the ground.

However, restrictions on the abilities of individuals (such as Mel and Sue) to present competing shows are likely to be time-limited at the very least. Restrictions of this nature, if they exist in the first place, cannot keep individuals out of the market indefinitely. 

The English courts have never clarified whether there is a format right in law which TV format owners can rely on – and yet vast amounts of money are being traded for these formats.   

In the absence of a format right, why hasn’t someone copied Bake Off before?

With no legally recognised format right, one needs to look for an answer beyond the confines of the law. The University of Bournemouth has undertaken a fascinating study on the exploitation of format rights, which amongst other issues asked the question:

“How are television formats traded in the absence of protection under copyright law? Why pay when you can copy for free?”

According to the study, format developers used the following strategies to protect, control and exploit their formats globally:

  1. Formalising and transacting the know-how built up in a format, for example by creating “production bibles’” supplied under obligations of confidentiality and implemented via “flying producers.”
  2. Reliance on brand management (such as by way of registering trade marks and merchandising).
  3. Creating and leveraging from their distribution networks (such as speed to market through global production bases).

Would the BBC be able to make its own version of The Great British Bake Off?

Presenters Mel and Sue have already announced that they will not be hosting Bake Off on Channel 4. Paul Hollywood and Mary Berry have yet to announce their intentions. Is there any way the BBC could use this uncertainty to their advantage?

Well, for example, the BBC would almost certainly be prevented by the courts from recruiting Mel and Sue for their own bake-off show and calling it “The Great British Bake Off”. 

Love Productions’ registered trade mark should probably be able to prevent the BBC from using the name at least. 

However, the position would be a lot less clear if, for example, the BBC adopted a different name for another bake-off type show. For example, would Love Productions be able to stop the BBC using the name “Mel and Sue’s Bake Off”? 

It is doubtful. 

The term “bake off” may well not be sufficiently distinctive enough to be capable of being exclusively owned and trademarked by one company. Instead, it may have become part of generic common parlance to mean a baking competition, which as a concept was around well before The Great British Bake Off.

Would the hypothetical “Mel and Sue’s Bake Off” be allowed to take place in a marquee, which gives it a summery and village-fete like feel? This is something of a grey area and would depend on the facts.

However, Love Productions would no doubt face an uphill struggle trying to persuade an English court that it had rights to prevent a competitor from televising a bake-off in a marquee.

If the BBC was committed to producing its own new and sufficiently different bake off show, there is little doubt it could do so. Love Productions do not hold monopoly rights over the overall concept of a televised bakery competition. Given the uncertain state of the law, the problem for the BBC is that any new bake off show might still come under attack from Love Productions, even if it is different.

Love Productions has been reported in The Telegraph to have threatened court proceedings against the BBC for its new formats involving the search for the nation’s leading amateur artist (The Big Painting Challenge) and hair stylist (Hair). 

If true, Love Productions’ reported attempts to claim an umbrella of format rights found on The Great British Bake Off covering talent competitions in different fields is likely to be extremely legally dubious to say the least. The fact that a show like Hair is likely to be very different from The Great British Bake Off (location, scenarios etc) means that Love Productions’ legal position would be all the weaker. 

Nonetheless, whether out of an abundance of legal caution or for non-legal commercial reasons, it seems the industry practice is to steer well away from any existing formats and instead to focus energy on inventing new formats.    

What’s the future for Bake Off – and the BBC?

One of the lessons probably learnt from the departure of The Great British Bake Off to Channel 4 will be the reminder that a broadcaster only has temporary possession of a show, no matter how successful, if the underlying format rights (however flaky legally) are owned by an independent production company. 

It is the production company who calls the shots. They can have their legally dubious cake and eat it. Hence, no doubt, the BBC will no doubt intensify its efforts to make sure that the next Great British Bake Off is developed in-house and within Auntie’s loving and profitable embrace. 

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Piers Strickland is a Partner at Waterfront, a solicitors’ firm specialising in intellectual property law.

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