Bake Off, Off and On

By Brand Heeler

Iconic UK TV show The Great British Bake Off announced it would be moving from national broadcaster BBC to rather less mainstream Channel 4

Forget Brexit – the only news anyone’s talking about lately is the revelation that The Great British Bake Off will be moving from the BBC to (whisper it) Channel 4… Worse, it may not even survive the move since most of its presenters have announced they will not be following the show to its new home. Channel 4 are reported to have outbid the Beeb by £10 million, but what exactly have they got for their money?

Bake Off is just one of many internationally marketable reality TV formats, a somewhat vague concept beloved of commissioning editors but notoriously hard to pin down. Formats are hugely popular in the international broadcast market, occupying a similar niche to the role of franchises in the retail and restaurant sectors. They allow a tried and tested formula to be easily expanded into new markets where they can benefit from the original’s reputation while accommodating local variations as necessary.

The industry may blithely treat formats as licensable commodities, but this glosses over the fact that most legal systems (except for a few enlightened jurisdictions such as Italy) don’t regard them as ‘things’ in their own right. Instead, they’re viewed as bundles of disparate rights such as trade marks, goodwill, copyrights, contracts, unfair competition rights etc. and this is what counts if you need to turn to the law for help.

Of these bundles, trade marks and goodwill are among the strongest options – protect a show’s name and its general reputation, and you’re halfway there. A catchy name (Geordie Shore?) is a start. A unique look-and-feel (the distinctive Millionaire set and layout) can help, but accessories don’t – of themselves – make a show, as Opportunity Knocks found out as long ago as 1989.

It would be nice for producers to be able to claim a copyright or two, but there’s a difference between ideas (not copyrightable) and a specific expression of ideas (copyrightable). Formats like Bake Off don’t rely on old-fashioned scripts or predetermined dramatic devices for their appeal. They’re more about bringing together a combination of factors and seeing where that leads, but that means they’re also typically too generic and insufficiently ‘original’ to be protectable.

Say you’ve got a great idea for sticking a load of strangers together in a small space and filming what transpires – at that level of detail, you might be describing Big Brother, but it could also be Murder on the Orient Express. Or Cube. Or Huis Clos (mais oui!) You’ll need much more specificity before you get something you can lay exclusive claim too.

Contracts can be very useful, tying in specific presenters and broadcasters to exclusive deals. A lot of the discussion about Bake Off’s future prospects has centred on how its winning recipe has been so dependent on its presenters and judges. Can it do without Mel and Sue? Possibly. Can it survive without Mary? Maybe not. Paul? Say it ain’t so! (Could it even be the same away from BBC1? Hmmm…) The recent travails of Top Gear as it struggles to outgrow some fairly dominant personalities show how messy it can be to separate talent from other aspects of a show, especially when the two become synonymous in the minds of the viewing public.

At the end of the day, the idea of baking cakes in a tent is as old as village fetes and there’s clearly more to Bake Off than just that. Identifying exactly what, however, is a trickier question. And nailing that down in legal terms is harder still. By following the money to Channel 4, Bake Off’s producers need to be careful they don’t kill their golden goose – if they don’t own, or can’t control, or can’t understand what makes their show so special, they risk turning something as perfect and comforting as the finest Victoria sponge into something as unappetising and stodgy as the soggiest sunken soufflé.

This article contains our thoughts and opinions on an issue of general interest and is written from the perspective of Australian and/or English law. It is not legal advice and is not provided in the context of a solicitor-client relationship. It may not even be relevant to your jurisdiction. No duty of care is assumed or accepted. Please carry out appropriate research and consult with a suitably qualified legal expert before taking any action or making any decisions.

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