GBBO - A Showstopper format

04 Sep 2017

The Great British Bake Off is a showstopping format

We like cake. We like watching competitions on TV. When you combine them, you create a winning TV format that ran for seven years on the BBC and attracted 10.4m viewers for the first episode of the last series. Last autumn, Channel 4 controversially acquired the rights to broadcast The Great British Bake Off from Love Productions for three years for £75m and despite losing the two original presenters and a judge, about 6.5m viewers watched the first episode on Channel 4 on Tuesday night. However, most lawyers will say that there is no “format right” as such, so what did Channel 4 pay for? Priya Nagpal, Of Counsel at Simmons & Simmons explains.

Channel 4 invested in a tried and tested recipe for a successful TV program. The Great British Bake Off format has already been exported to 23 countries, with local versions in Australia, Brazil, Belgium, Germany and the Netherlands. As such, Channel 4 was faithful to the GBBO format. The first episode opened with its familiar intro and theme tune. Fans were greeted by shots of the white marquee housing pastel coloured workstations for the contestants. The 12 contestants from a variety of backgrounds were instantly likeable, as they completed their Signature, Technical and Showstopper bakes. There was cheeky banter amongst the new presenters and contestants, recognisable catchphrases (e.g. “On your marks, get set, bake!”) and even a couple of “Hollywood handshakes”. In contrast, when the BBC retained the rights to Top Gear and Jeremy Clarkson, Richard Hammond and James May moved to Amazon Prime to create The Grand Tour, their challenge was to develop a new car show, which did not reproduce the protectable elements of Top Gear or infringe the BBC’s rights.

The various elements of a TV format are protected by different rights. Trade marks and designs will protect the name and logo of the program. Confusing the public about the origin of the format may give rise to a passing off claim and obtaining an unfair business advantage could prompt an unfair competition claim in some jurisdictions. Some production know-how may be confidential information. Copyright will protect, for example, the music, graphical elements and any scripts. Format owners have also typically relied on copyright to protect the structure and combination of the various elements, including the choice and personality of the presenters and filming techniques. These have proved to be difficult claims as, from an English perspective, the format lacked the necessary definition, certainty and unity to be protectable as a copyright work. Most recently, in the UK, the Ukulele Orchestra of Great Britain’s claim for infringement of copyright in the format of its performances by rival The United Kingdom Ukulele Orchestra failed for these reasons (although the claim for passing off succeeded). Format owners have also been successful in other countries, such as Brazil, the Netherlands and Spain.

FRAPA, the Formats Recognition And Protection Association, has recognised the differing approaches of Courts around the world and adopted a more pragmatic solution. FRAPA recently launched its Formats Analysis Service, where it will analyse potential copy-cat formats for its members who have previously registered their formats with FRAPA and offer an opinion on whether the copy-cat format is too similar.

In the meantime, TV formats continue to be distributed and exploited globally, with the European market alone valued at $2.93bn in 2013. In order to succeed, savvy format creators should define and capture their formats properly, register program titles and other distinctive elements, and ensure that they develop a consistent format exploitation strategy across local markets, as they compete to get their ideas to market first.

For more information visit http://simmons-simmons.com/en/services-and-sectors/intellectual-property

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