Posted on Sep 26, 2016 in Intellectual Property by Liam McMonagle
Brexit, Syria, Donald Trump and the end of Brangelina have all been fighting for airtime on the news in recent weeks. But for many of us the biggest story of all has been the shock that a baking competition is changing channels. As news emerged that Channel 4 had paid £75m for three years’ rights to screen the Great British Bake Off, we struggled to find enough baking-related metaphors and puns to talk about it.
It’s certainly a lot of dough for one state-funded broadcaster to throw to make toast of their public sector rival. But have Channel 4 bought a recipe for commercial success – or will the show now sink like an undercooked soufflé?
As an intellectual property lawyer, this situation highlights a lot of the practical problems we have to deal with in creating, buying, selling and licensing assets that can’t be held, touched or put in a bank account.
After all, what is a “TV programme format”? Just like knowing how to make the perfect bakewell tart, it’s not something that can be “owned” in a normal sense. Love Productions, which owns the Bake Off rights, can’t stop the BBC or anyone else making a programme based on a baking contest.
But lots of components within a programme will be protected either under copyright or as trademarks. Music, images, logos, catchphrases, film clips, programme titles and scripts can all be protected individually. Though there is no recognised property right in a “format”.
Other important aspects of a show, such as the key on-screen presenters and production staff, will usually be required to sign agreements that may limit their ability to work on competing or similarly-themed shows. Taken together, this creates a bundle of intellectual property and contractual rights which will allow the format “owner” to control the programme and sell rights to make it.
The global market for these rights is highly lucrative because it allows broadcasters to invest in a successful show from another country which can be localised for another country, rather than taking the risk of developing something new from scratch. Any Strictly viewer who has watched the US adaptation, “Dancing with the Stars”, will recognise straight away how the process works.
The negotiations between Love Productions, the BBC and then Channel 4 will have been carried out in secrecy. The key issue at the first stage was presumably how much the BBC would pay to extend the previous agreements. Clearly the producers had a much higher sum in mind than the BBC. The BBC has to operate within numerous governance constraints – one of which is its treatment of Bake Off as a “factual” rather than “entertainment” programme which affects how much it can spend. It is also subject to regular criticism if it is perceived to be profligate with licence payers’ money or unfairly competing with commercial broadcasters.
As such there was going to be a limit to how much it would pay and it looks like Love Productions set their price some way above that. Channel 4 was, however, willing to meet that price.
With Mel and Sue immediately announcing they wouldn’t be moving with the show – and Mary Berry following suit shortly afterwards – some critics have suggested Channel 4 has bought Paul Hollywood and a tent for £75m.
This is maybe a bit simplistic, however it is certainly odd that for such a high-value format the producers appear not to have tied down the key people or at least got them to agree to the change.
It is possible to agree these deals subject to various conditions, such as signing up key presenters, which are dealt with after the main contract is signed. If they are not fulfilled, a party might be able to pull out.
It does not sound as if this was part of the Channel 4 deal because if it was subject to important conditions like that, it would probably not have been announced.
Only time will tell if the new recipe will prove equally tasty to viewers.
Much of the commentary suggests this could well be a good business decision even if the new Bake Off loses a lot of viewers. Many formats have undergone changes of presenters and judges without suffering too much. In business terms, a TV show which is almost entirely a vehicle for key individuals might not have a sellable format, if it is all about the stars themselves. Look at the difficulties the BBC have had with Top Gear since Jeremy Clarkson’s departure.
Maybe Love Productions and Channel 4 are confident they can make a success of Bake Off with a different on-screen team. But it is notoriously difficult to predict which shows will be hits and which won’t be. No one really knows whether Bake Off without Mary, Mel and Sue will justify its price tag or not.
If it doesn’t then some Channel 4 executives may end up eating humble pie.
Liam McMonagle is a specialist Intellectual Property, Media and Technology solicitor. We are always delighted to talk without obligation about whether we might meet your needs. Call Liam on 01382 229111 or email firstname.lastname@example.org