While viewing figures for the last run of the Great British Bake Off are reportedly down the program is well ingrained in the country’s popular culture. There is even a Junior GBBO presumably intended to capture some of the magic and viewers the adult show is losing. With such success comes opportunity for the owners of the rights in the program to choose the direction of further exploitation and spin off and ultimately make more money. In that context the release of an X rated version on pay TV service Zuacey is unwelcome news. According to Zuacey the videos going by the name of ‘The Great British Bonk Off’ are just a bit of fun. The company says it merely looks at what’s happening in the media and draws inspiration from that. Broadcasters Channel 4, ITV and the BBC however are likely far from amused. The Great British Bonk off starts the same as any episode of the Great British Bake Off. Actors who bear a striking resemblance to Mary Berry and Paul Hollywood and are called Mary Cherry and Paul Hardywood and introduce themselves standing in the signature marquee decorated with bunting. However within minutes the scene has been transformed from family friendly to family take cover. Mary is seen groping another baker while whisking eggs and Paul is interfering with another contestant’s apron.
So what can the law do here to help? In truth very little. An amendment to the law in 2014 means the law now protects those who reuse copyrighted material “for the purposes of parody, caricature or pastiche” . This defence to copyright infringement means that the copyright owner can’t control the use of its work and thereby means that Zuacey do not need to ask for permission from the broadcaster to make its own version. All they need to prove is that they have evoked an existing work but that it is also noticeably different, and that it constitutes an expression of humour or mockery. So while the broadcasters may be making noises about considering action they are likely being advised that their prospects of success to stop the broadcast of the Great British Bonk Off are poor and that a copyright infringement action against Zuacey should not be pursued.
Faced with such a scenario is there anything a broadcaster can do to make good of a bad situation? One argument they may consider is whether The Great British Bonk Off could be said to be a derogatory treatment of the original work. This is a right preserved to the owner of the work to object to use of the work which could be seen as a damage to its good standing and reputation. If this is a runner could the uncertainly on this point lead The Great British Bonk Off to agree a licence fee for the work even though they consider it covered by the 2014 exception to copyright. Is making money from this something that the rights owner would want? Any money changing hands would not need to be out there in the public domain. It could be subject to confidentiality obligations.
Alternately for broadcasters, is the better tactic to distance themselves from the remake and use any publicity to make clear that the show has nothing to do with them?
Finally what do the real Mary Berry and Paul Hollywood think of the X rated version and would it be possible for them to use the law which gives you rights to control the use of your image without permission come to their aid here if they felt strongly enough to want to stop the show. Quite possibly, but legal action can be time consuming and expensive and so should be embarked on only where necessary to preserve their earning potential. For that reason the most pragmatic approach for them may be to just ignore it.
There are always options when faced with commercial problems such as this. The best advice is to consider not just the legal tools available but the best commercial outcome to arrive at the optimal plan.
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Written by Margaret Briffa, Solicitor