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20th August 2015

Let Them Eat Cake (but no copying allowed!)


20th August 2015

Let Them Eat Cake (but no copying allowed!)

Three episodes in and we are already addicted to the new series of Bake Off. Black forest gateaux, biscotti biscuits, homemade bread, what is there not to love?

To announce the sixth series of bake off, the BBC created an advert which was a spin off to the musical – The Sound of Music. The hosts were seen on the top of a hill singing their own baking lyrics to the original tune of the title song, created in 1959 by Rodgers and Hammerstein. The song became even more famous with the 1965 film adaptation sung by Julie Andrews. The song is still protected by copyright under US Copyright law, (assuming the song was created in the US) which is reciprocated internationally under the Berne Convention.

It appears however, that the BBC could not have their cake and eat it! The copyright owners of the song, publisher Rodgers and Hammerstein part of the Imagem Group, disapproved of the advert, stating that no licence had been granted for use of the music and accordingly, the BBC’s use of the music amounted to an infringement of their copyright. “The advert campaign utilising The Sound of Music is neither authorised nor approved,’ said Bert Fink, senior vice-president (Europe) for Rodgers & Hammerstein

The BBC took down the advert, denying that it was in response to the alleged infringement and claimed that the trailer only had a three week run in the lead up to the new series starting. They also denied any copyright infringement due to the fair dealing provisions relating to parody (see below).
So, had the BBC infringed on the owners copyright of the music despite changing the lyrics? A song has two sets of copyright (more probably if you start to look at the recorded word in terms of technical production and audio capability) – the first in the musical score and the second in the lyrics. Whilst, different words might get around an infringement of the lyrics, use of a substantial part of the musical score seems to have taken place.

Section 16 of The Copyright, Designs and Patents Act 1988 (CDPA) lists acts restricted by copyright in a work. The acts relevant to the advert are the performance, showing or playing the work in public, communicating the work to the public and making an adaption of the work. Theoretically, it would seem that an infringement might have taken place. Luckily for the BBC, on 1 October 2014 section 30(A)1 of the CDPA came into force, which states that fair dealing of a work for the purposes of caricature, parody or pastiche does not infringe copyright in the work. The essential characteristics of parody according to the Court of Justice of the European Union, are “to evoke an existing work while being noticeably different from it, and secondly to constitute an expression of humour or mockery.” Whilst it would appear to us that the BBC advert might well have been intended to be a parody, it appears that the copyright owners of The Sound of Music did not see the funny side.

It will be interesting to see whether Rodgers and Hammerstein, now persist with legal action in respect of a damages claim, despite the fact that the advert has been removed, or whether, from a perspective of keeping the public on side (given the popularity of British Bake Off) they are content to have achieved the removal of the advert. We shall keep you posted.

Please do get in touch should you have any copyright concerns.

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