Who: Rodgers and Hammerstein (“R&H”) and the British Broadcasting Corporation (“BBC”)
Where: UK
When: 2 August 2015
Law stated as at: 25 August 2015
What happened:
The BBC has been accused of copyright infringement following a 30 second trailer aired in advance of this year’s series of the popular television show, the Great British Bake Off (“GBBO”). The ad depicted hosts Mary Berry and Paul Hollywood singing a song with the melody of The Sound of Music, but with different lyrics to the Julie Andrews classic:
“The hills are alive with the smell of baking,
With cakes that we baked for a thousand years.
The hills fill my heart with a love of baking.
I just want to taste every cake that I baked.”
The original lyrics of the song were as follows:
“The hills are alive with the sound of music,
With songs they have sung for a thousand years.
The hills fill my heart with the sound of music.
My heart wants to sing every song it hears.”
R&H, the copyright owners of the original song, which dates from 1965 and is still protected by copyright, reportedly complained to the BBC, stating that the use of The Sound of Music was neither authorised nor approved.
The proof is in the parody
The BBC swiftly withdrew the trailer, claiming that it was only meant to run for three weeks and that their use of the trailer was a legitimate use, relying on the fair dealing exception for parody under the Copyright, Designs and Patents Act 1988 (“CDPA”).
Copyright law states that it is the owner/creator of a work who has the exclusive right to show or communicate the work to the public or to make an adaptation of the work. Copyright will be infringed by any third party who does this without the permission of the copyright holder. However, there are several exceptions to copyright infringement and, from 1 October 2014, a new section 30A(1) of the CDPA came into force, which allows fair dealing of a copyright-protected work for the purposes of caricature, parody or pastiche.
BBC might have had the ingredients for success
The Court of Justice of the European Union (the “CJEU”) examined the parody exception in the 2014 Deckmyn v Vandersteen case which had been referred by the Brussels Court of Appeal. The CJEU held that the essential characteristics of a parody are that it evokes an existing work while being noticeably different from it, and that it constitutes an expression of humour or mockery. The CJEU held that there were no other conditions to define parody, leaving it to the national courts to make a decision.
While, in this case, the alleged infringement never escalated into a dispute which was heard in front of English courts, there is certainly a case to be made that the BBC could have relied on the section 30(A)(1) exception. Although the melody was identical, the lyrics were certainly different. The GBBO version therefore could be argued to be evocative of the original song, but with the difference in the lyrics making it “noticeably” different to the original work and constituting an expression of humour or mockery. Whether a court would have viewed the difference as “noticeable” is not certain in the absence of UK case law on this point, but it would seem possible. That said, the court would have also considered whether this use was “fair dealing” and whether it was limited to the purpose of parody: the fact that this trailer was of a commercial nature would arguably have worked against the BBC in this regard.
Why this matters:
Marketers should remember that, although there will always be a temptation to risk a humorous ad which uses another party’s copyright material on the basis that the parody exception is available, until the extent of the exception is tested in the UK courts, it is unclear how widely it will be interpreted. At present, there remains a risk that, at the very least, the copyright owner could publicly assert their rights on the basis that the use is not “fair dealing” and therefore put pressure on marketers to remove the material in question.
