Has Great British Bake-Off Bitten off More than it Can Chew?

The BBC has recently produced and aired a big-budget trailer to advertise this year's much-anticipated series of the Great British Bake-Off. The advert showed Mary Berry, celebrated television baker and judge on the show, frolicking around a hillside à la Julie Andrews, to a soundtrack very similar to the principal song of the famous 1959 Broadway musical and 1965 film, The Sound of Music, by Richard Rodgers and Oscar Hammerstein II.

The BBC intended the advert to be a parody of the original song, and though the music was the same, different baking-related phrases replaced many of the original lyrics. For example, "The hills are alive with the sound of music" was replaced by "The hills are alive with the smell of baking", and "My ear wants to sing every song it hears" was swapped with "I just want to taste every cake that I baked", in the BBC version.

However, the copyright owners of the original song have made very clear their disapproval that no licence was applied for or granted for the use of the music.

Under the Copyright, Designs and Patents Act ("CDPA") 1988, the unauthorised use of a copyright-protected work amounts to infringement, unless counts as an exception. Up until 1 October 2014, every creator of a parody work risked court action for infringement, but section 30A(1) of the CDPA introduced an exemption for caricatures, parodies and pastiches of copyright-protected works, under the 'fair dealing' exception.

The BBC has since removed the promotional piece from the air, however, they have stated that the withdrawal was not in response to the copyright complaints and that the advert was only ever intended to run for 3 weeks. They have asserted that, in any case, copyright in the original music has not been breached because of the right of fair dealing under the CDPA.

Whether the BBC trailer amounts a parody is debateable. Under the EU case of Deckmyn (Case C-201/13), the fundamental features necessary for a work to constitute a parody are "first, to evoke an existing work while being noticeably different from it, and, secondly, to constitute an expression of humour or mockery".  Though the judgment has attracted some criticism for its apparent ambiguity and leaving issues unresolved, it indicates that the advert here could be classed as a parody, and could therefore be protected from any potential action under the fair dealings exception.