Cakes and Copyright

Jane Lambert

According to the BBC, the US food blogger Elizabeth  LaBau has brought proceedings against the publishers of The Food Network for copyright infringement (see "US food blogger sues Food Network over snow globe cakes"  3 June 2017). Copyright infringement falls within the jurisdiction of the federal courts in the USA so I looked up recent filings in the US District Court and found that proceedings had been filed on 1 June 2017 by William Bowen on behalf of Ms LaBau against Television Food Network GP in the US District Court for the Central District of California.

 Ms LaBau blogs about cakes and desserts in her SugarHero! blog. One of her confections is "Snow Globe Cupcakes with Gelatin Bubbles". The BBC reports that Ms LaBau does not complain that copying her recipe infringed her copyright as "it is almost impossible to claim copyright over a list of ingredients" but she does object to the copying of a video explaining how to make the cupcakes, complete with edible globes made of gelatine.

I can't comment on the American proceedings because I have not seen any pleadings but I can discuss the laws that would apply to a similar case here.  First, a recipe is a bit more than a list of ingredients as you can see from any of the recipes of the well-known chef Gita Mistry whom I have advised and represented for many years (see Client Profile No. 1: Gita Mistry Food Ltd.  25 Jan 2011 "Preparation" and "Method" are also important. Those elements taken together are a literary work in which copyright can subsist if and to the extent that it is original. It is important to note that "original" is not the same as "novel". I have no idea whether Ms LaBau was the first to create global cupcakes with gelatin bubbles but, even if she wasn't, the fact that someone else invented them would not prevent copyright from subsisting in her recipe so long as she did not copy it from a recipe that had been written by another cook.

Copyright could also subsist in her video as a "film" so long as it was not copied from an antecedent film. If and insofar as the screenplay for her video was the product of independent skill and labour, copyright would also subsist in that script as a dramatic work. Of course, the first owners of the copyright in the video would be the producer and director of the work subject to any contract to the contrary. Also, the first owner of the copyright in the script would be the person who wrote it. If any of those persons was not an employed by Ms LaBau under a service contract as opposed to a contract of services, she would have to negotiate an assignment of copyright from them or join them to the action either as claimants or defendants.

Copyright is infringed by reproducing the work in which copyright subsists in any material form. Thus, making a cake to a recipe would not infringe copyright in the recipe or indeed the copyright in the film or screenplay because a cake is not a reproduction of any of those works. Photocopying or even writing the recipe down from memory would infringe but showing a cake to a chef and asking him to reproduce it without copying or referring Ms LaBau's recipe at ant time would be lawful.  Similarly, making a similar film would not be actionable unless the defendant reproduced a substantial part of the film or screenplay or referred to it in some way.

Other ways of protecting recipes include keeping them secret as the  Coca Cola Corporation has done with the recipe for its fizzy, sugary brown beverage and the Carthusian monks with their Chartreuse and registering a distinctive trade mark for the global cupcakes confection (see In re FAT BETTY, Betty & Taylors Ltd v Cheese & Co.  BL O/163/09 16 June 2009). A trade mark would not stop Ms LaBau's competitors from making fluffy cupcakes encased with gelatine but it would not them from marketing them under the same or confusingly similar brand.

If you have, or your client has, a food business and you want advice on protecting your investment in creating and marketing your creations or on any other issue relating to your brand, creativity or technology, give me a ring on 020 7404 5252 during office hours or send me a message through my contact form. 

Finally, I saw a really hilarious monologue by the comedian Bilal Zafar at the Southbank Alchemy festival in Doncaster this weekend. He told us how he gently took the mickey out of those who have a problem with Muslims by tweeting about a fictitious Muslim only cake shop in Bristol. Its only relevance to this topic is that the show is called "Cakes". He has posted a video of his banter to YouTube which I am sure you will enjoy.


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