Renowned cookbook author and founder of RecipeTin Eats, Nagi Maehashi, has taken to social media accusing food influencer Brooke Bellamy of plagiarising two recipes from the RecipeTin Eats website.   

Bellmy's new cookbook, Bake with Brooki,  includes recipes for caramel slice and baklava, which Maehashi claims use identical ingredients, measurements and instructions to those found on the RecipeTin Eats website. 

The official RecipeTin Eats Instagram page posted side-by-side images of its recipes and those which are allegedly plagiarised, inviting followers to make their own judgments on the matter.  

Despite the similarities, Bellamy denies the accusations, as does her publisher, Penguin Australia. 

Interestingly, Maehashi's online accusations refer only to plagiarism, which itself is not a legal concept. However, the social media storm surrounding this incident has led many to speculate about whether Bellamy's actions constitute a breach of copyright and the operation of copyright law more generally.  

This article seeks to explain how the law of copyright operates in relation to works such as recipes. It is not a comment on any particular case, nor a discussion as to the ethics of plagiarism. 

To start, we need to briefly revisit what copyright is.  

Copyright refers to a bundle of exclusive rights that a copyright owner holds in relation to the use of their material. These rights include the right to reproduce, communicate, and make their work public for the first time. 

In Australia, copyright protection is not contingent upon registration; it is free and automatic.   

Unless an exception applies, those who use copyrighted material in certain ways without the permission of the copyright owner have infringed copyright.

What is protected? 

The first step to exploring the operation of copyright law in relation to recipes is asking whether recipes are entitled to protection under the Copyright Act 1968 (Cth), and if so, under what circumstances. 

The often repeated maxim is that copyright does not protect ideas, information, or techniques. 

This means that the idea to invent a new flavour cookie, as well as the ingredients and methods needed to bake that cookie will not attract copyright protection. 

Copyright protects the material form of a work.  

For the purposes of copyright protection, a recipe in a cookbook or on a website may be treated as:  

• A 'literary work' in relation to the written words;  

• an 'artistic work' in relation to the photographs included with the text; and 

• perhaps a 'published edition' in relation to the layout. 

For the purposes of this article, we are focusing on the words of a recipe as a literary work. 

Originality  

The obvious difficulty with claiming copyright in a literary work containing a recipe is proving that the work is original, particularly in a world where recipes are passed down from generation to generation, traded freely and easily accessible. 

At first glance, "originality" appears to set the bar for protection quite highly. However, novelty and inventiveness are not requirements for originality. Instead, a literary work will be original where it can be proved that the work: 

1. Derives from the author; and 

2. the author has not copied another piece of work. 

Further, a work may be original even where it derives from an earlier work, such as a recipe passed down within a family. However, what must be proved here is that the newer work does not simply copy the earlier one. It must be shown that independent skill was used to create the new work.  

Independent creation 

Copyright is not intended to operate as a legal monopoly. Accordingly, the mere fact that two works are identical or similar is not enough to establish copyright infringement.  

Rather, what must be shown in order to prove infringement is that a "substantial part", of an original work has been reproduced, adapted or copied.  

"Substantial part" is not a reference to the quantity of the part, but rather its quality. Accordingly, reproducing a very small portion of a work may still constitute copyright infringement if the small portion is deemed 'substantial'. 

The following factors will be taken into account when considering whether a part of a work is substantial:  

• The originality of the part; and 

• how essential or material the part is to the work. 

Further, in order for copyright infringement to occur, there must be a causal connection between the original work (in which copyright exists) and the potentially infringing work. What this means is that infringement will not be found in circumstances where it can be proven that a work was independently created. 

Have I infringed copyright in a recipe? 

As copyright owners have the exclusive right to reproduce their work, individuals will require permission before reproducing it. This then begs the question "Have I reproduced a recipe by simply following it?" 

Given that the purpose of recipes is to follow them, unsurprisingly the answer to this question is, "no". 

However, posting a picture of a recipe online for others to see without the copyright owner's permission is likely to constitute a breach of copyright, particularly where a special exception does not apply.   

Intellectual property is not only deeply personal to creators, but it can also be extremely valuable. One only needs to look at how profitable both Maehashi and Bellamy's respective cookbooks have been to see that this is the case. Consequently, copyright owners ought to take tangible steps to protect their copyright in commercial ways. 

Ownership 

It is prudent for all creators to keep evidence of how a particular work was created. This may include retaining draft and dated copies of works. Such evidence will be useful should a dispute as to copyright ownership arise.  

Protecting against infringement  

While it is impossible to entirely prevent others from breaching copyright, certain tools may be used by creators to decrease the chances of its occurrence. These include: 

• Imparting any information regarding a recipe or other work confidentially; 

• using technological protection measures; and 

• drafting contract terms in commissioning agreements which detail how copyright will operate in the particular context. 

Those who have been engaged to produce certain works which may attract copyright protection, or have been told information that may be confidential in nature, ought to be aware of their responsibilities before taking any actions that may constitute a breach of copyright.  

• The Copyright Act 1968 (Cth) will only protect information once it is in a material form such as a 'literary work'. Mere concepts and information are not protected. 

• A 'literary work' must be original in order to be protected under copyright. 

• Simply following a recipe will not constitute copyright infringement. 

• It is prudent for creators to take proactive steps to try and prevent instances of copyright infringement. 

• Similarly, individuals ought to be aware of the exclusive rights of copyright owners so as to avoid an action being brought against them. 

Please reach out to our Intellectual Property team if you would like some assistance in identifying your copyright or managing any risks to it.