Food Fight – Who Owns “My” Chilli Crab?

December 9, 2010

By Vicki Huang

The Australian cookbook industry seems totally immune to the tendrils of the GFC.  Sales over the past 2 years are reported to have grown by over 35%. By the end of this year, Australians will have spent $90 million dollars on cookbooks which represents sales of 4.5 million titles annually. At least 10% of these sales are spinoffs from the Masterchef juggernaut. For example, 2009 winner Julie Goodwin has sold $3.7 million worth of her book “Our Family Table”.

There has also been an explosion in food blogging. (Click here for Paul Best’s summary in The Age). Food bloggers themselves can become as famous as celebrity-chefs.  For example, net-sation Julie Powell’s blog (which outlined her efforts to cook Julia Child’s “Mastering the Art of French Cooking”) was turned into a film starring Meryl Streep.

Our own net-sation “Not Quite Nigella” has recently reported that her blogging exploits have been optioned into a book. The Australian Association of Food Professionals in their Food literati awards have begun to award prizes for the best food website and the best food blog. There are also websites that review both cookbooks and food blogs! See www.cookmybooks.com.au

The food revolution in Australia and the food writing it produces shows no signs of slowing down.

But just as there are only “seven stories”, are there only a handful of ways to roast a loin of pork? What kind of copyright issues come up with cookbook writing and food blogging?

Earlier this year the saga of the Seinfeld v Lapine “You stole my recipes!!” case came to an end in the US 2nd Circuit Court of Appeals. In the case, Jessica Seinfeld (wife of Jerry) published “Deceptively Delicious”, a celebrity (by proxy) cookbook that was hugely successful (i.e. was shown on Oprah) that tricks kids into eating vegetables.

Missy Chase Lapine claimed that Seinfeld had infringed the copyright of her book “The Sneaky Chef”. Both books share the central idea of using vegetable purees for use in children’s food. The Federal Appeals court rejected the claims that Seinfeld infringed the copyright and trademark in Lapine’s book, upholding the lower court’s decision. The court held “…Stockpiling vegetable purees for covert use in children’s food is an idea that cannot be copyrighted”.

Having read both the Seinfeld and the Lapine cookbooks, I would say that had the case been in Australia, the outcome would be the same. They look nothing alike, and there don’t appear to be any images or recipes reproduced in Seinfeld’s book. In Australia, as in the US, there is only very thin copyright over recipes and certainly no copyright over ideas. A recipe is also not patentable under s50(1)(b) of the Patents Act which precludes claims that are a “mere mixture of known ingredients”.

The fight over the ownership of recipes goes beyond the courtroom and can have can have geo-political significance. Last year the Malaysian Tourism Minister started a major food fight when she claimed that Singapore staples – Chilli Crab and Hainese Chicken Rice, were indeed “Malaysian”. Singaporeans who are probably the world’s biggest foodies (this comment may start its own food fight) were naturally outraged. The statements caused a flurry of comments in the press across the region.

So what copyright can exist in a cookbook, and relevantly to bloggers, what copyright exists in a recipe that is reproduced online?

A recipe in its written form is likely to be protected by copyright. However, to infringe the copyright, you would probably have to copy and reproduce the recipe verbatim. This is because there is no copyright in a list of ingredients. Nor is there copyright in ideas. There is also no copyright in the expression of a method of preparation unless it qualifies as a literary work i.e. it has to be more than just a list of steps.

Artistic works such as the photographs and illustrations are a different issue and are likely to be separate copyrighted works.

Regardless, numerous fair dealing exceptions to copyright infringement exist, in particular, fair dealing for criticism or review. In this context a user can reproduce the cookbook or recipe so long as there is genuine criticism or review of the work.

So what is a cookbook author or blogger to do?

If taking a “substantial” part of a work, then permission from the copyright owner is required. However, it is arguable whether taking one recipe from a cookbook is going to be considered taking of a substantial or essential part. Moreover, if the recipe was slightly modified e.g. the method re-worded, then the “new” recipe may not be considered a taking at all, rather a new literary work in itself.

It seems however that an attribution protocol has emerged amongst food writers online. I would have to say it is a conservative and polite approach that is probably going to keep most food writers out of trouble. Perhaps this is an example of moral rights applied defacto in cyberspace?!  Here is what I see as the netizen rules of food writing:

1.      When in doubt, seek permission;

2.      If reproduction of the recipe is for criticism or review then it is “fair dealing” but always give an attribution;

3.      If you slightly modify a recipe, then preface your version with “adapted from” and add an attribution;

4.      If you modify the recipe significantly i.e. about 10% of it, then it’s likely that the recipe can be called your own.

Copyright protection on cookbooks and especially individual recipes is very thin. Despite this, cookbook publishing is reaching a high point. This is probably because production values have improved to meet discerning customers who understand the beauty in a coffee table cookbook.

At the same time, food writing is having its own “salad days” and with the plethora of food blogs there has been a lot of recipe reproduction on line. To keep food writing on the Internet at its interesting pace, it’s probably a good thing that recipes attract little copyright protection.  The copyright gods have probably got the balance right.

Vicki Huang teaches at the Melbourne Law School

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