Hungry for a Fight - Are There Rights in a Recipe How-to Video?

Food has become incredibly trendy in recent years (not that people didn't eat in years before), and many aspiring home cooks and chefs alike have moved onto modern platforms to share their know-how and passion with others. Sites like YouTube are filled with instructional and entertaining cooking videos, garnering millions of views from all over the world. Because of this, there is tremendous value in these videos and their viewers, and competition can get heated. This blog has discussed IP and food before (more here and here), and this writer has just come across a very interesting dispute over a how-to video involving cupcakes.

While the case has only recently begun, it still shows an interesting facet of copyright, particularly surrounding recipe videos.

The case of Elizabeth Labau v Food Network (complaint accessible here) concerns a recipe video made by Ms Labau for her website SugarHero. After a very successful online recipe that went viral, Ms Labau created a how-to video showing how to make her recipe step-by-step, following the success of her recipe article, which was subsequently published in December 2016. Sometime later in December 2016, the Food Network had published a video illustrating their take on the snow globe cupcake, and according to Ms Labau, copied numerous elements from her video, including "...choices of shots, camera angles, colors, and lighting [and] textual descriptors". Ms Labau has since complained to the District Court of the Central District of California, alleging copyright infringement.



Alex's take on cupcakes was a little "unique"

Although the decision from the District Court is still pending, the case will face its share of problems along the way. Ms Labau has not asserted copyright infringement in the recipe for the snow globe cupcakes, but only in the video showing how to make the cupcakes themselves. As discussed on this blog before, recipes are incredibly difficult to protect, and the only thing one can pursue in relation to them is the expression of that recipe, i.e. pictures or video. A simple list of ingredients won't be protectable.

It'll be interesting to see where the case goes, and whether the Food Network has actually copied elements of Ms Labau's video. Due to the proximity on posting the videos it is likely that one took inspiration from another, but as long as the expression of the recipe differs from Ms Labau's video, it'll be difficult for an argument for infringement to be established. This writer thinks Ms Labau could have a case, but this would require a near exact shot-for-shot recreation to have much strength in a court of law.

This writer does think that the case will most likely settle out of court, but a proper inspection of how-to videos and copyright would be very interesting, considering the generic nature of these types of videos. The style of many cooking how-to videos are only distinguished through choices of lighting and general filmography, and this writer thinks it would be interesting to see whether a sequence of steps could attract copyright protection, and how close would one have to get to infringe those rights, seeing as the style of these types of videos if widely established. Should the court side with Ms Labau, it could open the floodgates for many claims involving simple step-by-step videos of the same, or similar recipes to fight for the scrupulous viewership of today's Internet populace.

Source: Hollywood Reporter

A Piece of Humble Pie - Design of Apple Pie Not Registrable, Says US Court of Appeals

What is more enjoyable than a case involving food and an intellectual property law? This writer for one will freely admit his love of both, and any case that presents a scenario mixing the two is a delight. Many recent cases have touched on the design of various food items, including the recent Kit Kat litigation in the UK (discussed more here) and in the CJEU (discussed more here), and as manufacturers and makers of edible goods compete for marketshare, the shape of these items can become quite valuable and important. One still has to distinguish this from recipes (discussed more here), and while they are much less likely to be protectable, shapes are a different matter altogether. With that said, could you protect the shape of a dish, specifically a pie? The Court of Appeals in the US aimed to answer this question only late last month.

The case of Sweet Sweet Desserts, Inc. v Chudleigh's Ltd dealt with a design of a single-serving apple pie, meaning a whole pie meant for one person in a neat, convenient package. This particular food item was the creation of Scott Chudleigh, the owner of an apple farm and bakery in Ontario, Canada. It consisted of a ball-like shape, with upward facing, spiralling petals that overlap each other, encasing the apple pie filling within. He subsequently filed for a trademark in 2005 (US trademark 2262208, which includes an illustration of the design). The pies where distributed to various companies for resale, including a discussion with Applebee's in the US for the sale of the item in their restaurants, but the negotiations fell through. In 2010 Applebee's approached Sweet Sweet Desserts to create a single-serving apple pie, much akin to the idea conjured by Mr Chudleigh, who developed an "apple pocket" with a pie-like bottom and an overlapping spiral top design, leaving a gap in the top (subjectively quite similar to Chudleigh's apple pie design).  After launch Mr Chudleigh noticed, through online advertising, the similarities of the two designs, and took Sweet Sweet Desserts to court over trademark and trade dress infringement.

Little Jimmy's "floor pie" was received with less enthusiasm

The first issue dealt with by Justice Shwartz was whether Chudleigh's design was merely functional, and thus not registrable as a trademark. 15 USC section 1125(a) prohibits the use of any marks that would deceive a consumer as to the origin of goods or services, potentially including the aforementioned design, provided the design is not only functional and thus not a designation of such an origin. Justice Shwartz further set out that "...in general terms, a product feature is functional, and cannot serve as a trademark, if it is essential to the use or purpose of the article or if it affects the cost or quality of the article". Even if a feature were deemed to not be functional, a court can still find against the owner should the mark put competitors "...at a significant non-reputation-related disadvantage", therefore potentially restricting competition in the field (i.e. if a design or shape of a mark is essential or near-essential to the creation or presentation of certain types of goods).

What the Court found was that the design was indeed functional, as "...the shape of the dough is essential to the purpose of an effective single-serving fruit pie, and affects its cost and quality". Arguably this is correct, since the folding of the dough in order to seal the filling into the pie does just that, and does not, at least for the most part, act as purely decorative, clearly designating an origin for those particular pies. Mr Chudleigh admitted to this fact somewhat, stating that the use of the dough in that particular shape was designed to save on cost and to fill a particular market need for single-serving pies. Additionally, the number of 'petals' in the pies would be predominantly as a functional aspect, giving the best results for holding in the filling and baking, again enforcing a lack of decorative purpose and pure functionality. The Court therefore determined the design to be functional, and revoked Mr Chudleigh's registration.

The final claim dealt with by the court was Sweet Sweet Desserts' claim for tortious interference with their relationship with Applebee's through Mr Chudleigh's assertion of his alleged rights (being very similar to groundless threats in the UK). Justice Shwartz quickly ruled against this claim, determining that Mr Chudleigh's cease-and-desist letter, sent to Applebee's after his discovery of the Sweet Sweet Desserts' apple pie, since the letter was an "...objectively plausible effort to enforce rights" and not a sham to extract a settlement from the parties prior to a full case. Even though he failed in the case at hand, losing his rights in the design, does not take away from his legitimate belief at the time as to the existence of these rights. The Court ultimately allowed the application for summary judgment for both parties.

The case, albeit not ground-breaking in any way, is a curious predicament for the law, especially considering the uncertain world of food-related trademarks and rights. This writer would fully agree with the Court, since the design of the pie was purely functional, and any decorative or indicative purposes were either incidental or minor in the grand scheme of things. It is unclear whether Mr Chudleigh could have succeeded in a claim for passing off in the UK, and this writer sure does have his doubts as to this, but the idea would seem to be a novel one as a hypothetical.

Source: JDSupra

Can You Own a Recipe? When Food Meets Intellectual Property Law

Food is quite important to all of us, and not just because of its nourishing quality and necessity for life, but also for the sheer enjoyment of a dish which has been prepared with care and love. This writer for one will freely admit that he loves to both cook and eat (often the latter more than the former), which prompted me with a thought in the process of seeking out recipes to make: can you own a recipe, or if anything, are recipes protectable under intellectual property law? Upon initial thinking the question seems to beg an answer, since recipes are undeniably creations of great creative efforts, planning, knowledge and skill, which, prima facie at least, should afford it some level of protection. This aside, food is ubiquitous to all cultures, peoples, and as said above, a necessity, which would render their protection draconian or even preventative of the enjoyment of cultural aspects for the larger masses should recipes be isolated to only a select few. The question indeed deserves an answer, and I shall endeavor to do so below, separating the matter into each type of intellectual property.

Recipes and Copyright

Often people's first memories of recipes is a dusty old tome which their grandparents have kept and compiled over the years, containing family recipes and secrets from generations ago. Whether it is Gordon Ramsay or your lovely grandma, recipes take effort and skill to create and compile, being put into tangible form either on paper or online. Under the UK Copyright, Designs and Patents Act 1988, and similarly its US, Australian and Canadian counterparts, copyright protection is afforded to original literary works; however this protection is given to the expression of those literary ideas, not the ideas themselves (expanded more on this very blog here and here). Recipes, therefore, potentially could be protected under copyright should they be expressed in a very specific or original manner; however the ideas of the recipes themselves (for example the concept of a pancake) cannot be protected by copyright.

Some recipes are more 'original' than others

This was specifically discussed by the Australian IPO (link leads to an external PDF file), which this writer thinks is an accurate representation of the laws' applicability in most common law countries: "[t]he owner of copyright in a recipe has certain limited rights to control the manner in which their written recipe is used. This does not include, for example, preventing people from making the dish, or from writing their own descriptions of how to make it". To expand on this, the individual or entity can protect their recipe to an extent, but cannot prevent others from making that particular dish or writing down their version of the recipe. As expression is protected, and not ideas, mere techniques, information on ingredients or methods or the 'idea' of an overall recipe cannot be protected.

Copyright leaves recipes quite exposed, but does offer some level of protection should someone try to use your recipe which has been published in a book or in another protectable form. However should they want to publish their own version or efforts, even writing down a specific recipe in their own words after following someone cooking it, they are free to do so.

Recipes and Trademarks

The names of dishes can be quite valuable, especially if they gain a high level of traction. A famous dish can be highly desirable to protect in name, and under the UK Trade Marks Act 1994 (and similarly under its American, Australian and Canadian counterparts) a sign, an indicator of a goods' origin, can be protected, which easily encompasses the names of dishes or recipes. A recent example of this is the fabled Cronut, a mixture between a croissant and a donut, which became seemingly huge overnight. Arguably the recipe for a Cronut can be very valuable, and many have shared their takes on the item, but what truly brings protectability to the doughy foodstuff is its name - something its creator trademarked promptly. As illustrated above the idea of a Cronut is not protectable as is, but the name does prevent others from selling the item under the recognizable moniker, which is very often more valuable than attempting to prevent the use of a recipe. 

This is not to say protecting a dish or a recipe can result in a positive outcome. Last year a Vietnamese restaurant in London faced some backlash after it asserted its trademark on the dish "Pho", albeit used in the restaurant's name rather than as a means to protect a specific recipe. Whether it is a food related name or a distinct recipe with an elaborate or distinct name, trademarks do serve as a great tool to protect recipes, yet are limited to only truly distinct cases, as one cannot simply just trademark a common recipe or dish.

Recipes and Patents

The more interesting choice of the three was an option this writer had never even considered; patenting a recipe. More often than not patents protect inventions, which encompasses a very wide array of things, but one would never think of a recipe as an 'invention' no matter how inventive the approach can be. Nevertheless, this is still quite possible, although any aspiring food patent seeker will be fighting an uphill battle at best.

Intricate methods of cooking often lead to mixed results

Under the UK Patents Act 1977 for an invention to be patentable it has to fulfill certain criteria: it has to be something new; involve an inventive step; and be capable of industrial application. On the face of things a recipe could be exactly that, and fall under each category; however one can imagine this would pertain more to an industrial recipe, rather than a single kitchen in a single restaurant. A good example of a food related patent is Cadbury's patent for chocolate that doesn't melt (and for the sake of balance Nestle's equivalent is here). The recipe clearly calls for a specific method of creation, a way to make the recipe, rather than the recipe itself. Chocolate is way too common for it to be afforded patent protection, but a novel way to produce chocolate could easily be patented if it falls under all of the requirements. For a great in depth look at the matter in the US, please do read Gene Quinn's article, which covers recipe patents under US law very comprehensively.

Patents are a tougher sell as a method for protecting recipes, but are still quite viable and an option should you dish be created in a very unconventional, new way, and possibly include a more industrial approach rather than one which relates to looks or flavor alone. It won't protect the recipe per say, but it will protect the method through which that recipe is produced.

Conclusion

In short, can you own a recipe? Yes and no. To own a recipe in its most truest sense, it seems nearly impossible under current intellectual property laws, and rightfully so, since no nation would want to deprive its citizens of the multifaceted world that is the culinary world. One can easily own an aspect or two to a recipe, for example its name or a specific structure if it entails a strict layering process for example, or even a printed recipe, but the limits the law imposes on those rights are very strict and nuanced. Being able to buy a lasagna outside of a certain restaurant in Italy is truly a blessing for us all, and we can take that availability for granted.

A message to all aspiring chefs and current culinary professionals: focus on the quality of your product rather than its protectability under intellectual property law.