With the holidays already approaching, things might be get a little too hot in the kitchen for Food Network, which has been sued for copyright infringement by a woman claiming the network stole her idea and techniques for creating snow globe cupcakes, as demonstrated in her how-to video on SugarHero.com.
Last year, Elizabeth LaBau posted how-to-video on YouTube showing viewers how to use gelatin sheets and water balloons to transform the basic cupcake into a highly creative (and pretty cool looking) holiday treat. However, only a few weeks later, LaBau alleges that the Food Network uploaded a competing video on the network’s Facebook page, which she claims is essentially an unauthorized and uncredited reproduction of her original cupcake video.
I’ve often been asked whether or not a particular favorite or family recipe can be copyrighted or registered with the U.S. Copyright Office. The short answer is: probably not. Under U.S. copyright laws, copyright attaches once the original work is “fixed” by its author in some tangible form. So, if you’ve finally jotted down grandma’s best recipe on an index card or on an app on your phone or tablet, that will probably be enough to count as fixation. The bigger problem comes with originality. In general, recipes in and of themselves are considered to be mere listings of ingredients, as opposed to actual creative expression, and for this reason are not capable of being protected by copyright. Basically, our Founding Fathers (and by extension Congress, which came up with the most current Copyright Act) did not want to give one person exclusive rights to their double chocolate chip cookie recipe. Just imagine how limited our culinary lives would be if we had to pay a royalty every time we felt like making that to-die-for shrimp ceviche recipe we heard about.
On the other hand, copyright law does protect original expressions of a recipe such as in a description, explanation, or illustration. So even though the recipe itself may not be capable of being protected by copyright, an original explanation of the recipe or story behind it might be. This is why cookbooks often receive copyright protection, even though the recipes themselves contained inside such books will not.
It will be interesting to see if this case actually goes to trial and what arguments will be made by each party. Ironically, Food Network’s own original programming (which is likely protected by copyright) might be raised by LaBau as proof that her hit how-to-video and all of its many shot selections, camera angles, colors, lighting, and other expressive elements should be protectable.
Ben Bhandhusavee is the Managing Attorney for BhandLaw, a Phoenix business and technology law firm that works with start-up companies, complex business and technology transactions, and intellectual property matters. Ben can be reached at (602) 678-2970 or by e-mail at email@example.com