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Speaker 1 (00:02):
This is Bloomberg Law with June Grossel from Bloomberg Radio.
Speaker 2 (00:15):
Today, I'm going to be sharing with you the best
ever vanilla cake recipe. It's nice and light and fluffy,
It's golden on the outside. It may be the best
vanilla cake recipe, but another baker says it's her recipe.
Australian influencer and baking guru Brooke Bellamy has millions of
(00:36):
followers on TikTok and her first cookbook was a best seller,
but her recipes for caramel slice and baklava went from
sweet to sour after another celebrity chef, Naji Mahashi, accused
Bellamy of copying those recipes from her, and then yet
another celebrity chef accused her of copying the vanilla cake recipe.
(00:59):
Bellamy deny the accusations, saying she created the recipes over
many years, but the fallout, the media coverage and the
online trolling have been so intense that Bellamy went into
hiding and Mahasha even tried to turn down the vitriol
in an Instagram post.
Speaker 3 (01:18):
Please stop the trolling now. I know I've made serious allegations,
but this does not justify the personal attacks that I've
seen online against brook Bellamy.
Speaker 2 (01:33):
My guest is intellectual property litigator Terrence Ross, a partner
Katin Yuchen Rosenman. Terry, let's start with the legal basics.
Can you copyright a recipe?
Speaker 1 (01:44):
So June? In theory, it is possible to copyright cookbook
or even a few individual recipes. It's very hard to do.
It's considered one of the trickiest theories of the law.
And a little bit of protection you do get if
you're capable of giving a copyright is called thin protection
by copyright lawyers, which essentially means that you've got to
put the book on a xerox machine and copy it
(02:06):
word for word for there to be infringement. The problem
here is that copyright doesn't allow protection of ideas, and
a recipe how to bake a cake is simply an idea,
and embedded in that idea are some scientific principles that
are just required, and you're not allowed to copyright scientific
principles either. And it's got to be these certain amount
of the ingredients to get the right flavor, it's got
(02:27):
to be a certain temperature being baked in the oven,
and those aren't copyrightable, and so it is a very
challenging thing to assert copyright in a recipe or cookbook,
and about the only parts that can be copyrighted or
sort of the expression of the recipe, so style the
wording describing what this cake is going to turn out
to be, what this cookie tastes like, as opposed to
(02:48):
the actual recipe.
Speaker 2 (02:50):
I think, buttermilk was used in one of these recipes
in sort of a different way. So if you have
a really unique ingredient used in one of the recipes
that no one's seen used in this way before, what
about that?
Speaker 1 (03:04):
So copyright is different from patents in that what copyright
protects is the expression fixed in a tangible medium, words
written down. It doesn't protect how you do something, and
frankly here that wouldn't be protectable under patent either the
addition of a different ingredient in this case buttermilk. Again,
(03:25):
that really does not help. Although it pretty strongly suggests
that there was plagiarism, and I say plagiarism as opposed
to copyright infront of it, that there may have been
some plagiarism of the recipe that Miss Bellamy was accused
of of copy.
Speaker 2 (03:41):
So tell us about this recipe dispute which has really
gotten a lot of play, not only in Australia but internationally, so.
Speaker 1 (03:48):
It's an interesting copyright dispute that came up in Australia.
There's a very famous TikTok baking influencer in Australia name
of brook Bellamy and she has over three million followers
and is famous for posting TikTok videos of how you
bake you know, tasty treats. She actually runs a chain
(04:10):
of bakeries in Australia and has achieved quite a bit
of notoriety down Under, but also expanding outside of Australia.
And so last October she came out with her first
cookbook and it was called Bake with Brookie, and that's
important names after her big goods stores which are called
Brookies bake Houses. But this book, because of her fame
(04:33):
as an influencer in the baking circles, was an instant success.
It sold over one hundred thousand copies in less than
six months, gross sales around four million dollars and was
the second best selling book for the Australian Christmas season
last year. So very very successful and just a couple
of days before the Australian Book Industry Awards, which is
(04:55):
a big deal in publishing circles in Australia, and her
book Baked with Brooks He was in competition for Best
Cookbook with a couple other famous long time baking experts,
and one of them, Naji Mahashi, posted online that she
thought two of the recipes in Bake with Brookie were
plagiarized from her own cookbook and laid out the arguments
(05:16):
as to why, and this caused quite a stir. And
then to make things worse, Sally McKenny, famous American baking
cook with a number of cookbooks of her own, out
sort of piled on and said that she thought that
the vanilla cake recipe in Bake with Brookie had been
taken from one of her books. And when you compare
the recipes side by side, there is almost an identity
(05:40):
of ingredients and amounts and cooking temperatures. But in the
case of Sally mckenny's vanilla cake, she does something sort
of unusual. She uses buttermilk and Brooke Bellamy in Bake
with Brookie. Her recipe for vanilla cake also used buttermilk,
which struck Sally m Kenny's odd so she brought this
out and it was sort of that point the oven
(06:00):
mits were off. Folks were chiming in and trolling Brooke
Bellamy onlines to the point where she had to shut
down her ig account. The press was camped outside her
house so she couldn't leave the house. She did not
attend the awards ceremony for the book Industry. Now. The
only time she's left her house since this happened last
week of April was to go visit her lawyers, and
(06:21):
she was followed the entire way.
Speaker 2 (06:23):
Did Nagi Mahashi file a lawsuit against her, so there is.
Speaker 1 (06:27):
Not actually a copyright infringement lawsuit filed yet. Naji Mahashi
has taken it to her lawyers, who have reached out
to the lawyers for the publishing house to publish Bake
with Brookie the Penguin Random House Group, and the two
sides have exchanged letters, apparently making accusations and denying accusations
and Brooke Bellamy. One of the few postings she's done
(06:49):
is a complete denial and an explanation that much of
the recipe business, both in baked goods and dinners lunches
and things. All that is derivative to start with, and
you build on the same foundation, and therefore she does
not believe that she did anything this reputable, dishonest alone unlawful.
Speaker 2 (07:07):
But if the recipe can't be copyrighted, what are the
allegations or causes of action you could even bring.
Speaker 1 (07:15):
So it's not that recipes can't be copyrighted. In theory,
they can be copyrighted. It's just very hard to do that.
And to the extent that you have copyright protection, it
almost has to be an exact duplicate of the recipe
to constitute copyright infringement. A lot of what's going on
here is moral posturing. There is this background noise that
(07:36):
is being created that somehow Brook Bellamy is not being honest,
is stealing other people's works. Won't say being a fraud,
but you know that's the implication that people want to draw.
In a very competitive industry in which people are fighting
for book sales and attention, June, this is not something
that's new. The problem is that the law is so
weak in the area it almost invites plagiarism, if not
(07:57):
copyright infringement. I mean, you take the very first US
American cookbook, very famous book called American Cookery by Amelia Simmons,
who was apparently a domestic servant in a household in
Connecticut in the Early Republic, and she published this herself.
She paid for it in seventeen ninety six. And it
was unique because it used exclusively American ingredients, it used
(08:20):
American cooking language, and put forward a lot of very
famous but duil that time, sub rosa American recipes. So
this was the first cookbook to have pumpkin pie in it.
It was the first cookbook to suggest cranberried sauce with turkey.
It was the first cookbook to use the word cookie.
And it sold more copies than any other book in
(08:41):
the Early Republic other than the Bible. The problem was,
as miss Simmons said in her second edition, so she
wasn't making any money off of it. People were freely
copying it and distributing it very widely. The main reason
she came out with secondition was to correct errors that
the publisher had made that were pretty big errors regarding
types of ingredients to be used, in the amount, some
temperatures to be cooked. Pad But I mean historians have
(09:02):
called this book the second tech question of independence, because
he said to Americans, we no longer have to follow
British cooking traditions, baking traditions. We have everything we need
here to be Americans. Even in our domestic household, was
very influential with women. And yet there was massive plagiarism
for fifty years, to the extent where people were starting
to substitute out her name, so she wasn't even getting credit.
He flashed forward in time and he come to nineteen
(09:23):
eighty four, and you have this famous case between Richard
Only and Richard Nelson. Richard Only had written a number
of French recipe books in English, very influential in bringing
French cooking to America, and Richard Nelson came out with
a new book on American French recipes, I think it
was called and Richard Only said, wait, Assican, I count
thirty nine recipes that you took out of my book.
And he actually filed a lawsuit, and the defendant agreed
(09:46):
to the entry of an order stipulating that there had
been infringement, so it wasn't aggressively litigate. He just wanted
to get rid of the lawsuit and entered into a
stipulated order, but there's a case where copyright lawsuit was
actually foiled. It Flash forward in time to twenty twenty
one in the UK and the publishing house Bloomsbury withdrew
what was a really enthusiastically expect that new book on
(10:09):
Singaporean recipes by Elizabeth Hey and another Singaporean chef, Sharon.
We had a last year that most of the recipes
were taken from an older book by her, and the
publishing house withdrew the work. They'd already printed some seventeen
thousand copies and we're ready to go to market, and
just the mere suggestion that there had been copyright infringement
(10:29):
caused them to withdraw the work and not publish it.
In effect, so we have this long history of disputes
of recipes and cookbooks, despite this whole legalarity being sort
of a gray area as to whether or not there
is protection, there's not protection. What's protected? How much do
you have to take to get protection? How much do
you need to take in order to be able to
(10:50):
bring on infringement lawsuits? But they keep coming up, you know,
every decade or so, and now this dispute would refell me.
It's just another example of that down under this time.
But the sub and the law of copyright is the
same under Australian US UK law when it comes to
cookbooks and recipes, and so it's just interesting to see
this flare up from time to time across the different continents.
Speaker 2 (11:11):
The one I remember as the one involving Jessica Seinfeld
was sued over a children's cookbook.
Speaker 1 (11:18):
Absolutely another great example there. The lawsuit was actually filed
the way the expression was written up in the cookbook.
There was a little bit more meat for the copyright
and infringement lawsuit. But remember who won that case. The
defendant actually got a judgment in her favor saying that
this was not protect at work. But again another example
(11:40):
of an attempt to use copyright law to achieve some
sort of intellectual protection for recipes and cookbooks. But I
think this will just continue on and on because there
is no certainty in this area.
Speaker 2 (11:52):
So if Naji Mahashi came to you and said, take
my case I want to sue, would you take the case?
What would her chances be?
Speaker 1 (12:00):
You know, I think I would say that your chances
of getting ultimately a verdict for damages in a copyright
infringement lawsuit would not be good. However, Australia does have
one feature in it's copyright law that the United States
law does not have, is this notion of moral rights.
When you use somebody else's work in this way, you
(12:21):
have to give them credit or you've committed a separate,
unlawful action, which is at least remediable by an injunction
requiring that credit be given where credit is due. And
so there is that options, But my advice would be
to go about it exactly the way Naja Mahashi's listeners
are feeling about it. You bring up the issue with
the publishing house and you say, look, we think there's
(12:41):
a problem here, and see what they say, and then
if they deny it, you have a base to take
that to the court of public opinion. Is being done
here and see what happened, because after all, a lot
of what's going on here has to do with competition
within the cookbook field, and there's this general perception that
you should not be adriizing other people's recipes. But if
(13:02):
you choose to do so, you ask permission and give credit.
And I cannot tell you, June how many potential copyright cases.
I've been able to avoid on behalf of my clients
simply by telling them, look, say you're sorry, and give
full credit, because at the end of the day, that's
often what it's all about. They just want to be
recognized as this was their creation, this was their work,
(13:26):
and especially in this field of cookbooks recipes, permissions are
often granted to allow someone to use another person's recipe.
You just have to ask and then give credit. And
I think that's the big lesson to be learned here
with respect to copyright law in the context of cookbooks
and recipes, because.
Speaker 2 (13:42):
It seems like the damage has already been done here.
I mean, she's hiding in her house.
Speaker 1 (13:47):
I think this is probably an enormous financial hit. Certainly
it's bound to affect sales of her book, Bake with Brookie.
She's taken down her social media and when you have
a large portion of your persona wrapped up as an
online influencer in the social media forms, to have that
(14:08):
simply disappear, it's not just personally hurtful to you, it's
financially damaging. Because they are with that many followers, they
are able to monetize that amount of followers, and all
that money is being lost as well, So the damage
has probably been done regardless of whether you need a
lawsuit to be filed, and we'll just have to wait
and see whether mis Mahashi does follow through with a lawsuit, and.
Speaker 2 (14:32):
The repercussions for Bellamy seem to be continuing. Thanks so much, Terry.
That's Terrence Ross of Catain Mutchen Rosenman, and that's it
for this edition of The Bloomberg Law Show. Remember you
can always get the latest legal news on our Bloomberg
Law Podcast. You can find them on Apple Podcasts, Spotify,
and at www dot Bloomberg dot com, slash podcast slash Law,
(14:55):
and remember to tune into The Bloomberg Law Show every
weeknight at ten pm Walston Time. I'm June Grosso and
you're listening to Bloomberg.
Speaker 1 (15:04):
M mhm