A recipe for disaster – Is caramel a copyright work?

Copyright is a moreish staple of New Zealand’s intellectual property framework. The ingredients are simple and have been passed down through generations.

‍

Ingredients: Author, originality, expression

Serves: The monopolisation of original expression and the incentivisation of speech

Cooking time: 50 years plus the life of the author, in most cases

‍

In the online era, a modern recipe can easily be mistaken for a memoir. Despite the rise of short-form cooking content, online recipes are commonly prefaced with the author’s life story, a summary of their childhood struggles, and a discussion of the recipe’s genesis.

Recipes’ foray into the realm of literature has never been more relevant than right now, with popular Sydney-based baker and cookbook author Nagi Maehashi, the founder of RecipeTin Eats, embroiled in a copyright dispute with social media baking personality Brooke Bellamy.

The dispute

In 2018 and 2020, Maehashi published recipes for baklava and caramel slice on her website. In 2024, Penguin Random House Australia published "Bake with Brooki", a collection of recipes from baking influencer Brooke Bellamy, which also contained recipes for caramel slice and baklava. One would expect similarities between the recipes – the use of filo pastry for the baklava, and a biscuit base for the caramel slice, for example. But the extent of the similarities concerned Maehashi, who then published these comparisons on RecipeTin Eats:

Maehashi has alleged copyright infringement, claiming that “the similarities between the recipes in question are far too specific and detailed to be dismissed as coincidence”. To the average baker, the recipes appear objectively similar, using identical quantities of ingredients and near-identical instructions. But wouldn’t recipes for the same baking always be objectively similar? Can copyright even subsist in a recipe in the first place?

Can copyright subsist in a recipe?

In simple terms, copyright protects how something is expressed including “literary works”, which could include a recipe. Designed to allow an author to monopolise original expression, copyright cannot protect a mere idea, scheme, or method – it is the expression of that idea, scheme, or method that is capable of protection from a copyright perspective. Under the Copyright Act 1994, for copyright to subsist in a literary work, the work must be “original”. Generally, in New Zealand a work will be deemed “original” if sufficient time, skill, labour or judgement has been expended in creating it. The New Zealand Court of Appeal has stated that the “threshold test for originality is not high”. That is, it does not take much for a work to be “original” and, therefore, for copyright to subsist in that work.

But what about works which are “inspired” by existing works (or, in this case, recipes)? To be protected by copyright, the recipe must be original in the sense that it originates from the author and is not itself copied. Whether or not the author has merely been inspired by an existing recipe or has copied it will be a question of fact – and will again turn on whether the work is the product of the author exercising time, skill, labour or judgement.

Classic recipes could be viewed in a similar way to the lyrics of folk songs – passing from generation to generation, often unwritten and of unknown authorship. If the composer is unknown (or has been dead for more than 50 years) then the folk song is likely to be in the public domain, and anyone can use, record or adapt the song without needing permission or to pay royalties. For example, “The House of the Rising Sun”, made famous by The Animals, is in fact an old folk standard of unknown origin, deriving from oral tradition in Appalachian mining towns. In a similar vein, Nirvana famously covered “In the Pines” (re-titled “Where Did You Sleep Last Night?”), originally made famous by Lead Belly, which is of unknown authorship and is thought to date back to the 1870s. But using an original arrangement of the folk song without permission will be an infringement, even if the underlying song is in the public domain.

Back to the caramel slice

So, are the RecipeTin Eats recipes “original”? Maehashi thinks so, arguing that her caramel slice recipe is unique in that it uses caramel rather than a more traditional golden syrup base. But is this enough to imbue the recipe with any originality? And is it tenable for Maehashi to claim copyright over a recipe for baklava – a dish thought to have originated in the 8th century BC? Bear in mind that “originality” in copyright is not the same as “novelty” in the context of patent law. Originality simply means that the work in question has not been copied, and that more-than-minimal effort has been exerted in its creation. It seems safe to say that Maehashi’s recipes could meet this test, even if the originality of the recipes themselves may be low. Maehashi emphasises that she “put[s] a huge amount of time and effort into testing recipes” and notes that she is sometimes “obsessive” about finding the perfect balance for her recipes.

For her part, Bellamy has flatly denied plagiarising any recipes, arguing that her caramel slice recipe in fact predates Maehashi’s publication by four years. She says further that “recipe development in today’s world is enveloped in inspiration from other cooks, cookbook authors, food bloggers and content creators” and that (perhaps like folk songs) food is all about “build[ing] on what has come before”. Not according to Maehashi, who claims that there has been copying which “undermines the integrity of [Bellamy’s] entire book” and represents “a slap in the face to every author who puts in the hard work to create original content”. Maehashi has also said that, while she sometimes sources recipes from other authors, she always tests them “extensively” and rewrites them in her own words.

Which way will the copyright cookie crumble?

This dispute, while not before the courts (not yet, at least), reminds us that for copyright to be infringed there has to be copyright to infringe in the first place. Referring to the side-by-side comparisons on Maehashi’s website, the objective similarity to the recipes in dispute is apparent. However, the key question is perhaps not whether the recipes were copied, but if the recipes have sufficient originality for copyright to subsist in them in the first place. This brings us back to the main goal of copyright – to allow an author to monopolise their original expression of an idea, even if not particularly “original” in the common meaning of the word.

We will be watching with interest to see how this dispute unfolds. If you have any questions about copyright licensing or infringement in New Zealand, please contact us.

‍