Mere days out from last weekend’s federal election, and at a time when almost every leading news story is about US President Donald Trump, it was going to take something extraordinary to knock both items off the front pages in Australia.

The dispute between RecipeTin Eats founder Nagi Maehashi and baking influencer Brooke Bellamy, however, did just that (at least online).

Last week, Maehashi (who runs Australia’s leading food website, has millions of online followers, and two best-selling cookbooks) took to Instagram to accuse Bellamy (who runs three Brooki Bakehouse bakeries across Brisbane, also has millions of online followers, and is the author of Bake with Brooki) of plagiarising her recipes for caramel slice and baklava in her best-selling book.

“To me, the similarities are so specific and detailed that calling these a coincidence feels disingenuous,” Maehashi said.

“I’m speaking up because staying silent protects this kind of behaviour. Profiting from plagiarised recipes is unethical, even if not a copyright breach, and it’s a slap in the face to every author who puts in the hard work to create original content rather than cutting corners.

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“Even a single recipe taken without credit breaches trust and calls the integrity of the entire book into question. I put a huge amount of effort into my recipes, and I share them on my website for anyone to use for free. To see them plagiarised, in my view, and used in a book for profit without credit doesn’t just feel unfair. It feels like a blatant exploitation of my work.”

In response, Bellamy posted a statement on Instagram, saying: “Recipe development in today’s world is enveloped in inspiration from other cooks, cookbook authors, food bloggers and content creators. This willingness to share recipes and build on what has come before is what I love so much about baking and sharing recipes.”

“I stand by my love for baking, my recipes, and the joy this book has brought so many home bakers around the world eager to try recreating my recipes from inside their homes.”

Bake with Brooki, Bellamy argued, contains more than 100 recipes created over many years, and since opening her first bakery almost a decade ago, she has “been creating my recipes and selling them commercially since October 2016”.

“In March 2020, RecipeTin Eats published a recipe for caramel slice. It uses the same ingredients as my recipe, which I have been making and selling since four years prior,” Bellamy said.

She noted that she had offered to remove the recipes for both caramel slice and baklava from “future reprints to prevent further aggravation”. She further expressed her “great respect” for Maehashi as a fellow female entrepreneur.

Lawyers Weekly does not suggest that the accusations of plagiarism are true, only that they have been made.

Can recipes be plagiarised?

In conversation with Lawyers Weekly, Macpherson Kelley principal Mark Metzeling said that protection of recipes is difficult, especially with a published recipe, as it becomes part of the public domain.

“There is a fine line between plagiarism and inspiration,” he said.

In this dispute, he said, “the allegations of plagiarism are unlikely to take hold, as they pertain to an ingredient list and baking method”.

“A list of ingredients for a recipe can be likened to a data set in that those items can’t be swapped/changed to produce the same good. It’s, therefore, unlikely that a list of ingredients would be enforceable. Similarly, a written description of the method to make an item is likely to be considered unoriginal as it merely describes a known process,” he said.

This is not to say, however, that all recipes are unprotected, Metzeling pointed out.

“With the right conditions and some good thinking, an IP lawyer can provide useful protections to creators. One option could be to patent a recipe (as is often done with recipes of pharmaceutical products). Another would be to protect the confidentiality of a recipe through internal mechanisms (if not publishing the recipe in a book or on the web). Coca-Cola’s recipe, for example, is famously secret,” he said.

“The main protection, however, is enforcing how a recipe is expressed (the combination of the writing, photos, videos etc.). If the presentation of the recipe, beyond the ingredients and baking method of common baked goods, replicates a substantial part of the original layout and presentation, then lawyers for Maeshi might have a case.”

WRP Legal director Stephen Annicchiarico agreed, noting that plagiarism is “generally, from a legal perspective, addressed through copyright law [and] as copyright only protects the expression of an idea (and not an idea alone), the recipe itself may not be protected through copyright, but the written recipe could”.

Copyright considerations

XVII Degrees principal Blair Beven pointed out that copyright doesn’t protect an idea or facts, but it can protect how ideas are expressed.

“Copyright doesn’t protect a title, facts, ingredients, factual lists or measurements, but it can protect layouts, databases, literary works and opinion,” he said.

“The two recipes, which Maehashi posted side by side, have identical ingredients and measurements, and similar steps. While they are expressed in slightly different ways, they are objectively very similar. As examples, the RecipeTin Eats recipe for caramel slice uses language such as ‘lower’ the oven temperature, whereas Bake with Brooki says ‘reduce the oven temperature’.”

A recipe, Beven continued, is a formula of steps, setting out a list of ingredients and identifying the process or procedure to follow as a set of steps.

This means, he said, that “under copyright law, a recipe is a literary work much like computer code is a literary work for software. On this basis, under the Copyright Act 1968, recipes (as a literary work) can be protected”.

There is also a common myth, he added, that if a person alters a work by 10 per cent, they can get around copyright. This, he said, is incorrect.

“Under Australian law, copyright only extends to original works of authorship that meet a certain threshold of creative skill and effort. As recipes are essentially a list of steps – or otherwise a ‘method’ – this can present a problem of proof,” Beven said.

“This is also why small differences in words can make a big difference, especially with more ‘generic’ recipes.”

To this end, Annicchiarico said, a “multifaceted, fact-driven analysis is required to determine whether copyright is infringed”, including by assessing the originality of the recipe, degrees of similarity between two recipes, and the way a recipe was developed.

Lessons for practitioners

For IP lawyers, Annicchiarico said, this dispute highlights the importance of documenting how works (in this case, recipes) are developed over time.

“For example, if Nagi’s recipe is protected by copyright, and Brooke can demonstrate that she developed her recipe without reference to Nagi’s recipe, Brooke may not have infringed copyright in Nagi’s recipe. Brooke appears to have attempted to take such an approach by responding to Nagi’s allegations with evidence of her creations from 2016 [via an Instagram post] – before Nagi’s recipe was published,” he said.

When asked how lawyers can best advise clients in such matters, he said that it is “important to take a thorough and pragmatic approach, including by: (a) extracting as much background information from the client as possible regarding their creation and use of the specific works; (b) being forensic in the analysis of the information that the client provides; and (c) taking a holistic approach to the assessment of the client’s legal exposure by reference to all potential legal avenues (e.g. claims under the Australian Consumer Law often overlap with those in relation to intellectual property disputes).”

Moral rights

Ultimately, Beven mused, the debate between Maehashi and Bellamy is one of attribution.

“Maehashi alleges she wasn’t given credit for her recipes. One of the moral rights under the Copyright Act is that authors have the right to be attributed as an author. For some authors, attribution can be just as important as the fact that their work has been copied,” he said.

“It’s important to note that Maehashi has not alleged that Brooki has infringed her copyright in any recipe. She is alleging plagiarism, which is not a legal cause of action. In other words, you can’t sue someone for plagiarism.”

It is also worth noting, Beven went on, that independent creation is a complete defence to copyright infringement.

“In other words, if one person came up with the same recipe for making a dish as another person and expressed it in a very similar or identical manner, that person would not infringe any copyright if they could show that they came up with the recipe completely independently,” he said.

“If Brooki can show independent creation of her recipe, recipe development, and has expressed her ideas independently from Nagi, as well as show originality in the recipe, she should be able to defend Nagi’s claims.”

“However, going to court would seem like an overreaction by Nagi and would cost a lot of chocolate cakes.”