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Wednesday, 7 June 2017

SugarHero and the Snow Globe Cupcakes - Copyright and Food Videos

A Californian Court may soon hear on the copyright infringement of a "Facebook-style" cooking video featuring a cupcake recipe. Last week, internet chef Elizabeth LaBau, aka ‘SugarHero’, filed a copyright infringement claim against Television Food Network before the Central District Court of California. The crux of the dispute: LaBau's cooking video showcasing her flagship recipe Snow Globe Cupcakes”  (the complaint can be found here in full). 

Snow Globe Cupcakes by SugarHero
(shot of SugarHero's 'how to' video
: www.sugarhero.com) 
LaBau’s complaint is clear: it does not seek copyright protection for the recipe embodied in the film, but for the film itself (here). This avenue may be one of the last ones left open to passionate foodies who dedicate their life to creating new recipes, as the US Copyright Office and US Courts have refused to extend copyright protection to recipes (here) or even recipe books (see, Publications International v Meredith Corporation 88 F 3d 473, at 480 (7th Circuit 1996) per Kanne J., contra. see, Belford v Scribner 144 US 488). Consequently, this new crave for 'how-to' cooking videos trending on social media may be more than just a marketing tool, it could also be a strategic legal move (depending on forthcoming the Court’s decision).

The complaint filed on LaBau’s behalf depicts a dispute by the likes of David and Goliath. The plaintiff is described as having dedicated “years of hard work and late nights” to her project ‘SugarHero’, “competing with numerous corporate food websites, often backed by large companies with deep pockets” in a “oversaturated food market place”. To break through, LaBau worked endlessly to develop “eye-catching” recipes paired with an effective social media strategy (para 16). This is where the “Facebook-style video” at the crux of this dispute comes in. 

And one for the road...
(photo by Serenitbee)
In 2014, LaBau developed her “Snow Globe Cupcake” recipe which was first published on the SugarHero website (www.SugarHero.com) (para 21). Though instantly popular, the recipe only went viral when LaBau published the same recipe on Facebook using the regular post format (photo and text) and linking it to the original recipe on her website (para 22). In 2016, LaBau produced a short cooking video of the recipe in “Facebook-style” to increase traffic to her website further (para 24). The complaint describes that this process took two months of production from the shooting to the editing, all of which LaBau performed herself (para 25). Shortly after posting her clip on the internet, SugarHero came across a similar video produced by Food Network, which had been published on December 22, 2016. LaBau contacted the Network to request “credit and attribution for her work, providing a link to her video for reference” (para 30). 

The complaint claimed that the “Food Network video” copied Labau’s work “shot-for-short” (para 35) by reproducing protected elements of her clip such as “the choice of shots, camera angles, colors, lighting, textual descriptors, and other artistic and expressive elements of [LaBau]’s work” (para 28). SugarHero’s complaint argued Food Network of free-riding on her “hard work”, “the time commitment of recipe development and the cost of ingredients, coupled with the time cost of photographing and videoing the cupcakes” which all in all amounted to a significant investment on her part (para 35).

SugarHero's shot (left), Food network's shot (right)
Source: BBC
The complaint covers the expected elements of copyright infringement for a cinematographic work, and as such does not put forward anything out of the ordinary. However, the decision may set an interesting precedent for the food industry - should the case reach this stage. If the Californian court sides with LaBau, the decision may re-open the doors of copyright protection in cases of highly-visual or unique recipes recorded in ‘how-to’ videos by their authors. Would that be a welcome development? At any rate, it is a timely conversation to hold as a case on sensory copyright (in the taste of cheese) is making its way to the CJEU, unearthing with it the legitimacy of intellectual property protection for culinary works (here). 

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