When Nagi’s post crossed my desk yesterday, it certainly piqued my interest. But it’s been amazing to see how quickly it’s captured the zeitgeist.
So, here’s my tuppence worth.
In summary, I think there is some copyright in this matter. I also think such striking similarity makes independent creation unlikely. But, whilst our household are fans of Nagi, I also have enough respect for Penguin as a company to not doubt that they have a basis for the position they’ve taken. Hence, I make no judgement about what’s really going on, and we may never know. But at least it’s putting IP in the news and that’s a good thing!
1 Copyright can subsist in a recipe as a literary work. Copyright cannot subsist in the “idea” of a caramel slice as a baked good, but it can subsist in the particular recipe that a person uses to make caramel slice. Copyright protects the words that an author has used to convey an idea – eg the ingredients list and methodology.
2 However, recipes evolve. They are passed from one cook to another. (They are sometimes not even written down, but won’t be protected by copyright unless and until reduced to a “material form” – written down, recorded on video). A recipe is rarely wholly new and original per se. More often, the requisite originality is found in certain characteristics that the baker brings to the particular baked good.
3 In general terms, copyright is infringed by reproducing a substantial part, with “substantial part” assessed qualitatively. There is no basis in law for the rule of thumb that infringement can be avoided by changing 10%. (Copyright also recognises “moral rights”, including the complementary rights to be attributed as author and to prevent others falsely attributed themselves as author.)
4 The relevant questions are (i) whether the particular recipe is of sufficient originality for copyright to subsist and (ii) if so, what extent of homology is required to reproduce a substantial part. These questions are obviously interrelated – to establish infringement of a copyright work of minimal originality the author will likely need to show a higher degree of homology than where the work is significantly original.
5 Caramel slice is not a new baked good. Caramel slice recipes also tend to have a number of essential elements – biscuit base on the bottom, caramel filling in the middle and chocolate topping. A baked good with these three elements has likely passed into the public domain.
6 Where copyright enters the kitchen is when there is specific and extensive homology in the ingredients and the methodology of using them. And this is where things get interesting.
7 Google, do your thing!
8 Here are the results (in order).
An analysis of these recipes shows two pertinent things.
First, all but one uses golden syrup to sweeten the caramel.
RecipeTin Eats is the outlier – it uses brown sugar as caramel sweetener, and I have seen that baker claim that this is an original aspect of her recipe.
Second, save in one instance, there is no noticeable homology across ingredients nor methodology across them. The one exception is that the ingredients list in RecipeTin Eats and Donna Hay are identical, save that Donna Hay uses the more common brown sugar as caramel sweetener, whereas RecipeTin Eats uses brown sugar.
9 The analysis shows that the most popular (per Google) caramel slice recipes have negligible homology in ingredients or methodology. Despite the fact that each has the essential elements noted above, each baker brings his/her own original recipe to create a different take on an “ol’ standard”. This provides strong grounds for arguing that copyright subsists in each recipe as an original work (at least as across those works, noting that we have not researched whether any of them is in turn has excessive homology with recipes we have not seen. It also raises a further issue of copyright ownership and potential infringement vis-a-vis the homology of the ingredients list for RecipeTin Eats and Donna Hay, but that is external to the current controversy.).
10 The above negligible homology contrasts with the striking homology between the ingredients lists and (part) methodology for the two recipes in issue shown below. For reasons noted immediately above, copyright likely subsists in this content as original expressions of literary works. The striking homology indicates that independent creation is unlikely, but we cannot assess, and make no judgment on, which is the original work and which may not be.
11 Leaving caramel slice, we see a further controversy today concerning vanilla cake. Cakes tend to have a larger quantity, and more diverse range, of ingredients and methodology, and thus provide greater scope for a baker to bring his/her original touches to the recipe. This necessarily reduces the likelihood of homology and make cakes better illustrators of the copyright principles raised by the questions posed in paragraph 4 above.
12 The side-by side ingredients in the vanilla cake controversy are shown below, and the respective methodologies ares available at https://sallysbakingaddiction.com/vanilla-cake/ and https://www.youtube.com/watch?v=oOJ4OX1yVAo. We hasten to add that we didn’t ask Google for the top results in vanilla cake recipes, so we can’t comment whether there are others with similar levels of homology. However assuming that all vanilla cake recipes do not require a tablespoon “(yes, a [T][t]ablespoon!)” of vanilla extract, we venture to suggest that copyright likely subsists in a one of these ingredients lists as an original literary work, and likewise the methodology when reduced to the written form as shown below.
13 Closing comment – I have seen some commentary as to whether a baked good of particular complexity (eg an intricate birthday/wedding cake etc) may also be protectable in three-dimensional form as a work of artistic craftsmanship, such that the author of the recipe may be able to prevent others from baking it (not just from reproducing the recipe in 2D as a literary work). I agree that this could be possible in certain circumstances, but not where the recipe is made available by the baker without restriction. Publishing the recipe in a book intended for general use likely results in the author granting readers an implied licence to bake the good and would prevent the author claiming that the reader has infringed any copyright in the finished 3D work of artistic craftsmanship.
Happy baking!