Can a recipe have copyright protection?

In the age of recipe blogs and food influencers, the recipes seem endless and at times awkwardly similar.

That’s the case in Australia, where there is a clash over a caramel slice and a baklava recipe. Sydney-based cookbook author Nagi Maehashi, from the popular website RecipeTin Eats, accused Brisbane-based Brooke Bellamy from cookie shop Brooki Bakehouse of plagiarising two of her recipes in Bellamy’s latest cookbook. Bellamy has rejected those accusations, and lawyers are involved.

The stoush highlights the grey world of ownership when it comes to recipes. Often recipe authors take inspiration from others or build upon age-old methods, begging the question is any recipe truly original and worthy of copyright protection?

Here’s a breakdown of how recipe copyright works:

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Yes, but enforcing that might be difficult (more on that later). To reach any bar of copyright protection for a recipe or anything else, it must have originality created by skill, labour or judgment, says Andrew Brown, an intellectual property specialist.

“...if you copy the work, the recipe from an earlier one, you don’t have copyright. If you’ve made an original as to some small ingredient [change], well then, you would get copyright, but a pretty low level of copyright.”

So the more original a recipe is regarding ingredients and methods, the higher the level of copyright protection because it becomes easier to defend as an original creation.

Typical recipes for biscuits or cakes would be hard to defend as original because they tend to stick to a similar formula, says Brown.

“But if you’ve got a Heston Blumenthal [UK celebrity chef] or someone like that who’s invented a new recipe and it’s entirely avant-garde and requires all sorts of techniques that the ordinary cook couldn’t do he would have copyright in that recipe and a higher degree of originality and therefore a higher degree of protection from copying.”

Maehashi claimed her caramel slice recipe was unique because it used caramel as the base, setting it apart from typical recipes that often use golden syrup.

Kathy Paterson, co-editor of the RNZ Cookbook and founder of the New Zealand Food Communicators Scholarship, advises her students to make at least three changes to a recipe and test it out before they claim it as their own.

“You know, that can be something like, for example, it might be one teaspoon of ground cinnamon. So you could change it to half, or you could do one teaspoon of ground mixed spice.”

“You definitely, definitely have to change the method, the cooking method and how you make the recipe so that has to be in your own words.”

Whenever you take inspiration from another recipe or replicate it completely on a blog or in a cookbook, permission should be sought from the original author with proper attribution, says Paterson.

For Louise Russell, publisher at Bateman Books, the writing style of a cookbook author can set them apart from others.

“There's often a little sort of paragraph where the author is introducing the recipe. So certainly that part and then just any kind of anecdotal or a sort of personal [flair]...”

But ultimately in the recipe world, “there is a lot of confusion” over what’s original and what isn’t and who owns what, says Russell.

In a typical cookbook contract with Bateman Books, an author must attest that the work is all their own. If Russell or her team have any doubts, then the manuscript is sent through plagiarism detection software.

“We are definitely looking for people who are talented, good writers who have a really interesting concept for a cookbook, strong content, good recipes that are accessible for the average domestic cook, and personality.

“It has to be more than a collection of recipes.”

The answer is with great difficulty, says Brown, the IP expert. He has never had to sue anyone over a recipe and has heard of very few instances of that happening because it is so difficult to prove originality.

“When it comes to the actual nitty-gritty of proving that you’re infringing copyright you’ve got to show there’s been copying by the alleged copyist.”

If you can prove major similarities in a recipe, then the alleged copyist might still be able to prove theirs is an original creation despite the similarities.

“But if I can show that, you know, my grandmother had done this recipe and handed it down, well then I'm free as a bird. I can use that recipe without any inhibitions.”