July 25, 2017
Can one successfully sue over a cupcake video? The answer might be a definitive, Yes. The Food Network is being sued [Case 2:17-cv-04077, June 1, 2017] by food blogger Elizabeth LaBau, who runs the website SugarHero. During the 2014 holiday season, Elizabeth LaBau posted a recipe instructing people how to use gelatin sheets and small water ballons to make edible “snow globes” –which created a holiday novelty dessert. The (how-to video) dessert recipe went viral becoming her signature dish. She alleges, that the Food Network stole her idea, because the Food Network “willfully and intentionally sought to appropriate” LaBau’s work for their own profit without bearing the cost. This lawsuit claims the Food Network’s Facebook video is a shot-for-shot theft of LaBau’s, because the camera angles are the same, along with the colors, lighting, text, and other elements which are identical.
According to The Hollywood Reporter, LaBau filed a copyright-infrigement lawsuit in the Central District of California, seeking damages, related to missed web traffic which affects her blog’s revenue stream. Further, the lawsuit states, that the Food Network profited without bearing the cost related to the time commitment of recipe development and the cost of ingredients, coupled with the cost of photographing and videoing the cupcakes; this was a substantial investment for the Plaintiff because she runs a website as her primary source of income based upon her own work product.
Are recipes protected by Copyright law? Well it depends, because Copyright law does not protect recipes that are mere listings of ingredients —but it does protect original works of authorship, and the U.S. Copyright Office states that this may include the “expression” of a recipe such as a description, explanation, or illustration. Here, the issue with LaBau’s law suit is whether a how-to video warrants protection while the underlying recipe does not. The lawsuit focuses specifically on the video that helped popularize the snow globe cupcakes. Labau calls her video a “proprietary work” because the alleged infringement by the Food Network’s video was more than taking her ideas, it allegedly hurt her brand [SugarHero] by depriving her of income.
SugarHero.com has won several awards and accolades in recent years, being named “Best Baking Blog” by Better Homes and Gardens in 2015. LaBau says the first viral post “more than tripled” her income for a month with millions of views of the post video and nearly 250,000 likes on Facebook —BUT the Food Network’s post cost the SugarHero.com blog page views, and therefore income. The lawsuit points out that competing with numerous corporate food websites, often backed by large companies with deep pockets, is very difficult as an individual entrepreneur and requires endless work. Reportedly, LaBau asked the Food Network to remove the video, or at least provide attribution (credit) to her, but the company refused. This lawsuit seeks as much as $150,000 in damages per copyright infringement. To date, the Food Network has not issued any sort of comment.
Copyright law is meant to protect authors and creator’s original works of expression. This copyright protection extends to substantial literary expression—a description, explanation, or illustration that accompanies a recipe, or combination of recipes, as in a cookbook. A snow globe cupcake is clearly an original work of expression. Even more so is the how-to video created depicting this Holiday dessert confection. LaBau produced this how-to video recipe by her own intellectual effort because a snow globe cupcake had never been created in such descriptive video fashion. It seems likely that her original creation was copied by the Food Network, and therefore infringed.
Author: David Mears, Intern
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