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Recipe Wars Down Under · Bloomberg Law

• 0:02
  Speaker 1: This is Bloomberg Law with June Grossel from Bloomberg Radio.
• 0:15
  Speaker 2: Today, I'm going to be sharing with you the best
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  Speaker 2: ever vanilla cake recipe. It's nice and light and fluffy,
• 0:22
  Speaker 2: It's golden on the outside. It may be the best
• 0:25
  Speaker 2: vanilla cake recipe, but another baker says it's her recipe.
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  Speaker 2: Australian influencer and baking guru Brooke Bellamy has millions of
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  Speaker 2: followers on TikTok and her first cookbook was a best seller,
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  Speaker 2: but her recipes for caramel slice and baklava went from
• 0:44
  Speaker 2: sweet to sour after another celebrity chef, Naji Mahashi, accused
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  Speaker 2: Bellamy of copying those recipes from her, and then yet
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  Speaker 2: another celebrity chef accused her of copying the vanilla cake recipe.
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  Speaker 2: Bellamy deny the accusations, saying she created the recipes over
• 1:03
  Speaker 2: many years, but the fallout, the media coverage and the
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  Speaker 2: online trolling have been so intense that Bellamy went into
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  Speaker 2: hiding and Mahasha even tried to turn down the vitriol
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  Speaker 2: in an Instagram post.
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  Speaker 3: Please stop the trolling now. I know I've made serious allegations,
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  Speaker 3: but this does not justify the personal attacks that I've
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  Speaker 3: seen online against brook Bellamy.
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  Speaker 2: My guest is intellectual property litigator Terrence Ross, a partner
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  Speaker 2: Katin Yuchen Rosenman. Terry, let's start with the legal basics.
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  Speaker 2: Can you copyright a recipe?
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  Speaker 1: So June? In theory, it is possible to copyright cookbook
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  Speaker 1: or even a few individual recipes. It's very hard to do.
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  Speaker 1: It's considered one of the trickiest theories of the law.
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  Speaker 1: And a little bit of protection you do get if
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  Speaker 1: you're capable of giving a copyright is called thin protection
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  Speaker 1: by copyright lawyers, which essentially means that you've got to
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  Speaker 1: put the book on a xerox machine and copy it
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  Speaker 1: word for word for there to be infringement. The problem
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  Speaker 1: here is that copyright doesn't allow protection of ideas, and
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  Speaker 1: a recipe how to bake a cake is simply an idea,
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  Speaker 1: and embedded in that idea are some scientific principles that
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  Speaker 1: are just required, and you're not allowed to copyright scientific
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  Speaker 1: principles either. And it's got to be these certain amount
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  Speaker 1: of the ingredients to get the right flavor, it's got
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  Speaker 1: to be a certain temperature being baked in the oven,
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  Speaker 1: and those aren't copyrightable, and so it is a very
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  Speaker 1: challenging thing to assert copyright in a recipe or cookbook,
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  Speaker 1: and about the only parts that can be copyrighted or
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  Speaker 1: sort of the expression of the recipe, so style the
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  Speaker 1: wording describing what this cake is going to turn out
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  Speaker 1: to be, what this cookie tastes like, as opposed to
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  Speaker 1: the actual recipe.
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  Speaker 2: I think, buttermilk was used in one of these recipes
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  Speaker 2: in sort of a different way. So if you have
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  Speaker 2: a really unique ingredient used in one of the recipes
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  Speaker 2: that no one's seen used in this way before, what
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  Speaker 2: about that?
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  Speaker 1: So copyright is different from patents in that what copyright
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  Speaker 1: protects is the expression fixed in a tangible medium, words
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  Speaker 1: written down. It doesn't protect how you do something, and
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  Speaker 1: frankly here that wouldn't be protectable under patent either the
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  Speaker 1: addition of a different ingredient in this case buttermilk. Again,
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  Speaker 1: that really does not help. Although it pretty strongly suggests
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  Speaker 1: that there was plagiarism, and I say plagiarism as opposed
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  Speaker 1: to copyright infront of it, that there may have been
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  Speaker 1: some plagiarism of the recipe that Miss Bellamy was accused
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  Speaker 1: of of copy.
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  Speaker 2: So tell us about this recipe dispute which has really
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  Speaker 2: gotten a lot of play, not only in Australia but internationally, so.
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  Speaker 1: It's an interesting copyright dispute that came up in Australia.
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  Speaker 1: There's a very famous TikTok baking influencer in Australia name
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  Speaker 1: of brook Bellamy and she has over three million followers
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  Speaker 1: and is famous for posting TikTok videos of how you
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  Speaker 1: bake you know, tasty treats. She actually runs a chain
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  Speaker 1: of bakeries in Australia and has achieved quite a bit
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  Speaker 1: of notoriety down Under, but also expanding outside of Australia.
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  Speaker 1: And so last October she came out with her first
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  Speaker 1: cookbook and it was called Bake with Brookie, and that's
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  Speaker 1: important names after her big goods stores which are called
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  Speaker 1: Brookies bake Houses. But this book, because of her fame
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  Speaker 1: as an influencer in the baking circles, was an instant success.
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  Speaker 1: It sold over one hundred thousand copies in less than
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  Speaker 1: six months, gross sales around four million dollars and was
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  Speaker 1: the second best selling book for the Australian Christmas season
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  Speaker 1: last year. So very very successful and just a couple
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  Speaker 1: of days before the Australian Book Industry Awards, which is
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  Speaker 1: a big deal in publishing circles in Australia, and her
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  Speaker 1: book Baked with Brooks He was in competition for Best
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  Speaker 1: Cookbook with a couple other famous long time baking experts,
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  Speaker 1: and one of them, Naji Mahashi, posted online that she
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  Speaker 1: thought two of the recipes in Bake with Brookie were
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  Speaker 1: plagiarized from her own cookbook and laid out the arguments
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  Speaker 1: as to why, and this caused quite a stir. And
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  Speaker 1: then to make things worse, Sally McKenny, famous American baking
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  Speaker 1: cook with a number of cookbooks of her own, out
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  Speaker 1: sort of piled on and said that she thought that
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  Speaker 1: the vanilla cake recipe in Bake with Brookie had been
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  Speaker 1: taken from one of her books. And when you compare
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  Speaker 1: the recipes side by side, there is almost an identity
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  Speaker 1: of ingredients and amounts and cooking temperatures. But in the
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  Speaker 1: case of Sally mckenny's vanilla cake, she does something sort
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  Speaker 1: of unusual. She uses buttermilk and Brooke Bellamy in Bake
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  Speaker 1: with Brookie. Her recipe for vanilla cake also used buttermilk,
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  Speaker 1: which struck Sally m Kenny's odd so she brought this
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  Speaker 1: out and it was sort of that point the oven
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  Speaker 1: mits were off. Folks were chiming in and trolling Brooke
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  Speaker 1: Bellamy onlines to the point where she had to shut
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  Speaker 1: down her ig account. The press was camped outside her
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  Speaker 1: house so she couldn't leave the house. She did not
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  Speaker 1: attend the awards ceremony for the book Industry. Now. The
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  Speaker 1: only time she's left her house since this happened last
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  Speaker 1: week of April was to go visit her lawyers, and
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  Speaker 1: she was followed the entire way.
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  Speaker 2: Did Nagi Mahashi file a lawsuit against her, so there is.
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  Speaker 1: Not actually a copyright infringement lawsuit filed yet. Naji Mahashi
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  Speaker 1: has taken it to her lawyers, who have reached out
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  Speaker 1: to the lawyers for the publishing house to publish Bake
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  Speaker 1: with Brookie the Penguin Random House Group, and the two
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  Speaker 1: sides have exchanged letters, apparently making accusations and denying accusations
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  Speaker 1: and Brooke Bellamy. One of the few postings she's done
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  Speaker 1: is a complete denial and an explanation that much of
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  Speaker 1: the recipe business, both in baked goods and dinners lunches
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  Speaker 1: and things. All that is derivative to start with, and
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  Speaker 1: you build on the same foundation, and therefore she does
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  Speaker 1: not believe that she did anything this reputable, dishonest alone unlawful.
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  Speaker 2: But if the recipe can't be copyrighted, what are the
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  Speaker 2: allegations or causes of action you could even bring.
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  Speaker 1: So it's not that recipes can't be copyrighted. In theory,
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  Speaker 1: they can be copyrighted. It's just very hard to do that.
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  Speaker 1: And to the extent that you have copyright protection, it
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  Speaker 1: almost has to be an exact duplicate of the recipe
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  Speaker 1: to constitute copyright infringement. A lot of what's going on
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  Speaker 1: here is moral posturing. There is this background noise that
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  Speaker 1: is being created that somehow Brook Bellamy is not being honest,
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  Speaker 1: is stealing other people's works. Won't say being a fraud,
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  Speaker 1: but you know that's the implication that people want to draw.
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  Speaker 1: In a very competitive industry in which people are fighting
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  Speaker 1: for book sales and attention, June, this is not something
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  Speaker 1: that's new. The problem is that the law is so
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  Speaker 1: weak in the area it almost invites plagiarism, if not
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  Speaker 1: copyright infringement. I mean, you take the very first US
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  Speaker 1: American cookbook, very famous book called American Cookery by Amelia Simmons,
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  Speaker 1: who was apparently a domestic servant in a household in
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  Speaker 1: Connecticut in the Early Republic, and she published this herself.
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  Speaker 1: She paid for it in seventeen ninety six. And it
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  Speaker 1: was unique because it used exclusively American ingredients, it used
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  Speaker 1: American cooking language, and put forward a lot of very
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  Speaker 1: famous but duil that time, sub rosa American recipes. So
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  Speaker 1: this was the first cookbook to have pumpkin pie in it.
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  Speaker 1: It was the first cookbook to suggest cranberried sauce with turkey.
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  Speaker 1: It was the first cookbook to use the word cookie.
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  Speaker 1: And it sold more copies than any other book in
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  Speaker 1: the Early Republic other than the Bible. The problem was,
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  Speaker 1: as miss Simmons said in her second edition, so she
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  Speaker 1: wasn't making any money off of it. People were freely
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  Speaker 1: copying it and distributing it very widely. The main reason
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  Speaker 1: she came out with secondition was to correct errors that
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  Speaker 1: the publisher had made that were pretty big errors regarding
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  Speaker 1: types of ingredients to be used, in the amount, some
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  Speaker 1: temperatures to be cooked. Pad But I mean historians have
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  Speaker 1: called this book the second tech question of independence, because
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  Speaker 1: he said to Americans, we no longer have to follow
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  Speaker 1: British cooking traditions, baking traditions. We have everything we need
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  Speaker 1: here to be Americans. Even in our domestic household, was
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  Speaker 1: very influential with women. And yet there was massive plagiarism
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  Speaker 1: for fifty years, to the extent where people were starting
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  Speaker 1: to substitute out her name, so she wasn't even getting credit.
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  Speaker 1: He flashed forward in time and he come to nineteen
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  Speaker 1: eighty four, and you have this famous case between Richard
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  Speaker 1: Only and Richard Nelson. Richard Only had written a number
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  Speaker 1: of French recipe books in English, very influential in bringing
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  Speaker 1: French cooking to America, and Richard Nelson came out with
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  Speaker 1: a new book on American French recipes, I think it
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  Speaker 1: was called and Richard Only said, wait, Assican, I count
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  Speaker 1: thirty nine recipes that you took out of my book.
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  Speaker 1: And he actually filed a lawsuit, and the defendant agreed
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  Speaker 1: to the entry of an order stipulating that there had
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  Speaker 1: been infringement, so it wasn't aggressively litigate. He just wanted
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  Speaker 1: to get rid of the lawsuit and entered into a
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  Speaker 1: stipulated order, but there's a case where copyright lawsuit was
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  Speaker 1: actually foiled. It Flash forward in time to twenty twenty
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  Speaker 1: one in the UK and the publishing house Bloomsbury withdrew
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  Speaker 1: what was a really enthusiastically expect that new book on
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  Speaker 1: Singaporean recipes by Elizabeth Hey and another Singaporean chef, Sharon.
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  Speaker 1: We had a last year that most of the recipes
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  Speaker 1: were taken from an older book by her, and the
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  Speaker 1: publishing house withdrew the work. They'd already printed some seventeen
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  Speaker 1: thousand copies and we're ready to go to market, and
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  Speaker 1: just the mere suggestion that there had been copyright infringement
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  Speaker 1: caused them to withdraw the work and not publish it.
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  Speaker 1: In effect, so we have this long history of disputes
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  Speaker 1: of recipes and cookbooks, despite this whole legalarity being sort
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  Speaker 1: of a gray area as to whether or not there
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  Speaker 1: is protection, there's not protection. What's protected? How much do
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  Speaker 1: you have to take to get protection? How much do
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  Speaker 1: you need to take in order to be able to
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  Speaker 1: bring on infringement lawsuits? But they keep coming up, you know,
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  Speaker 1: every decade or so, and now this dispute would refell me.
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  Speaker 1: It's just another example of that down under this time.
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  Speaker 1: But the sub and the law of copyright is the
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  Speaker 1: same under Australian US UK law when it comes to
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  Speaker 1: cookbooks and recipes, and so it's just interesting to see
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  Speaker 1: this flare up from time to time across the different continents.
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  Speaker 2: The one I remember as the one involving Jessica Seinfeld
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  Speaker 2: was sued over a children's cookbook.
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  Speaker 1: Absolutely another great example there. The lawsuit was actually filed
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  Speaker 1: the way the expression was written up in the cookbook.
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  Speaker 1: There was a little bit more meat for the copyright
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  Speaker 1: and infringement lawsuit. But remember who won that case. The
• 11:33
  Speaker 1: defendant actually got a judgment in her favor saying that
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  Speaker 1: this was not protect at work. But again another example
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  Speaker 1: of an attempt to use copyright law to achieve some
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  Speaker 1: sort of intellectual protection for recipes and cookbooks. But I
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  Speaker 1: think this will just continue on and on because there
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  Speaker 1: is no certainty in this area.
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  Speaker 2: So if Naji Mahashi came to you and said, take
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  Speaker 2: my case I want to sue, would you take the case?
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  Speaker 2: What would her chances be?
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  Speaker 1: You know, I think I would say that your chances
• 12:03
  Speaker 1: of getting ultimately a verdict for damages in a copyright
• 12:08
  Speaker 1: infringement lawsuit would not be good. However, Australia does have
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  Speaker 1: one feature in it's copyright law that the United States
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  Speaker 1: law does not have, is this notion of moral rights.
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  Speaker 1: When you use somebody else's work in this way, you
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  Speaker 1: have to give them credit or you've committed a separate,
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  Speaker 1: unlawful action, which is at least remediable by an injunction
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  Speaker 1: requiring that credit be given where credit is due. And
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  Speaker 1: so there is that options, But my advice would be
• 12:34
  Speaker 1: to go about it exactly the way Naja Mahashi's listeners
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  Speaker 1: are feeling about it. You bring up the issue with
• 12:39
  Speaker 1: the publishing house and you say, look, we think there's
• 12:41
  Speaker 1: a problem here, and see what they say, and then
• 12:45
  Speaker 1: if they deny it, you have a base to take
• 12:47
  Speaker 1: that to the court of public opinion. Is being done
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  Speaker 1: here and see what happened, because after all, a lot
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  Speaker 1: of what's going on here has to do with competition
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  Speaker 1: within the cookbook field, and there's this general perception that
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  Speaker 1: you should not be adriizing other people's recipes. But if
• 13:02
  Speaker 1: you choose to do so, you ask permission and give credit.
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  Speaker 1: And I cannot tell you, June how many potential copyright cases.
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  Speaker 1: I've been able to avoid on behalf of my clients
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  Speaker 1: simply by telling them, look, say you're sorry, and give
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  Speaker 1: full credit, because at the end of the day, that's
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  Speaker 1: often what it's all about. They just want to be
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  Speaker 1: recognized as this was their creation, this was their work,
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  Speaker 1: and especially in this field of cookbooks recipes, permissions are
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  Speaker 1: often granted to allow someone to use another person's recipe.
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  Speaker 1: You just have to ask and then give credit. And
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  Speaker 1: I think that's the big lesson to be learned here
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  Speaker 1: with respect to copyright law in the context of cookbooks
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  Speaker 1: and recipes, because.
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  Speaker 2: It seems like the damage has already been done here.
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  Speaker 2: I mean, she's hiding in her house.
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  Speaker 1: I think this is probably an enormous financial hit. Certainly
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  Speaker 1: it's bound to affect sales of her book, Bake with Brookie.
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  Speaker 1: She's taken down her social media and when you have
• 14:00
  Speaker 1: a large portion of your persona wrapped up as an
• 14:05
  Speaker 1: online influencer in the social media forms, to have that
• 14:08
  Speaker 1: simply disappear, it's not just personally hurtful to you, it's
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  Speaker 1: financially damaging. Because they are with that many followers, they
• 14:16
  Speaker 1: are able to monetize that amount of followers, and all
• 14:19
  Speaker 1: that money is being lost as well, So the damage
• 14:22
  Speaker 1: has probably been done regardless of whether you need a
• 14:24
  Speaker 1: lawsuit to be filed, and we'll just have to wait
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  Speaker 1: and see whether mis Mahashi does follow through with a lawsuit, and.
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  Speaker 2: The repercussions for Bellamy seem to be continuing. Thanks so much, Terry.
• 14:37
  Speaker 2: That's Terrence Ross of Catain Mutchen Rosenman, and that's it
• 14:41
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  Speaker 1: M mhm