Who Owns What? Recipe & Hospitality Intellectual Property Ownership

Intellectual Property Ownership: If your staff creates a recipe, concept, or design – who owns it?

Understanding intellectual property and its relevant to recipes

Intellectual property (IP) refers to a bundle of legal protections afforded to creations of the mind, ranging from inventions and artistic works to trademarks and trade secrets. In the culinary world, IP plays a subtle yet important role. A dinning experience is not limited to taste alone, it can encompass elements such as the recipe, presentation, branding, and even unique cooking methods.

What can be protected as IP in the culinary context?

1. The recipe itself: the written instructions specifying ingredients and preparation steps;
2. Presentation and plating: the artistic arrangement and garnishing of food;
3. Branding and names: trademarks, logos, or distinctive dish names; and
4. Unique cooking techniques: proprietary or innovative preparation methods.

While many of these aspects can fall within existing IP frameworks, recipes themselves present unique challenges.

Forms of IP Protection in Australia

1. Copyright

Copyright protects original works once fixed in a tangible form, such as books, music, or visual art. For recipes, copyright protects the expression of the recipe (the way it is written, described, or presented), but not the idea itself. For example, two chefs may independently write down a chocolate cake recipe and both will hold copyright in their written text. However, the act of baking that cake or using the same ingredients remains outside copyright’s reach.

2. Patents

Patents grant exclusive rights over inventions that are novel, inventive, and useful. Recipes can only be patented in rare circumstances, typically when they involve a technical or scientific innovation, such as a new preservation process or an innovative chemical composition in a dish. Most recipes, being combinations of familiar ingredients and methods, will not meet the high threshold for patent protection.

3. Trade secrets

Perhaps the most effective protection for recipes, trade secrets safeguard confidential business information that provides a competitive advantage. The Coca-Cola formula and KFC’s secret blend of herbs and spices are well-known examples. For trade secret protection to apply, strict confidentiality measures, such as non-disclosure agreements, must be maintained.

4. Trademarks

While trademarks cannot protect a recipe itself, they can protect the branding surrounding a dish or restaurant. Distinctive names, logos, or slogans allow businesses to build market identity and customer loyalty.

The challenges of protecting recipes

Recipes are inherently functional and often draw upon widely known techniques and ingredients. This makes it difficult to prove originality and secure traditional IP protection. The widespread publication of recipes in cookbooks, blogs, and social media adds further complexity.

Enforcement is also problematic. Even where a recipe is covered by copyright or trade secret, proving infringement is rarely straightforward. A competitor making a similar dish with minor variations may not amount to a breach of rights.

Alternative strategies for safeguarding recipes

Because of these limitations, chefs and food businesses often rely on practical, business-focused strategies rather than legal rights alone. Common approaches include:

1. Branding and marketing: Building a strong identity through unique names, logos, and storytelling.
2. Confidentiality agreements: Protecting recipes with non-disclosure agreements for staff and suppliers.
3. Continuous innovation: Staying ahead of competitors by regularly developing new and creative dishes.
4. Community engagement: Using customer interaction, social media, and storytelling to enhance the perceived value of a recipe.

Recipes and IP: the legal ingredients behind a social media dispute

A recent social media dispute between two well-known figures in the food industry has highlighted the complex relationship between recipes and IP law. Nagi Maehashi (Maehashi), the creator of the popular cooking website RecipeTin Eats, has accused bakery owner Brooke Bellamy (Bellamy) of reproducing two of her recipes in Bellamy’s best-selling cookbook Bake with Brooki. In support of her claim, Maehashipublished a comparison showing ingredient lists that appear almost identical to her own.

At first glance, this might seem to present a straightforward case of copyright infringement. However, the legal analysis is not as simple as it may appear. In the culinary world, recipes are often regarded as a chef’s signature and a reflection of their creativity. Yet, in legal terms, recipes sit within a grey area. Unlike artistic works or inventions, recipes are primarily functional: they are instructions designed to achieve a particular outcome. This functional nature limits the extent to which traditional IP frameworks can apply.

IP created by employees

Employees often create IP as part of their work. For example, recipes or a new produce design. In Australia, employers own the IP their employees create in relation to the business. Exceptions to this rule must be in the employment contract to be legally binding.

Using contractors or freelancers: protecting your rights

Contractors are often hired to create a wide variety of new materials, including valuable IP. For example, websites, logos and designs. In Australia, IP created by a contractor is the property of the contractor unless otherwise stated in the contract.

The default position

Under Australian law, the default position is that independent contractors own the copyright in works they create, even if those works were commissioned and paid for by your business. Unless IP ownership is addressed in writing, this can lead to serious complications. A contractor may later restrict or even prevent your business from using the very works you engaged them to produce.

Employees vs independent contractors

The law draws a clear distinction between employees and contractors:

1. Employees: Works created “in the course of employment” typically belong to the employer.
2. Independent Contractors: IP created by contractors usually belongs to them, unless a contract specifically transfers ownership.

Without such a transfer, your business may only have an implied licence to use the work, which offers limited protection.

How do I protect my business?

To avoid disputes, businesses should ensure that IP ownership is clearly transferred from the contractor. This can be achieved through:

1. Written agreements that specify IP ownership;
2. IP assignment deeds to formally transfer the bundle of rights and entitlements; and
3. Clear agreements at the outset of the engagement.

Ensuring ownership of creative assets (photos, menus, packaging)

IP can be owned, licenced and used by others as agreed through contracts. If IP has been created for someone else in an agreement, the contract should set out who owns the copyright.

Ownership

Owning IP rights is similar to owning a house. The owner has full control and may use the IP as they wish (subject to moral rights). Importantly, the owner can also transfer or assign their rights to another person or business, who then becomes the new owner.

Licensing

A licence allows the IP owner to give someone else permission to use the IP while retaining ownership. Licences may be:

1. Non-exclusive: the owner can license the IP to multiple parties.
2. Exclusive: only the licensee can use the IP, not even the owner.
3. Sole: the licensee and owner can both use the IP.

Licences may also be transferrable or non-transferrable and can sometimes permit sub-licensing. Often, licences involve payment of fees and royalties.

Permitted Use

Any agreement involving IP should carefully outline how the IP can be used and for how long. This might include permission to:

1. Reproduce or modify the IP for a specific purpose;
2. Commercialise it;
3. Keep it confidential; and
4. Develop new works based on it.

Key clauses to include in contracts and agreements to retain IP

Well drafted contracts should clearly set out:

1. Who owns the IP created under the agreement (employer, contractor or client)
2. Who may use the IP commercially
3. Whether and when ownership transfers
4. Rights to improve or modify the IP
5. Confidentially obligations
6. Requirements to return IP at the end of the engagement
7. Non-competition restrictions.

Clearly defining ownership, licensing terms and permitted use in contracts helps protect both businesses and creators. Addressing these issues upfront reduces the risk of disputes and ensures everyone understands their rights and obligations.

How can we help?

If you believe someone has infringed upon your IP rights and would like assistance in understanding your rights and implications (if any), our experienced team of solicitors is here to help. Contact Rostron Carlyle Rojas Lawyers today to discuss your legal options.

The blog published by Rostron Carlyle Rojas is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog published. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult RCR on any legal queries concerning a specific situation.