A recipe for disaster: fitspo personality threatened with copyright infringement proceedings

Article written by: Brigette Shone    |    Monday 15th January 2018

Australian fitness personality, Ashy Bines, could be in hot water following a food blogger's claims a Bines' ebook contains material directly from her blog. We discuss these claims and provide some lessons to take away from this. 


An Australian food blogger, Alexandria Dodd, is crowdfunding to raise money to file copyright infringement proceedings against well-known Australian fitness personality, Ashy Bines. Ms Dodd’s claim is that Ms Bines took her copyright material and used it in an eBook she then sold online. The material includes several recipes, and accompanying photographs including one of Ms Dodd showing a distinctive heart tattoo on her hand.

The claims date back to 2015, when Ms Dodd says that she discovered her copyright material in Ms Bines’ eBook. At the time, Ms Bines stated in a video clip: 

'It's recently come to my attention that some recipes were not originals at all and have been copied from other sources… Unfortunately, I may have been too naive to think I wouldn't have to check the origins of each recipe.'

Would Ms Bines be liable for copyright infringement? Well, probably.

Copyright in a work arises automatically when certain original works, including photographs and recipes, are created by a “qualified person”. In Australia, a “qualified person” includes someone who first publishes their work in Australia and is an Australian citizen or permanent resident. [1] And once copyright arises in a literary or artistic work, it continues to subsist for 70 years after the death of the author.[2]

If Ms Dodd is the owner of the works – if she took or commissioned the photographs and wrote the original recipes herself[3] – then she stands in a strong position to assert a claim of copyright infringement against Ms Bines.

Copyright in work gives the owner a range of exclusive rights. Amongst those are the rights to reproduce and publish the work.[4] If Ms Bines has copied and “substantially reproduced” the original works from Ms Dodd’s blog in an eBook without permission, she will likely be liable for copyright infringement. It also assists Ms Dodd’s case that her content was easy to uplift being on her blog.

To the extent that Ms Dodd’s recipes and photographs are not themselves original, however, Ms Dodd won’t be afforded any protection. Given that recipes are often based on elements of previous recipes, Ms Dodd’s protection might be limited if the copied recipes are not exact or near identical copies of Ms Dodd’s recipes. That said, the court will determine qualitatively whether copying has occurred, not quantitively – there is no magical “ten percent rule”.

The remedies available for copyright infringement include an injunction (e.g. to cease reproducing the copied works) and damages or an account of profits. If Ms Bines unknowingly infringed copyright, she may be liable only for an account of profits. Ms Bines claimed she was unaware that infringement had occurred in 2015. But the same cannot be said for the period since 2015 and damages might follow for that period. If Ms Bines knowingly, continuously, and flagrantly infringed the copyright in Ms Dodd’s works, additional damages may be awarded. These damages can be upwards of AU$100,000.

What lessons can we take away from this?

  • keep sound records of the development of your copyright works and ownership details;
  • take steps to protect your copyright works from being uplifted, and monitor the internet for infringement;
  • immediately place any person infringing your copyright on notice. It may stop them in their tracks or increase the remedies available to you;
  • there is no “ten percent rule” around the amount of content you may copy from an original work; and
  • if you are infringing copyright, be aware that the courts can award significant additional damages for flagrant copying.

 


This article is intended to summarise potentially complicated legal issues, and is not intended to be a substitute for individual legal advice. If you would like further information, please contact a Baldwins representative.


[1] Copyright Act 1968 (Cth) s 32.

[2] Copyright Act 1968 (Cth) s 33.

[3] Copyright Act 1968 (Cth) s 35.

[4] Copyright Act 1968 (Cth) s 31.

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