The Court War Over Cupcakes

By: Jessica Kim. J.D. Candidate 2018

Elizabeth LaBau, is a popular food blogger and dessert recipe creator who runs www.sugarhero.com.[1]  Back in 2014, LaBau, posted a recipe for snow globe cupcakes which later went viral.[2] Her recipe video garnered her 740,000 shares on Facebook, causing her website to shut down temporarily, and ended up tripling her site’s income that month.[3]  According to her complaint filed in the United States District Court of Central California, hundreds of people have shared photos, comments, and left feedback on her site about her “snow globe” cupcakes.[4] She would later describe her snow globe cupcake recipe as her “signature recipe.”[5] The next year, as her response to the popularity of the snow globe cupcakes, LaBau created a video tutorial with step by step instructions for creating the edible globe using gelatin and water balloons.[6] However, three weeks later, another substantially similar video appeared on the Food Network’s Facebook page using similar camera angles, typesetting, and coloring.[7]

While the recipe itself is not protected under Copyright law, the video of the step by step process might be.[8] Under the U.S. copyright law, a “work is copyrightable if it is a work of original authorship fixed in a tangible medium of expression that demonstrates sufficient creativity, and contains artistic aspects that are separable from its utilitarian functions.”[9]  In her complaint, Ms. LaBau claims that it is her signature recipe and video that is copyrightable as they have been featured on food websites like Delish.com and she has appeared on local news stations demonstrating how they are made.[10] Additionally, Ms. LaBau’s complaint states that the “Food Network video copied numerous copyrightable elements of Plaintiff’s work precisely, including but not limited to choices of shots, camera angles, colors, and lighting, textual descriptors, and other artistic and expressive elements” of her work from www.sugarhero.com. [11]

To learn more about the laws in food art and whether it is protected under U.S. Intellectual Property law, see Cathay Smith’s comment: “Food Art: “Food Presentation” Under U.S. Intellectual Property Law.”

[1] www.sugarhero.com

[2] See Derek Hawkins, ‘Cupcake wars: Blogger sues Food Network over snow globe recipe video,’ Washington Post, June 5, 2017, https://www.washingtonpost.com/news/morning-mix/wp/2017/06/05/cupcake-wars-blogger-sues-food-network-over-snow-globe-recipe-video/?utm_term=.af7f14517182.

[3] Id.

[4] Compl. at 22, Labau v. Television Food Network, 2:17cv4077, C.D. Cal 2017.

[5] Id. Derek Hawkins, ‘Cup Cake wars’.

[6]  See ‘Blogger sues Food Network over adorable cupcakes,’ New York Post, June 6 2017, http://nypost.com/2017/06/06/blogger-sues-food-network-over-adorable-cupcakes.

[7] See ‘US food blogger sues Food Network over snow globe cupcakes,’ BBC News, Jun 3, 2017, http://www.bbc.com/news/world-us-canada-40137722.

[8] See 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright §2.18[I] (2007).

[9] Kim Seng Co. J&A Importers, Inc., 810 F.Supp.2d 1046, 1053 (C.D. Cal. 2011). See also U.S.C. §101; Feiest Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991).

[10] See Compl. at 23.

[11] See Compl. at 28.