Copyright and biscuits: big questions asked in Donna Hay and Women’s Weekly stoush

It was the sort of article a fortnight ago which caused a chuckle and then disappeared from view. Donna Hay, furious that her Martha-Stewart-style, beautifully presented cover display of biscuits in a box had been apparently replicated on the cover of the Women’s Weekly Christmas Baking edition months later, let fly with a few choice epithets on social media.

In turn, the Women’s Weekly were said to respond with the side splitting riposte (well, not quite) “That’s the way the cookie

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crumbles”. They further indicated that there are only a certain number of ways one can photograph biscuits, implying that the common use of a compartmentalised box, artfully draped ribbons and even sheet music are common tools of the trade for arty food photographers.

That may be true. Certainly, a comparison indicates that the offending cover may be sufficiently different not to cross into illegitimate legal territory. For your own assessment, see here.

That said, this serves as a timely reminder that the ‘there are only a limited number of ways to do something’ excuse will only get you so far in the copyright world.

An artistic work need not have any artistic merit. This principle is intended to inhibit the capacity for debate over whether a painting of a red box called ‘red’, or the random flicking of paint from brushes onto butchers’ paper on a wall, or the act of sliding your body around a paint-filled canvass with sheepskin strapped to your hands, can be said to satisfy the requirements of the Copyright Act. After all, Jackson Pollock and Pro Hart only became famous after they pushed the envelope of their respective disciplines.

From a Court’s perspective, once the originality requirements for an artistic work have been satisfied, the inquiry will turn to:

  • did the Respondent copy?
  • if so, was it a substantial reproduction?

From experience, the ‘copying’ question is the most significant. Should this be denied, but the judge finds the denial unconvincing, it can be difficult to head back into the winning zone. It’s in this context that attempts to deflect attention from copying with the time honored : “There are only a limited number of ways one can do this” excuse, will often find little favour.

It follows that one of the first questions to ask after receiving a letter of demand and interrogating the troops is: “Tell me, is there anything I need to know?”. The next question is: “Show me what inspired you.”. If the inspiration file is coherent and shows independent derivation, then all well and good. If, however, it contains a copy of the copyright work at issue, then in most cases it’s time to have a think about offering some undertakings, to avoid any further escalation of the matter.

Of course, inspiration is permissible, and clear differences in resulting works will increase the likelihood that copyright infringement can be avoided. If that is the case, then there is nothing wrong with being inspired. It’s where the true source of inspiration is denied, that the risk of later being ‘found out’ can cause those problems to multiply and grow.