One Cannot Copyright Recipes by bluepastry Blog entry

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by bluepastry

One Cannot Copyright Recipes

recipes cannot be copyrighted

Date: 4/8/2006 10:40:47 PM ( 18 y ) ... viewed 5433 times

Recipes:
A recipe cannot
be
copyrighted!
Period.

The textual descriptions that may be in a recipe, if they are creative and original, may be protected by copyright. Similarly, any accompanying photographs and illustrations are protected by copyright. But the recipe itself cannot be protected by copyright.

Section 102 of the Copyright Act provides that

Copyright protection subsists, in accordance with this title, in original works of authorship . . . . In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. Act § 102.

The courts have held uniformly that this provision means that the literary expression of a recipe but not the recipe itself can be copyrighted.

The Copyright Office itself maintains a FAQ which includes:

29. How do I protect my recipe?

[Answer] A mere listing of ingredients is not protected under copyright law. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a collection of recipes as in a cookbook, there may be a basis for copyright protection. See FL 122.

"FL 122" refers to a "Form Letter". The Office often receives inquiries and requests for information on the copyright of recipes, so the office developed a form letter, which is available online.

Here's an example:

Suppose that a recipe is in the normal format -- 2 teaspoons of this, 3 tablespoons of that, diced, simmer for 5 minutes, etc. This kind of recipe cannot be protected by copyright.

Now compare a paragraph from Smoky Hale's book, The Great American Barbecue & Grilling Manual. Smoky's recipe for a fine grilled steak, in the section entitled "In Pursuit of the Perfect Steak" (page 75 ff), does not give the direction to turn the steak when it no longer sticks to the grill. Instead, Smoky writes:

"Allow the meat grate to heat up. When the grill is right, wipe the steaks dry and place the steaks carefully and firmly upon the grill. Then leave them alone! Do not touch them, talk to them or worry them in any way! Steaks know when they need to be turned and will show you -- if you let them. When a ready steak meets the heated grill, they seize each other with the intensity of newlyweds. At the proper time, they will turn loose. Flip them over with a spatula, not a fork. They will grab again. When they turn loose the second time, the honeymoon is over and it's time to get on with business." Id at 79.

"When a ready steak meets the heated grill, they seize each other with the intensity of newlyweds." This certainly qualifies as an original literary expression! Smoky's text is protected by copyright.

Again, a recipe (meaning the cooking ingredients, measurements and directions) may not be protected by copyright. However, an original literary expression within the recipe may be protected.

Recipe book
A recipe book may be protected by copyright. A separate section of the Copyright Act provides specifically that compilations (like a book of recipes) may be protected by copyright, even if no single recipe may be protected. The Act states, in relevant part:

The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material. Act § 103.

If a group of non-copyrightable recipes is collected ("compiled") into a book, then the compilation is protected. However, none of the individual recipes would be protected merely because the compilation is protected. Therefore, if a group of recipes is compiled together in a book or on a website, then the author is entitled to copyright protection for the compilation as a whole. However, this does not extend to the protection of any single recipe.

This is not to say, of course, that a single recipe contained in a compilation is not protected. If that recipe itself contains an original literary expression, then the text of that expression (but not the cooking ingredients, measurements and directions) may be protected.

How long?
How long does a copyright last?

For example, Charles Ranhofer first published his great treatise, The Epicurean, in 1894. Is it still protected by copyright, or may anyone copy it, put some or all of it on the website, or reprint and sell it without paying any royalties? (For more on Ranhofer, see the webpage about Delmonico's.)

The answer used to be easy, but not any more. A general (but not entirely accurate) summary is described in the Copyright Office FAQ, Answer 46:

For works created after January 1, 1978, copyright protection will endure for the life of the author plus an additional 70 years. In the case of a joint work, the term lasts for 70 years after the last surviving author’s death. For anonymous and pseudonymous works and works made for hire, the term will be 95 years from the year of first publication or 120 years from the year of creation, whichever expires first;
For works created but not published or registered before January 1, 1978, the term endures for life of the author plus 70 years, but in no case will expire earlier than December 31, 2002. If the work is published before December 31, 2002, the term will not expire before December 31, 2047;
For pre-1978 works still in their original or renewal term of copyright, the total term is extended to 95 years from the date that copyright was originally secured. For further information see Circular 15a. Id.
Note: Circular 15a is a Copyright Office publication in PDF format.

Trade secret
Since food producers cannot protect their recipes from being copied, they use the law of "trade secrets" to protect them. This means simply that the producers go to great lengths to keep their recipes secret from their competitors and from the general public. If a business acts in a reasonably prudent manner to protect its business ("trade") secrets -- including not just recipes but also customer lists, price lists, and similar business information of a valuable and confidential nature -- then the law will extend legal protection to prevent the disclosure or use of such information.

Consider the Coca-Cola recipe. It is said that only two people in the world know the actual recipe. The Coca-Cola syrup and bottling procedures are designed so that no single person knows the entire recipe. Yet, if a disgruntled former employee threatened to disclose the recipe to the public, the company could obtain a court order prohibiting the disclosure.

Of course, if the former employee simply emailed the recipe to the world, then the court order would be useless, which is the point of the company having very strong trade secret policies and procedures.

Trade secrets are completely different from copyright protection, but they often provide similar protection.

Assume that Tom tries to closely guard his recipe for his world famous barbecue sauce. Tom uses reasonable protection of his recipe and has his employees (including his secretary, Conrad) sign standard-form Confidentiality Agreements.

Assume, however, that Tom's archrival competitor hires away Conrad, who give the recipe to the competitor, and the competitor plans to start selling a similar barbecue sauce.

In this case, because Conrad and the competitor have engaged in "unfair trade practices" and violated Tom's trade secrets, Tom has the right to sue both Conrad and the competitor to stop them from using the recipe and from disclosing it to anyone else.

Finally, it may be noted that a work may be entitled to both copyright protection and trade secret protection. Prior to 1978, there was some doubt on this point as to some types of works (primarily computer programs), but the 1978 Copyright Act eliminated this concern and doubt. See Oppedahl.

Name
A name may not be protected by copyright. This includes the name of a recipe, a book, a contest, or a team. Barbecue team names cannot be protected by copyright law. See FAQ 43.

Note, however, a few teams may be eligible to have their team names protected by either federal or state trademark law. The major requirement here is that the team must be conducting a trade or business.

Non-legal note: Because all barbecue teams -- even those which are not caterers, restaurateurs or "professionals" -- compete in contests for money, any team can claim that it is engaged in a trade or business and thus register for trademark protection. Consult an attorney for legal advice.

Similarly, the name of a commercial product or service may be protected under federal and/or state law.

Copyright myths
Here are some commonly held myths about copyright, from the website of Brad Templeton. These are myths and hence wrong!

If the work does not display the copyright notice, it is not copyrighted.
If a copy is given away without charge, there is no copyright violation.
If the work (like a message) is posted to a mailing list or newsgroup, then it is not protected by copyright and is in the public domain.
If the author (copyright holder) does not defend the copyright, then it is lost.
A name can -- such as a barbecue team's name, or a contest's name -- can be protected by copyright.
A recipient of an email has the right to resend or forward it to others, to put it on a website, and to include it in a book or FAQ.
For more information about these myths, see the website of Brad Templeton.

Finally, another commonly held myth is that anyone who sees a story or picture that is "all over the net" has the right to copy it. This is wrong. Copying a work does not affect its copyright status. In other words, just because everyone is infringing by copying a work does not give anyone the right to do so.

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Citations:
Copyright Act of the United States, Title 17, United States Code.
Copyright Office FAQ about recipes.
C. Clark "Smoky" Hale, The Great American Barbecue & Grilling Manual. Abacus Publishing Co., Mississippi. 2000.

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Related Resources:
The Library of Congress website with the Copyright Law of the United States (Title 17, U.S.C.)
Frequently Asked Questions of the Copyright Office (Number 29 concerns recipes)
Publications International v Meredith Co., Case Nos. 95-3485 & 95-3530, 88 F.3d 473 (7th Cir. 1996), a leading case on the question of recipe protection under the Copyright Act
Oppendahl & Larson website on Copyright.
Brad Templeton website, "10 Big Myths about Copyright Explained"