Cookbook authors, food bloggers and recipe developers have many questions about protecting, sharing, and adapting recipes. In this blog post, I respond to the 28 questions submitted by culinary professionals during my recent webinar sponsored by the International Association of Culinary Professionals.
Potential methods of protecting recipes include copyright, trade secret, contract, and patent. My webinar comments and this blog posting focus on copyright which is the most utilized form of protection for recipe protection. (I briefly discuss potential recipe protection offered by trade secret, patent and contract law here.)
Here is a summary of the key points I shared during the webinar, broken down into five principles. In the next section below, my responses to the questions will refer back to these five principles.
Principle One. Many Recipes Do Not Qualify for Copyright Protection. A recipe that simply lists ingredients and basic cooking directions is not protected by copyright law. That is because copyright law does not protect basic facts, procedures or processes. As an example, the following recipe is NOT protected by copyright.
Cranberry Gelatin Mold
- 6-oz package of strawberry-flavored gelatin
- 8 ounces of crushed pineapple
- 12-ounce can of whole cranberries
Preparation Instructions: Dissolve the gelatin in 2 ½ cups of boiling water. Add the pineapple and cranberries. After the mixture cools, transfer it to a bowl and chill in refrigerator until firm. If desired, garnish with whipped topping before serving.
A group of recipes (e.g., a cookbook, the entire content of a food blog) might qualify for copyright as a compilation even if the individual recipes do not qualify for protection on their own.
In contrast to the ingredient list and directions for cranberry gelatin mold above, a recipe that incorporates expressive elements might qualify for copyright protection. For a recipe, expressive elements might be suggestions for presentation, advice on wines, and information on the origin of the dish.
Principle Two. When Available, Copyright Protects Only the Text of the Recipe. Copyright protection of a recipe protects only the text. That means you cannot offer a verbatim or substantially similar copy of a copyright-protected recipe in your own cookbook or website without the copyright owner’s permission or without an applicable exception to copyright protection.
Principle Three. A Recipe that Is Not Copyright-Protected Can Be Copied with No Legal Copyright Consequences. Of Course, There Is a Caveat. If a recipe is not copyright-protected, anyone can duplicate the text of that recipe without violating any copyright laws. However, if you duplicate the recipe by making a photocopy of the book or magazine page or screen-print of the webpage on which it appears, your copy of the recipe might pick up elements of the book design or webpage that do qualify for copyright protection (e.g., illustrations, book layout, webpage design elements). Your capture of those copyrighted elements might qualify under the copyright fair use exception; however, it depends on the specific circumstances of your use. (See Principle Five)
Principle Four. Copyright Does Not Prohibit Anyone from Cooking or Preparing the Recipe. Copyright protection does not prevent you from making and offering a dish based on the same recipe – even if you offer the dish for sale. Likewise, copyright protection does not prevent you from extracting the raw information offered by the recipe – such as the list of ingredients and the preparation instructions – and using that information in your own recipes. (This situation might be different for a recipe protected by trade secret, by patent – and to a lesser extent by contract.)
Principle Five. Duplication of Copyrighted Materials Usually Requires Permission from the Copyright Owner. As a general rule, you should obtain permission before using another person’s intellectual property. This applies to duplication of a copyright-protected recipe as well as other materials protected by copyright such as images, music, films, etc. Exceptions include a use protected as a First Amendment use, as a fair use, or as a parody use. Application of these exceptions is very fact- specific and often subjective. As a bottom line, if you use someone’s copyrighted protected material without consent, there will always be some level of risk – even though the risk might sometimes be minimal. You can find some questions here to help you evaluate the risk of using copyrighted material without permission.
RESPONSES TO QUESTIONS ABOUT RECIPE PROTECTION
These are my responses to the 28 questions and comments submitted by the culinary professionals attending the IACP Protecting Recipes webinar. To minimize duplication, the following responses refer back to the five recipe protection principles outlined above.
COPYRIGHT PROTECTION AND COPYRIGHT REGISTRATION FOR RECIPES
1. Where do headnotes fall in all this? Does the headnote make the recipe different enough to be copyrightable? I understand headnote to mean descriptive text about the recipe. A headnote might provide the expression necessary for copyright protection. (See Principle One)
2. Can recipe photos be copyrighted? Yes, copyright law protects photos and images.
3 &4. What is the process and cost of filing a copyright registration? AND How does one register a copyright (specifically for a recipe)? As outlined in the blog posts on Copyright Protecting Your Work, Part One and Part Two, to register your copyright, you must submit three items to the Copyright Office: a completed application, a deposit, and a filing fee. and. As of this writing, the copyright registration filing fee for a basic registration starts at $35. For additional assistance with preparing a copyright registration application, the Copyright Office publishes several information circulars and The Cyber Citizen’s Guide Through the Legal Jungle includes fully annotated examples of completed copyright registration applications.
USING OTHER PEOPLE’S RECIPES
Webinar attendees asked numerous questions about “using other people’s recipes”. To answer this question, we must first determine the meaning of “use”. If “use” means copying the text of the recipe into your own book, website or other publication, there is no copyright issue if the recipe is not copyright-protected. (See Principle Three along with its caveat)
If use means preparing the dish based on the recipe and even selling that dish, you can freely do so regardless of whether the recipe is protected by copyright without violating any copyright laws. See Principle Two. If “use” means extract the raw facts – ingredients and instructions - and present them in your own words, you can freely do so regardless of whether or not the recipe is protected by copyright without violating any copyright laws. (See Principles Two and Four)
5. Can a newspaper copy and reprint recipes? Like anyone else, a newspaper can reprint recipes that are not copyright-protected. If the recipe is copyright-protected, the newspaper should have permission to reprint it or should determine that its use falls into an exception for requiring permission such as fair use. (See Principle Five)
6. Are there special rules for using recipes in academic publications (aka using it with citation, etc.)? There are no special rules specifically for an academic publication that wants to re-print a recipe. However, if the academic publication wants to rely on fair use to re-print a recipe, educational and academic uses are favored uses under the fair use analysis.
8. If you buy a cook book, you have paid for the book including the recipes so why can’t you use them as you like including rewriting them in your own form? By “use” if you mean prepare the dishes presented in the cookbook, you can. (See Principle Four) By “use” if you mean duplicate the recipes verbatim on your website, book, or other publication, duplicating multiple recipes from the cookbook verbatim holds the potential of violating the compilation copyright in the cookbook even if each recipe is not independently copyrightable. (See Principle One – read to the end for relevant point). Yes, you paid for the physical (or electronic) copy of the book. However, ownership of a physical (or digital) copy does not entitle you to reprint, copy, post it on the internet, or further distribute it as you please. Those activities are the exclusive rights of the copyright owner. The same concept applies to dvd’s, cds, novels, artwork, and any other copy of copyright-protected content that you might purchase.
9. As bloggers we post recipes because we'd like people to make the recipes. How does this fit for blogging about a recipe made from another blogger's recipe post and discussing and photographing results? Copyright protection of a recipe does not prevent anyone from making the dish featured in the recipe. (See Principle Four) If you see a recipe on another website, you can make that dish, discuss your experiences in following the recipe, and take a photograph of the dish you make. The activity that might be problematic is duplicating the recipe verbatim if the recipe is copyright-protected. (See Principle Two)
MAKING A RECIPE YOUR OWN
10. When I used to work in recipe development, the golden rule for making a recipe "your own" was changing, significantly, 3 ingredients. Is that an actual edict or just something some food editors came up with? While this golden rule might be a part of the moral code for culinary professionals, it is not a tenet of copyright law – or any other method for the legal protection of a recipe. If the original recipe that inspires you is not eligible for copyright protection, you may legally publish a modified version of the recipe – even if your modifications are minor. (See Principle Three) If the original recipe is copyright-protected and you re-publish it verbatim except for changing three ingredients, the change alone will not shield you from copyright infringement liability. You may prepare the dish featured in the recipe – regardless of whether or not the recipe is copyright-protected. (See Principle Four).
11 & 12. There are only so many ways to make certain dishes, so how do you deal with that and ensuring that your recipes are different enough so you don't get sued? AND If I'm making a recipe about a common food (i.e. overnight oats or salads in a jar), what do I have to do to make it my own? Copyright protects only the text of the recipe – prohibiting you from re-printing the recipe verbatim. Copyright does not prohibit you from preparing the dish or developing your own version of the dish. (See Principles Two and Four)
13. Can I use on my website the recipes I developed while working at a corporate test kitchen or do those recipes belong to the company? The copyright in copyright-protected material developed by an employee within the scope of his employment belongs to the employer as a work made for hire. However, there are several issues you must address for a definitive answer in this situation including the following:
- Are the resulting recipes copyright-protected? Even if the answer is no, this issue requires more analysis because of the employee-employer relationship.
- are the recipes protected as a trade secret (think McDonald’s secret sauce and the formula for Coca-Cola)
- Did the employee sign a contract (e.g., a non-compete or non-disclosure contract) dictating how the employee may use the recipes
CREDITING SOMEONE WHEN USING THEIR RECIPE
14 & 15. What is the correct way to credit someone who wrote a recipe that yours is inspired by? AND So, how do you properly credit someone for their recipe or method? For copyright law purposes, “credit” is not really an issue. If the recipe is not copyright-protected or your use qualifies as a fair use, there is no legal requirement to give credit when using public domain or fair use materials. If the recipe is copyright-protected, giving a credit will not shield you from copyright infringement liability. If the copyright owner has granted you permission to re-print or duplicate a copyright-protected recipe, you should provide whatever credit you negotiated with the copyright owner.
16. Can a recipe be copied verbatim, if credit is given to the recipe author? If the recipe qualifies for copyright protection, copying the recipe verbatim without the copyright owner’s permission is copyright infringement (unless an exception applies) – regardless of whether you credit the recipe author. (See Principles Two and Five)
17. So are you basically saying the literature of a recipe or a group of recipes are the only things that can be protected? For a recipe, copyright can protect the text (literature in your words). For a group of recipes, copyright can protect the text as well as the manner and order in which the recipes are presented (i.e., protection as a compilation).
18. I see recipes on, for example, Martha Stewart's site, then I see that same recipe on a blogger's website. Is that "legal"? There is no credit given. If it is a verbatim copy of the Martha Stewart recipe and the blogger does not have permission for the re-print, it might be copyright infringement. If it is the blogger’s revised rendition of the recipe in the blogger’s own words – it likely presents no copyright issue even if the blogger uses the same ingredients and basic procedures as Martha Stewart’s recipe. (See the Principles)
19. What about recipe round-ups? This is a common way for food bloggers to post recipes from others. Verbatim copying without permission might be copyright infringement – especially if the food blogger is taking multiple recipes from a single source.
USING OTHER PEOPLE’S IMAGES OF DISHES
20. If I wanted to use a recipe and photograph from someone on my website, do I need permission to do so and how would I go about getting that permission? You should obtain permission prior to posting copyright-protected materials on your website. (See Principle Five) The recipe you want to post might or might not be copyright-protected. (See Principle One) The photograph you want to post is highly likely to be copyright-protected. A complete explanation of how to get permission is beyond the scope of this blog post but rights clearance is briefly covered here (within the parallel context of permission for using quotes) andobtaining permission is the entire subject matter of >The Permission Seeker’s Guide Through the Legal Jungle .
21. Can the photos and recipes from vintage recipe pamphlets published by food manufactures be used without permission? What if they were published prior to 1923? If the photos and recipes are copyright protected, you need permission or an exception. (See Principle Five) For United States purposes, works published prior to 1923 are in the public domain and are not protected by copyright. There might still be privacy and publicity rights related to the use of the photos if the photos depict people.
TAKING ACTION AGAINST INFRINGERS
22. What can we do if it's not a US based company that infringes? This question was prompted by my description of sending a take-down letter per the Digital Millennium Copyright Act (DMCA) in the event your content is being infringed online. For copyright infringement. The DMCA is effective in taking down content that is hosted by an interactive service provider subject to United States federal law. If the infringer has no contacts with the United States, options include filing a lawsuit in a country in which the infringer does have contacts (an expensive proposition so there needs to be a significant amount at stake for most plaintiffs to take this route.)
23. I've had journalists take my quotes from my website and online interviews previously done with other publications and use them in new stories. Is the journalist committing copyright infringement? If the text on your website is copyright-protected and the journalist’s use does not qualify as a fair use or other exception to copyright protection, the journalist’s use of your material without your permission is copyright infringement. A journalist’s quoting from a website in a relevant news article is a good candidate for a permissible fair use of a quote.
OTHER QUESTIONS – TRADEMARK, PATENT, CANADIAN LAW
24. Is it worth suing over trademark infringement due to cost of filing and pursuing one? The answer to that question has many variables such as the value of the infringed material/trademark, the likelihood of a positive outcome, the defendant’s ability to pay monetary damages, etcetera. While I cannot respond to your question with a yes or a no, I can confirm that pursuing a lawsuit can be costly.
25. When does a patent have to be filed after the item is published? For United States patent protection, there is a one year period after the first public disclosure or offer for sale of an invention by an inventor during which a patent application must be filed. However, there is much nuance regarding what actions trigger the one-year clock and how such public disclosure impacts the ability to obtain foreign patent registration.
26. Do these copyright laws address both US and Canadian law - or is there significant variance between countries? My comments during the webinar and in this blog post address United States law only. I cannot address Canadian law. I invite any Canadian legal professionals who drop by the blog to share any insights in the comment section below on Canadian law impacting recipe protection.
27. Terrific content, Joy! I learned more from you in 5 minutes than I did in an hour-long consultation with a local Intellectual Property attorney! Thanks!
28. Will we be able to get a copy of the presentation? The International Association of Culinary Professionals will make a recording of the webinar presentation available to IACP members through the IACP Speaker Series Archive .
Source : https://www.lexology.com/library/detail.aspx?g=ee8ca23d-bb18-46c8-b988-22bdb4dcbf97