Can recipes be copyrighted? The answer

[gfron1]

I say "the answer," but you know how legal stuff goes...

 

ARTICLE

 

Summary

 

So copyright can protect the unique creative expression associated with a recipe. If I write a recipe in such a way that actual creativity is involved – let’s say I wrote it as a poem – that may be protected, but the actual ingredients, measurements, and cooking processes would not be. Likewise, the particular layout and composition of a compilation of recipes (also known as a cookbook) may also be protected, but the underlying recipes would not.

 

 

 

[Honkman]

This issue is often discussed regarding foodblogs and their use of recipes (from books or other sources) - writing down the ingredients is no problem, everything else you shouldn't just repeat what is already published.

[gfron1]

That's the ethical answer, but according to the lawyer, as I understand his analysis, you actually can copy the steps too.

[Tri2Cook]

Yeah, "ingredients, measurements and cooking processes" pretty much covers it. The rest, the "creative expression", while sometimes useful or entertaining, is just fluff as far as cooking the dish is concerned. What matters (for those concerned) isn't protected. What's protected doesn't matter because most places you're going to see it aren't going to be doing a word-for-word of the book anyway. They're just going to insert the recipe into their own "creative expression".

[GlorifiedRice]

Well, Ive seen  many FoodTv chefs use the same recipes that are all over the net as their own.

[cdh]

Just remember the rule:  You can't copyright a fact.  You can copyright a description of a fact.

 

Saying x + y + z processed through methods 1, 2, and 3 produces something worth eating is a fact.  You can't own that through copyright. (Maybe you can patent it if it is really out of the ordinary.)

 

Describing the way you source x y and z and do 1 2 and 3 will get you a copyright in the descriptions of how, but not in the what that you're doing.

[djyee100]

Well, I spent more time than I wanted to this evening reading some case law, a law review note about recipe copyright, and the Registrar of Copyright's description of recipe copyright. My curiosity got the better of me, it's now 10:45PM PST, and I haven't had any dinner.

 

The courts agree that recipes are not per se copyrightable or uncopyrightable. They practically use those same words. (See Publications International, Ltd. v. Meredith Corp., 88 F.3d 473 (7th Cir.1996); Barbour v. Head, 178 F. Supp. 2d 758, 764 (S.D. Tex. 2001)) Yeah, I love it. More of this and the issue will be kicked upstairs for the U.S. Supreme Court to deal with.

 

The standard seems to be whether the recipe is written in a rote or functional style, or in an expressive, artistic fashion. The artistic recipes are protected by copyright, the simple and functional recipes are not.

 

That analysis creates more problems than it solves, IMO. Do you feel comfortable judging if a recipe is "artistic" enough for copyright protection? Where's the workable objective standard? Any written material is the author's unique creative expression, even if it is more functional than "expressive."

 

The U.S. Supreme Court has not spoken about the copyrightability of individual recipes. Given today's environment of celebrity chefs' distinct creations, not to mention the endless copying of recipes on blogs, perhaps the time has come for a definitive rule.

 

A 2011 Note written for a law review at Vanderbilt Law School does a nice job of summarizing the current (murky) state of copyright as it applies to recipes. This was the most recent journal article on the subject I could find with a quick search.

http://www.jetlaw.org/wp-content/journal-pdfs/Lawrence_FINAL.pdf

 

If you hunger for more on this subject, you can read what the Registrar of Copyrights has to say.

http://www.copyright.gov/fls/fl122.html

 

For now, assume the writing of a particular recipe is copyrighted and protected if you want to stay out of trouble.

[cdh]

It is a pity that FatGuy did not live to see the day that a country did adopt his culinary copyright ideas.  Looks like Germany has done it. http://petapixel.com/2015/08/14/photos-of-your-meal-could-be-copyright-infringement-in-germany/ 

 

I still think it is wrongheaded and counterproductive... but there it is.

[JoNorvelleWalker]

But if one paid for the dish?

[cdh]

Fine question.  I've not found a better English explanation of the court ruling.  I really don't understand the implications to photographers, unless in Germany it is infringement to photograph a sculpture protected by copyright.  If the composition on the plate is protectable, it is more like a sculpture than anything else... if sculptures are protected from photographers, then it makes some sense.  I do wonder how they deal with the artist's "moral rights" to prevent destruction or defacement of a sculpture in an edible medium.

[pep.]

Fine question.  I've not found a better English explanation of the court ruling.  I really don't understand the implications to photographers, unless in Germany it is infringement to photograph a sculpture protected by copyright.  If the composition on the plate is protectable, it is more like a sculpture than anything else... if sculptures are protected from photographers, then it makes some sense.  I do wonder how they deal with the artist's "moral rights" to prevent destruction or defacement of a sculpture in an edible medium.

 

There is no court ruling regarding food nor recipes. There was a ruling that basically said work of applied art ("Angewandte Kunst", not sure if there is a legal term for that in English) was afforded similar protection to one of the fine arts. Previously, there were very different thresholds of originality ("Schöpfungshöhe"). AFAIK the current slew of articles on the topic is purely a media bubble (everyone is writing about it because it must be important because everyone is writing about it).

[Norm Matthews]

I would think that while it is possible to copyright a photograph, it would be unlikely to be able to copyright the subject of the photograph. 

[cdh]

I would think that while it is possible to copyright a photograph, it would be unlikely to be able to copyright the subject of the photograph. 

Sadly not the case.  See http://www.sculpture.org/documents/scmag05/may_05/webspecs/grant.shtml