Copyright Laws

[John DePaula]

Okay, folks, I'm looking for a little guidance here concerning copyright laws. I really really want to do the ethical and legally correct thing, so I'm asking.

Recently, someone requested that I share a recipe for something that incorporated her product: hazelnuts. This recipe was to be posted on her web site. I worked on an adaptation of a recipe by M. Pierre Herme. The pertinent facts are:

1) I attributed my version as a recipe adapted from one by M. Herme.

2) My recipe was not a copy of his. There were changes to the ingredients and method, but I concede that the inspiration was a recipe by M. Herme.

At what point does it become "my recipe" so that I can put my name to it?

By the way, since there was a question about this we decided NOT to publish the recipe.

Thanks for your input.

[snowangel]

John, I'll start this by pointing you to the RecipeGullet Copyright and Use Policy. It's a good starting point for discussion.

[Chris Amirault]

Here's what the U. S. Copyright Office has to say on the matter:

Mere listings of ingredients as in recipes, formulas, compounds or prescriptions are not subject to copyright protection. 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 combination of recipes, as in a cookbook, there may be a basis for copyright protection.

[Sugarella]

2) My recipe was not a copy of his.  There were changes to the ingredients and method

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So it's your recipe. So long as you change at least one ingredient, or the amount of an ingredient, and of course all of the directions are your own writing and there's no plagiarism, it's now your recipe.

[godito]

2) My recipe was not a copy of his.  There were changes to the ingredients and method

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So it's your recipe. So long as you change at least one ingredient, or the amount of an ingredient, and of course all of the directions are your own writing and there's no plagiarism, it's now your recipe.

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And that´s exactly the point. It's your recipe as long as you dont copy it from someone else. Just by adding, say, a teaspoon of sugar to a dressing that originally had none, then you should have no copyright issues. However, the same also applies when somebody adds a dash of mustard powder to that same dressing and calls it something else.

[John DePaula]

Thanks, everyone. I thought that was the case but just wanted to be sure. Ciao.

[Grub]

Hang on -- I'm not sure you got that right...

If the US Copyright Office makes that distinction between the ingredient list and the text that describes the preparation of the dish (the latter bing copyrightable, the former not), you do NOT need to add or subtract an ingredient in order to "make it yours."

You can simply take a recipe's list of ingredients, word by word -- as long as you write your own description of the preparation.

Don't get me wrong here, because I think the decent thing to do, is to quote your inspiration/source, of course. I'm just saying, strictly speaking, the list of ingredients is not copyrightable...

[slkinsey]

I think there is a distinction between to be made between copyright law and what makes a recipe "yours."

First, let's talk about copyright law. You can't copyright an idea, so the ingredient list and the actual process of making a dish are not copyrightable. Grub is right: you don't need to change a single ingredient. This is because copyright law was not designed to protect that kind of intellectual property. What you can copyright are your specific words, distinctive prose, characteristic descriptions, etc. -- in other words, your writing, not the idea. If you want intellectual property protection for the actual process of making a recipe, you must apply for a patent for "System and Method for Making Braised Duck Legs with Green Olives" or whatever. In this case, you would be claiming that your dish is an "invention." While the patent system is really set up for gizmo-type inventions, it is possible to patent a process for making something (like a better, cheaper or more efficient way to synthesize a chemical). Um... good luck with that.

The long and short of this is that, as long as someone rewrites the process part of a recipe in their own words, recipes have no intellectual property protection under the law.

So... that's the law. What about ethics? That's a different story. By and large, I think most of us would agree that if you copy someone else's recipe, even if you change the prose to an extent that you are not subject to copyright law, it's still that person's recipe. The ethical thing to do is give that person some credit. Of course, there does come a point where the recipe has changed enough that it really becomes your recipe rather than the original person's recipe. It's up to you to decide how much the recipe has to change before it becomes entirely yours. Some of this may depend on the nature of the original recipe.

For example, last night I had a wonderful dish based on a Vongerichten recipe. It was halibut poached in fennel juice with braised fennel and fennel seeds. Now, my friend could change Vongerichten's recipe around a bit (and has), but it's hard to imagine that "halibut with three fennels" could change so radically that it wouldn't still be clearly derivative of Vongerichten's, because it's a fairly unique idea. To make another example, I have been making a dish of "turkey two ways" for Thanksgiving every year, where I braise the leg meat in red wine and port and cook the breasts separately to temperature. The inspiration for that idea came from a recipe by Eric Ripert that was printed in the NY Times Magazine, but by now my recipe has diverged so radically from his that I feel comfortable claiming it as my own. I don't hesitate to say where the inspiration came from, and if I were writing a cookbook I would probably make some mention of that in the description of the dish. But I don't feel it is absolutely necessary to say "adapted from" or "inspired by" Eric Ripert every time I mention it. Other people in the same situation may feel differently. It's an ethical decision everyone must make for themselves.

[Anna N]

I think there is a distinction between to be made between copyright law and what makes a recipe "yours."

....

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Sam, I wish I could have expressed it so well.

[Sugarella]

The long and short of this is that, as long as someone rewrites the process part of a recipe in their own words, recipes have no intellectual property protection under the law.

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I agree with all of what you've said except this point. You could not, for example, rewrite all of the text in an entire cookbook without changing any of the recipes and claim the entire work as your own. Obviously you've just copied the book and paraphrased in that case.

But that's besides the point for John DePaula's example; he's only dealing with one recipe in this case. My point to him was that, because he had changed at least one ingredient, the recipe is no longer Pierre Herme's; therefore by default it's his.

Can we use an exact ingredient list and write our own directions to avoid copyright infringement? Of course, that's the law. Can we claim it as our recipe? No, it's still the same recipe as in the book; it's still so-and-so's recipe. Is there any legal fallout for claiming it as our recipe? No.....

[Fat Guy]

The long and short of this is that, as long as someone rewrites the process part of a recipe in their own words, recipes have no intellectual property protection under the law.

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I agree with all of what you've said except this point. You could not, for example, rewrite all of the text in an entire cookbook without changing any of the recipes and claim the entire work as your own. Obviously you've just copied the book and paraphrased in that case.

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That's because a unique collection of otherwise non-copyrightable material can become copyrightable by virtue of the uniqueness of the collection. The individual elements, however, are still not copyrightable.

[Fat Guy]

The important distinction, which tends to get lost in discussions such as this one, is between a copyright violation and an act of plagiarism.

Plagiarism is an issue of ethics. It's primarily about attribution.

Copyright is an issue of property. It's primarily about ownership.

When you claim somebody else's words or ideas as your own, you've committed an act of plagiarism. It doesn't matter if you paraphrase or take other not-so-clever action to disguise what you're doing. It's still plagiarism.

When you reproduce somebody else's words extensively without permission (or subject to other legal exceptions such as fair use in journalistic coverage), you've likely committed a copyright violation. You can cite and attribute all you want, but you're still committing a copyright violation.

You can of course commit both acts together: you can reproduce someone else's work extensively without permission (copyright violation) and fail to attribute it (plagiarism). And you can commit plagiarism where no copyright exists, such as with words in the public domain (e.g., the plays of Shakespeare).

[John DePaula]

Hang on -- I'm not sure you got that right...

If the US Copyright Office makes that distinction between the ingredient list and the text that describes the preparation of the dish (the latter bing copyrightable, the former not), you do NOT need to add or subtract an ingredient in order to "make it yours."

You can simply take a recipe's list of ingredients, word by word -- as long as you write your own description of the preparation.

Don't get me wrong here, because I think the decent thing to do, is to quote your inspiration/source, of course. I'm just saying, strictly speaking, the list of ingredients is not copyrightable...

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I think I understand... And I agree with you about "the decent thing to do" since I did say my inspriation for the recipe was M. Herme. Thanks again, everyone.

[John DePaula]

The important distinction, which tends to get lost in discussions such as this one, is between a copyright violation and an act of plagiarism.

Plagiarism is an issue of ethics. It's primarily about attribution.

Copyright is an issue of property. It's primarily about ownership.

When you claim somebody else's words or ideas as your own, you've committed an act of plagiarism. It doesn't matter if you paraphrase or take other not-so-clever action to disguise what you're doing. It's still plagiarism.

When you reproduce somebody else's words extensively without permission (or subject to other legal exceptions such as fair use in journalistic coverage), you've likely committed a copyright violation. You can cite and attribute all you want, but you're still committing a copyright violation.

You can of course commit both acts together: you can reproduce someone else's work extensively without permission (copyright violation) and fail to attribute it (plagiarism). And you can commit plagiarism where no copyright exists, such as with words in the public domain (e.g., the plays of Shakespeare).

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Ok... so I hate to be super-dense here but bottom-line it for me: In your opinion, would I be doing anything wrong, legally or ethically, by printing a recipe for which I had altered the ingredients and method/description AND also inculded an attribution of the inspriation?

[Fat Guy]

In my opinion, you would be doing absolutely nothing wrong. Indeed, you would be an upstanding global citizen of recipe attribution.

[slkinsey]

Look at the examples and compare to your own...

Did you change the distinctive prose in the instructions to your own words? If yes, then it is not a copyright violation.

Did you attribute the inspiration? If yes, then it is not plagiarism.

It should be pointed out with respect to plagiarism that the standards and expectations are different depending on the field. Academics and scientists are generally very strict about attributions. If someone helped you even by proofreading your paper, you are often expected to indicate that in a footnote. So, for example, if you were writing an academic paper about a recipe for braised duck that was inspired by a dish you had at ADNY, you would be expected to cite Alain Ducasse in your references even though the dish had evolved far beyond the original inspiration. Similarly, if you had developed this dish in your restaurant with the assistance of your sous chef and other personnel, they would expect to be listed as authors on the paper (it would be "DePaula, et al."). I could go on in this vein, but suffice it to say that the realm of recipe attribution is considerably less strict in this area. All this is to say that, if a recipe you have developed was originally inspired by an M. Herme recipe but has since evolved to a point that it is no longer clearly a derivative work, I don't see that you have any ethical obligation to give attribution to M. Herme. It is not plagiarism, because you are not passing someone's work off as your own, and at some level everything is inspired by something. Schubert didn't have an ethical obligation to attribute Die Forelle by writing, "piano part inspired by the burbling brook near Steyr."

[Ptipois]

Thank God you can't copyright a recipe. If it were the case someone would have copyrighted blanquette de veau or kouign-amann long ago and the whole world of cooking would be a nightmare.

[Chris Amirault]

Several of the issues raised in this thread are now being discussed in the Daily Gullet's "Sincerest Form" article.

[eipi10]

I agree with the answers in this thread. However, be careful about copying sets of recipes, as opposed to individual recipes.