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Copyrighting Recipes

Introduction

The question of copyrighting recipes has not been firmly decided by the courts. Certainly, publishers seek copyright protection for books on cooking, as they do on any other subject, and they have often gone after other publishers or individuals whom they feel have infringed on their rights in a published cookbook. How much copyright law protects recipes within such books is a matter of some dispute. That is because a recipe is distinct from the typical sorts of writing and expression the copyright law has historically protected. Whether a given author's recipes are protected by copyright will typically depend on the facts of each case. Facts that are of particular importance are the manner in which the author has presented the recipe and the other information included with it.

Recipes as Creative Works

Cooking is a skill and an art, which, practiced well, makes life more enjoyable. Although technique is important with some dishes, in many cases a recipe alone is sufficient to allow a skilled cook to prepare almost any dish. Because delicious foods are in demand, persons with good recipes may well consider publishing these in hopes of profiting from their talents. But cooks with a knack to take up pen or keyboard must beware. The protections available to recipes under copyright law are limited at best.

Copyright law protects original, creative expressions fixed in a tangible medium. These standards are not especially high. A run-of-the-mill story with stereotypical characters and a predictable ending will probably be creative and original enough, as long as it isn't copied or derived from an existing work. And the requirement that the expression be fixed in a tangible medium applies to electronic copies and even data stored in computer random access memory (RAM), which disappears once the computer is switched off. Courts are inclined to hold, however, that an individual recipe lacks sufficient creativity to qualify for copyright. Under this view, a recipe is really a process for creating some edible product, and not a creative expression of the sort copyright law is designed to protect.

The scope of copyright law is set forth in section 102 of the Copyright Act of 1976. Part (a) of this section lists 8 categories of works that are appropriate for copyright. These include literary works; musical works and their words; dramatic works and their music; pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. A typical book would be a literary work and may also contain copyrighted pictures. But a recipe is not a literary work according to the typical use of that term, nor does it fit within any of the other categories.

For recipes, courts instead have looked at part (b) of section 102. This section limits part (a), stating, "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." In a case several courts have followed, the Sixth Circuit Court of Appeals refused to stop a publisher from selling a cookbook containing recipes that were taken from another publisher's book. Although this court stopped short of saying that a recipe could never be copyrighted, it reasoned that a recipe was more like the exceptions to copyright in part 102(b) of the copyright act, than it was to the covered expressions in 102(a).

The Sixth Circuit noted that some courts have approved of copyright protection for recipes in certain circumstances. In a case before the U.S. Supreme Court, a publisher had simply taken another publisher's book containing recipes, copied it with only minimal changes, and sold it with a new cover as its own publication. That case, however, was from the 19th Century, and involved the unauthorized copying of far more than one or more recipes. Instead, the infringing publisher had copied everything the author wrote, including not only recipes, but suggestions for how to plan and prepare meals, how to serve them, and other tips involving dining and entertaining.

Another older case, from 1924, upheld the copyright protection of a manufacturer's product labels, which included recipes involving the manufacturer's "fruit nectars." The manufacturer had applied for patent protection for the labels, and they included a copyright notice. While part of the purpose of the labels was for advertising, the court also found expression protected by copyright. It called the recipes "original compositions" that served "to advance the culinary art." Although this case seems to support copyright protection for recipes, later courts have read it to apply to collections of recipes, rather than to each recipe within the collection.

To what extent compilations of recipes are protected is also unclear. A compilation of facts can have copyright protection, even though the individual facts themselves cannot. But in the case of a compilation, the ordering of the factual information is what is protected, rather than the facts themselves. Thus, while the author of a collection of recipes would likely be protected against someone else removing the cover, copying the recipes, and sticking a new cover on them, the recipes would not be protected from all use by others. A reviewing court would be interested in how much creative expression the author included in addition to, and in presenting, the recipes; it would then look at how much of this information the other author or publisher used, and how closely it resembled the original work.

The short answer is that a single recipe is unlikely to receive much, if any, copyright protection, and a collection of recipes will be protected in its creative aspects, but less protected as to the specific ingredients and steps required to prepare a given dish. An author or cook considering publishing his or her recipes should approach the subject carefully.

Conclusion

Recipes are unusual in the copyright context. Although they are written down by an author, and may reflect great creativity on the part of a cook, courts view recipes more as statements of a process than as literary works. The distinction is not necessarily a clear one. A cook might rightly ask, if the choreography of a dance can be copyrighted, why can't the steps for preparing a meal? Both have an outcome that may be considered art. Yet a court might hesitate to follow this reasoning for fear that its decision would be used to support the copyright of any set of instructions, which the copyright act rejects. Cooks who wish to record their recipes, therefore, face a bit of a quandary. While a good cookbook can produce a nice return for its author, other publishers and authors may make some use of its recipes. In order to secure the most protection for published recipes, an author should consider consultation with a lawyer experienced in copyright issues.

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