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Copyrights and Recipes

08/07/06 @ 05:37:13 am, by Kate Hopkins Email 2039 views • Categories: Writing

I see that recipes and copyrights have been brought up again, so I thought I would give my basic spiel which I hope explains it all. I think I've covered this before, but I'm too lazy to look it up in the archives.

Lists of ingredients are not protected by copyright. Explanation of techniques are not restricted either, as a rule. Literary license in the form of prose is, however, guarded by copyright. Let me give an example.

Part I:

I like peanut butter and jelly sandwiches, as they bring a bright smile to my face. They are especially good with a cold glass of milk.

Part II:

  • 2 slices of white bread
  • 3 Tablespoons peanut butter
  • 2 Tablespoons strawberry Jelly

Part III:

With a knife, spread the peanut butter on one slice of bread. With the same knife, spread the jelly on the other side of bread. Press together the two slices of bread, with the peanut butter and jelly facing each other.

Here's the deal. Part I is under copyright. An entity cannot reproduce Part I (even as bad as it is) without attribution.

Part II is not protected by copyright. Period. Underline three times.

Part III is where it gets a bit iffy. In the case of the above, Part III is most likely not sheltered by copyright. There's not much in the form of literary expression. Instead, it's essentially a formula that uses the list of ingredients. Such formulas are not covered by copyright.

However, if there was a fair amount of prose interspersed within the formula, then it can be protected by copyright. If Part III was dressed up with memories of making the sandwiches, and tied together with a personal anecdote or two then no one could legally use it without permission.


Comments, Pingbacks:

Comment from: Tara C [Member] Email · http://www.dementedkitty.com
I edited a bit for grammar. Usually I can stomach how things are written here. The content is worth it and this is a blog. Allowances for personal style are expected. "Copyritable" stopped me cold though.
PermalinkPermalink 08/07/06 @ 06:35
Comment from: Sarah [Visitor] · http://www.avenuefood.blogspot.com
It seems to me there's a huge difference between a "recipe" for a PB&J and a more elaborate recipe from, say, Thomas Keller's French Laundry Cookbook, that, unlike the PB&J, is completely original. I work for a book publisher and the bulk of what our permissions department does is grant rights to use recipes from our cookbooks (and I don't think changing a few words around in the text frees one to appropriate other people's recipes with abandon).
PermalinkPermalink 08/07/06 @ 06:43
Comment from: Kate Hopkins [Member] Email · http://www.accidentalhedonist.com
Sarah,

As wodnerful as Keller's bookbook is, he does not own the rights to the ingredients and techniques used to make the food. Formula's can't be owned, only protected (for example, Coke's recipe).

He owns the right to the literary expression of the recipe, but not the recipe itself.

Copyright
PermalinkPermalink 08/07/06 @ 07:33
Comment from: Tara C [Member] Email · http://www.dementedkitty.com
The US Copyright Office gets down with this:

"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"


And:

"Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form. Copyright protection does not extend to names, titles, short phrases, ideas, systems, or methods."


When recipes are bound together then the whole book is protected. The ingredient lists and directions of individual recipes, with the exception of accompanying prose, are not protected under US copyright.
PermalinkPermalink 08/07/06 @ 08:05
Comment from: Sarah [Visitor] · http://www.avenuefood.blogspot.com
According to the government Web site regarding this issue, "a collection of recipes" such as a cookbook can be afforded copyright protection (http://www.copyright.gov/help/faq/faq-protect.html#recipe). It's not entirely clear, but wouldn't this extend to the individual recipes within the cookbook? It doesn't say anything about the recipes being exempted.

And this is a different issue, but what is the ethical thing to do when the recipe in question is clearly an original creation of someone else? Do you credit the source as a matter of course?
PermalinkPermalink 08/07/06 @ 08:13
Comment from: Kate Hopkins [Member] Email · http://www.accidentalhedonist.com
A book is not a recipe, even when that book is a collection of recipes.

So, yeah, the book cannot be reproduced, but the individual recipes can be, and here's the kicker, as long as any literary expression isn't copied.

Now ethics... ethics are a different matter. Personally, I try to give credit when credit is due.

That being said, there's a reason why governments (and it's not just the United States) don't protect formulas. Why sould chefs get special exemption?
PermalinkPermalink 08/07/06 @ 08:31
Comment from: Tara C [Member] Email · http://www.dementedkitty.com
I agree that something should be said here about the ethics of copying recipes. I think crediting a source is good practice regardless of the subject matter but especially if someone grabs a recipe, makes a few modifications, and wishes to pass it off as their own version.

Also, many recipes I've seen in food blogs are released under Creative Commons licenses. That means that someone is not only free to use it but they can reprint it so long as credit is given. I would love to see more works obtain the rights to an original recipe, print it first (and site source), go on about how the original was modified, and then list the new recipe with a few tips or photos.
PermalinkPermalink 08/07/06 @ 09:33
Comment from: Mike K [Visitor]
Kate, you mentioned Coke.

A recent article on Coke and Pepsi getting a toxic label in India because of the companies non-disclosure seems to reinforce that the companies trust no one with their recipes.
PermalinkPermalink 08/07/06 @ 11:36
Comment from: Kelly [Visitor] · http://www.celiacchicks.com
I've been wondering about this lately, since we originally didn't list recipes we reviewed, out of consideration for the author. I figured if I had a cookbook or magazine I would want people to buy the cookbook or magazine to get the recipes. When we review recipes some of our readers are motivated to buy the book, but some are left salivating wanting us to publish the recipe. Then again, one could reason that you are taking one small part of a book,the recipe, using it as an example while reviewing it, and drawing lots and lots of attention to the author's product leading to increased sales. I'm still not sure how I totally feel about this. If you slowly revealed every recipe in one book than that would be unfair, but one recipe here or there touting a beloved book seems comparable to a newspaper or magazine featuring a cookbook and including a recipe, which would be considered serious and eagerly sought after free advertising.
When it comes to magazines I guess you could figure that they post most recipes in them on their own websites so it's already public knowledge and you are giving direction and credit to the direct source.
PermalinkPermalink 08/07/06 @ 12:06
Comment from: Mithrandir [Visitor] · http://www.soundandfury.info/
This makes more sense when you realize that the series of steps to turn ingredients into finished product are covered by a different area of intellectual property law: patents.

There is such a thing as a "method" patent. It covers things like synthesizing drugs. It also covers things like making peanut butter and jelly sandwiches.

You can't patent peanut butter and jelly sandwiches because there is prior art. Furthermore, patents require full disclosure of the method in question and expire after 20 years or so.

This is why Coke doesn't patent their syrup: the patent would expire and suddenly anyone could make and sell their own cola using Coke's recipe. That's why you can buy cheap generic loratadine (Claratin). The patent expired, and generic drug companies fired up their production lines.

Coke, on the other hand, uses a third type of IP protection: trade secrets. So long as you make every possible effort to keep something secret, you can (to some extent) prosecute people who infringe on those secrets (reverse engineering the formula by chemical analysis, for example). And trade secrets never expire.

So by publishing his recipes without patenting them, no matter how good, Thomas Keller released his "methods" into the public domain. The text itself is still his though, and is protected. But you can write your own text to describe the same method he published, and post it on your blog. You could even use his recipes in your restaurant kitchen.
PermalinkPermalink 08/07/06 @ 12:30
Comment from: Kelly [Visitor] · http://www.celiacchicks.com
Mithrandir- Thanks for filling in the legal blanks! It all makes sense now.
PermalinkPermalink 08/07/06 @ 14:22
Comment from: David L [Visitor] · http://www.davidlebovitz.com
The other reason for giving credit, not normally mentioned, it that the 'story' behind the recipe is often as interesting (or more) than the recipe itself.

Finding inspiration in someone else's recipe can provide good writing material.

For example, "This cole slaw is really good with a hamburger."

versus

"This cole slaw, which I've adapted from Kate's corn syrup-free recipe. Through her informative web site, she offers tips on food safety as well as techniques for making the tastiest food imaginable. So you can enjoy her slaw alongside a beefburger, which would thrill Kate if it had been tested by the USDA first, to make sure you're getting the juiciest hamburger you've ever taken a bite out of with out a drop of guilt."

Not brilliant, but for a writer looking for inspiration, giving attribution to a recipe can provide a lots of material.
PermalinkPermalink 08/08/06 @ 00:11
Comment from: Mitsuko [Visitor] · http://mitsu.canalblog.com
To me, it's not that much a legal question. It's more about basic respect!
PermalinkPermalink 08/08/06 @ 03:36
Comment from: Sally [Visitor] · http://dart1121.blogspot.com
Kelly - That's exactly what Ivonne of Cream Puffs in Venice does. Each month she picks one of her many cookbooks and makes a few recipes from it. She lists the recipe, photos and any deviations she might have made from the original recipe. She also provides a link to purchase the cookbook at Amazon. I'll bet you anything that her posts drive up sales for those books she uses. So, go ahead - use a recipe now and again. It will definitely help the sale of the original item.

(Pardon me Ivonne for butting in here and blowing your horn! LOL)
PermalinkPermalink 08/09/06 @ 12:23
Comment from: Phillip [Visitor] · http://sugarwerks.myikonboard.com
Hello all. I am glad I ran across this conversation though however late I maybe for it. This is something that has always confused the hell outta me but after reading everyones comments I think I have the jest of this copyright thing down. First of all I knew that the ingredients could not be copyrighted thats a given. Secondly I knew the instructions could be or so I thought. So, what I am getting from this is unless there is some kind of history around the recipe or some special moment about it the instructions are not copyright either Am I correct in assuming this?
PermalinkPermalink 10/08/06 @ 05:31
Comment from: Steve Plotnicki [Visitor] · http://www.oad.typepad.com
I can't resist throwing my two cents in here. Copyright is dependant on the the type of use at question. For example, a list of ingredients would not normally qualify for copyright protection. But if someone were to write a poem that contained nothing but a list of ingredients, that would qualify for protection.There is that song about baseball called Van Lingo Mungo or something like that. The lyrics are simply a list of names of baseball players. And while a list of names would normally be excluded from copyright protection, strung together in a song the list qualifies for protection.
PermalinkPermalink 10/11/06 @ 19:23
Comment from: lilian beach [Visitor]
HELLO I AM LILIAN BEACH I AM INTERESTED IN BUYING THIS PRODUCT.
Cake qty 45
AND I WANT TO KNOW THAT TOTAL COST OF THE EACH PRODUCT AND I WANT TO KNOW IF IS AVALIABLE AND I WANT TO INFORM YOU THAT I WILL PAY BY CHEQUE AND U WILL SEND MY BALANCE BACK TO MY CLIENT IN ANOTHER COUNTRY IF YOU ARE INTERESTED MAIL ME BACK.
PermalinkPermalink 11/26/06 @ 11:47
Comment from: Amy Rosen [Visitor] · http://maranathanutbutters.com
I agree that Part III can be fairly gray. How can someone easily tell whether there's enough proprietary text to ensure copyright protection? For instance, suppose I wrote recipe instructions where I mentioned a wonderful new brand of peanut butter, such as Maranatha's No Stir Organic Peanut Butter, described how this brand comes in both creamy and crunchy varities, and suggested crunchy works better for this recipe. Does mentioning a particular brand yield copyright protection? How about my opinion about crunchy working better?
PermalinkPermalink 02/02/07 @ 12:02
Comment from: Carrie [Visitor] Email · http://bakersbakery.wordpress.com
Thanks so much for breaking this down for me. I *thought* I understood that cookbooks in their entirety are copyright protected, but not individual recipes.
There is a lot of conflicting information out there and it is easy to get confused about what is and isn't allowed.
As a food blogger, I do my best to be safe and ethical but simply giving credit where credit is do. I never intend to "steal" recipes or step on anyone's toes.
I would hope that if I did manage to step over "the line" someone would be kind enough to bring it to my attention before attacking me (as I have seen happen to other food bloggers).
Once again, thanks for spelling it out. The reassurance is helpful.
PermalinkPermalink 07/29/08 @ 10:05

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