The Copyright War on Recipes in the Kitchen
Photo by Sincerely Media on Unsplash
For the past 200 years, a war has raged on behind the scenes of those food-stained cookbooks and recipe-filled notecards in your mother’s kitchen. That war is the dispute over copyright protection.
Are Recipes Covered by Copyright Law?
The Copyright Act § 102(a) was enacted in 1976 to protect “original works of authorship fixed in any tangible medium of expression[.]” As insinuated in Alcatel USA, Inc. v. DGI Technologies, Inc., to have a claim for copyright infringement, an individual must use copyrighted material for a work of his or her own, and that own work must have a “substantial similarity” to the copyrighted material. The protected categories within this act include: “(1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.”
Notably, these categories do not explicitly include recipes, cookbooks, or other culinary works. Used as a guidepost, this list exemplifies but does not limit potential protected classes of copyrightable materials. Although not expressly mentioned in this list, this does not mean that recipes are wholly excluded. A recipe is defined as “a set of instructions for making something from various ingredients.”
In regards to recipes, the U.S. Copyright Office has gone into further detail about copyright protection for recipes with the statement, “A mere listing of ingredients is not protected under copyright law. 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 collection of recipes as in a cookbook, there may be a basis for copyright protection.” This statement alone has been the core of much litigation to understand the boundaries of copyright protection for recipes.
The History of Recipe Copyright Dates Back to the 1800s and Continues to Change through the Modern Day
As early as 1892, the limitations of common law recipe copyright law were litigated. In Belford, Clarke & Co. v. Scribner, a woman entered into a copyright agreement with a publisher for a book about household activities like cleaning, pickling, baking, and cooking. Publishers outside of the agreement then published the book without permission from the woman. The Supreme Court held that when entire copyrighted works, such as recipe books, are reproduced for profit, there is a case for recourse.
Publications Int’l, Ltd. v. Meredith Corp is a case expanding on recourse for copyright infringement. Here, the plaintiff had a collective copyright within a magazine for recipes using yogurt. The defendant published articles poaching individual recipes from this magazine. The newly published recipes only changed a few small details from the original recipes before they were published, such as a slightly smaller amount of sugar or bake time. Even with these small changes, the titles and final result of the original recipe and copied recipe were constructively the same. The court held that, even though the recipes seemed to be copied straight from the magazine, the individual recipes within the magazine were not protected by copyright. Although the full collection of recipes was protected by copyright, the individual recipes lacked an artistic element, such as a narrative by the author, to protect them with copyright. Therefore, while the collection of copyrighted recipes could not be copied without the author’s permission, the individual recipes within the collection could be.
Once a recipe copyright has been established through the U.S. Copyright Office’s procedure, it is also protected from use in works not about recipes. In Marcus v. Rowley, a teacher used a copyrighted recipe in a classroom activity booklet. The court stated that copyrighted recipes that were used in classroom activities were still protected under copyright. This suggests that copyright protection over recipes, while limited to the type of recipe it will protect, still enjoys the same protections as other copyrighted materials.
How to Protect a Recipe Through Copyright
From analyzing both the history of legislation and court decisions concerning copyright law, there are discernable ways to protect recipes.
(1) Directly from the U.S. Copyright Office, make sure to include “substantial literary expression in the form of an explanation or directions.” As seen through case law, the definitions of the terms used by the U.S. Copyright Office may be subject to litigation, but the Office’s terms allow for the possibility of copyright protection for recipes.
(2) To achieve substantial literary expression with a recipe, create a narrative or add your own voice to the work itself. Recipes that include exclamatory phrases, such as “[g]reat with meats!” or “[h]eat oil in heavy skillet. Add sugar and let it brown and bubble. (This is the secret to the unique taste!)” have been held to add enough of an artistic touch. Literary expression can also be achieved by adding personal touches to the recipe itself, such as personal photography of the completed dish or formatting choices with the font and headings.
(3) Publishing a recipe in a complete work, such as a cookbook with multiple recipes, is another way to protect through copyright. While this option will protect the complete collection of recipes as a whole, there are limitations to its protection. If the individual recipes do not have substantial literary expression within them, they will not be protected by copyright. To bypass this limitation, add a literary expression to each recipe either as a narrative across the complete collection or to each individual recipe.
(4) Additional publication of a copyright notice can be used to increase awareness of the copyright protection in place for publishing platforms that may lack that awareness otherwise. For example, on a blog or website, a copyright notice can be published at the top of the webpage. A link suggesting to click on it for more information on how to get permission to use the recipe offers even more accessibility to the page’s viewer. Podcasts and videos discussing copyrighted recipes may mention copyright protection before discussing the recipe itself. In posting the copyright notice in a clear place for each viewer to see, there is a higher probability that recipes will be protected.
Is Copyright the Only Way to Protect a Recipe Moving Forward?
While the war on recipe copyright protection continues today, there are ways to protect culinary artistic creations through copyright laws, as mentioned above. However, copyright laws, though helpful for larger works such as cookbooks and websites, may not be as accessible to those who create their culinary works through other individual platforms, such as food blogs, videos, and podcasts. Social media outlets create inclusive communities to build networks both to share recipes and also to copy recipes without giving credit where it is duly earned. In order to combat this, it may be up to those communities to create a shared space of respect and appreciation without relying on the legal system. As legislation and court systems are slow to change, it is up to those within the culinary community to give credit to the individuals who create unique expressions through their recipes.
