Recipes are not protected under copyright law
August 27, 2001
By JOE O'CONNELL, cbbqa past President
From time to time, the barbecue community discusses the same
questions about copyright law. Can a recipe be copyrighted? Can a
team's name? This will answer some of these questions with
authoritative citations.
Disclaimer (the fine print):
This article does not present legal advice. If you have a legal
question, then you must consult a qualified attorney.
Recipes
A recipe cannot be copyrighted! Period.
The textual descriptions that may be in a recipe, if they are
creative and original, may be protected by copyright. Similarly, any
accompanying photographs and illustrations are protected by copyright.
But the recipe itself cannot be protected by copyright.
Section 102 of the Copyright Act provides that
Copyright protection subsists, in accordance with this title, in
original works of authorship . . . . 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.
Act § 102.
The courts have held uniformly that this provision means that the
literary expression of a recipe but not the recipe itself can be
copyrighted.
The Copyright Office itself maintains a FAQ which includes:
29. How do I protect my recipe?
[Answer] 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. See
FL 122.
"FL 122" refers to a "Form Letter". The Office often receives
inquiries and requests for information on the copyright of recipes, so
the office developed a form letter, which is
available online.
Here's an example:
Suppose that a recipe is in the normal format -- 2 teaspoons of
this, 3 tablespoons of that, diced, simmer for 5 minutes, etc. This
kind of recipe cannot be protected by copyright.
Now compare a paragraph from Smoky Hale's book, The Great
American Barbecue & Grilling Manual. Smoky's recipe for a fine
grilled steak, in the section entitled "In Pursuit of the Perfect
Steak" (page 75 ff), does not give the direction to turn the steak
when it no longer sticks to the grill. Instead, Smoky writes:
"Allow the meat grate to heat up. When the grill is right, wipe
the steaks dry and place the steaks carefully and firmly upon the
grill. Then leave them alone! Do not touch them, talk to them or
worry them in any way! Steaks know when they need to be turned and
will show you -- if you let them. When a ready steak meets the
heated grill, they seize each other with the intensity of
newlyweds. At the proper time, they will turn loose. Flip them
over with a spatula, not a fork. They will grab again. When they
turn loose the second time, the honeymoon is over and it's time to
get on with business." Id at 79.
"When a ready steak meets the heated grill, they seize each other
with the intensity of newlyweds." This certainly qualifies as an
original literary expression! Smoky's text is protected by copyright.
Again, a recipe (meaning the cooking ingredients, measurements and
directions) may not be protected by copyright. However, an original
literary expression within the recipe may be protected.
Recipe book
A recipe book may be protected by copyright. A separate section of
the Copyright Act provides specifically that compilations (like a book
of recipes) may be protected by copyright, even if no single recipe may
be protected. The Act states, in relevant part:
The copyright in a compilation or derivative work extends only to
the material contributed by the author of such work, as
distinguished from the preexisting material employed in the work,
and does not imply any exclusive right in the preexisting material.
The copyright in such work is independent of, and does not affect or
enlarge the scope, duration, ownership, or subsistence of, any
copyright protection in the preexisting material.
Act § 103.
If a group of non-copyrightable recipes is collected ("compiled")
into a book, then the compilation is protected. However, none of the
individual recipes would be protected merely because the compilation is
protected. Therefore, if a group of recipes is compiled together in a
book or on a website, then the author is entitled to copyright
protection for the compilation as a whole. However, this does not
extend to the protection of any single recipe.
This is not to say, of course, that a single recipe contained in a
compilation is not protected. If that recipe itself contains an
original literary expression, then the text of that expression (but not
the cooking ingredients, measurements and directions) may be protected.
How long?
How long does a copyright last?
For example, Charles Ranhofer first published his great treatise,
The Epicurean, in 1894. Is it still protected by copyright,
or may anyone copy it, put some or all of it on the website, or
reprint and sell it without paying any royalties? (For more on
Ranhofer, see the webpage about
Delmonico's.)
The answer used to be easy, but not any more. A general (but not
entirely accurate) summary is described in the
Copyright Office FAQ, Answer 46:
- For works created after January 1, 1978, copyright
protection will endure for the life of the author plus an
additional 70 years. In the case of a joint work, the term
lasts for 70 years after the last surviving author’s death. For
anonymous and pseudonymous works and works made for hire, the
term will be 95 years from the year of first publication or 120
years from the year of creation, whichever expires first;
- For works created but not published or registered before
January 1, 1978, the term endures for life of the author plus 70
years, but in no case will expire earlier than December 31,
2002. If the work is published before December 31, 2002, the
term will not expire before December 31, 2047;
- For pre-1978 works still in their original or renewal term
of copyright, the total term is extended to 95 years from the
date that copyright was originally secured. For further
information see
Circular 15a.
Id.
Note:
Circular 15a is a Copyright Office publication in PDF format.
Trade secret
Since food producers cannot protect their recipes from being copied,
they use the law of "trade secrets" to protect them. This means simply
that the producers go to great lengths to keep their recipes secret from
their competitors and from the general public. If a business acts in a
reasonably prudent manner to protect its business ("trade") secrets --
including not just recipes but also customer lists, price lists, and
similar business information of a valuable and confidential nature --
then the law will extend legal protection to prevent the disclosure or
use of such information.
Consider the Coca-Cola recipe. It is said that only two people
in the world know the actual recipe. The Coca-Cola syrup and
bottling procedures are designed so that no single person knows the
entire recipe. Yet, if a disgruntled former employee threatened to
disclose the recipe to the public, the company could obtain a court
order prohibiting the disclosure.
Of course, if the former employee simply emailed the recipe to
the world, then the court order would be useless, which is the point
of the company having very strong trade secret policies and
procedures.
Trade secrets are completely different from copyright protection, but
they often provide similar protection.
Assume that Tom tries to closely guard his recipe for his world
famous barbecue sauce. Tom uses reasonable protection of his recipe
and has his employees (including his secretary, Conrad) sign
standard-form Confidentiality Agreements.
Assume, however, that Tom's archrival competitor hires away
Conrad, who give the recipe to the competitor, and the competitor
plans to start selling a similar barbecue sauce.
In this case, because Conrad and the competitor have engaged in
"unfair trade practices" and violated Tom's trade secrets, Tom has
the right to sue both Conrad and the competitor to stop them from
using the recipe and from disclosing it to anyone else.
Finally, it may be noted that a work may be entitled to both
copyright protection and trade secret protection. Prior to 1978, there
was some doubt on this point as to some types of works (primarily
computer programs), but the 1978 Copyright Act eliminated this concern
and doubt. See
Oppedahl.
Name
A name may not be protected by copyright. This includes the name of
a recipe, a book, a contest, or a team. Barbecue team names cannot be
protected by copyright law. See FAQ 43.
Note, however, a few teams may be eligible to have their team names
protected by either federal or state trademark law. The major
requirement here is that the team must be conducting a trade or
business.
Non-legal note: Because all barbecue teams --
even those which are not caterers, restaurateurs or "professionals"
-- compete in contests for money, any team can claim that it is
engaged in a trade or business and thus register for trademark
protection. Consult an attorney for legal advice.
Similarly, the name of a commercial product or service may be
protected under federal and/or state law.
Copyright myths
Here are some commonly held myths about copyright, from the
website of Brad Templeton. These are myths and hence wrong!
- If the work does not display the copyright notice, it is not
copyrighted.
- If a copy is given away without charge, there is no
copyright violation.
- If the work (like a message) is posted to a mailing list or
newsgroup, then it is not protected by copyright and is in the
public domain.
- If the author (copyright holder) does not defend the
copyright, then it is lost.
- A name can -- such as a barbecue team's name, or a contest's
name -- can be protected by copyright.
- A recipient of an email has the right to resend or forward
it to others, to put it on a website, and to include it in a
book or FAQ.
For more information about these myths, see the
website of Brad Templeton.
Finally, another commonly held myth is that anyone who sees a story
or picture that is "all over the net" has the right to copy it. This is
wrong. Copying a work does not affect its copyright status. In other
words, just because everyone is infringing by copying a work does not
give anyone the right to do so.
Citations:
Related Resources:
|
|