Recipes and Copyright
Joyce Gemperlein, Special to the Washington Post, asked an important question last Wednsday that should be uppermost in the minds of most food bloggers: “Can a Recipe Be Stolen?”
Intellectual property issues are a hot topic in the public’s mind; lawsuits on music copyright and MP3 players have brought a great deal of attention to the question of what exactly is copyrighted material and how it can be used and distributed.
According to Gemperlein’s article, a group of high school students in Bethesda wanted to put together a fundraising cookbook to benefit cancer research last summer, but when they solicited recipes from family and friends, they ran into the spectre of copyright. Afraid to step on the toes of the originators of recipes such as Nestle’s Toll House Cookies, many potential contributors were reluctant to give out recipes that had originated in a cookbook, newspaper or magazine, even if it had been first used years ago and changed significantly in the hands of family cooks over time.
While I haven’t noticed food bloggers plagiarizing published recipes in the course of their blogs, it behooves us all to know the specific legalities as they pertain to recipe copyright. It is not only a legal issue, but a moral and ethical one as well; it is generally considered to be improper to present any sort of creative endeavor made by another as one’s own.
When it comes to the legalities of reprinting already published recipes, U.S. Copyright law is rather muddy, which leads to confusion among recipe writers, bloggers, online bbs management and kids putting together charity cookbooks. According to The Recipe Writer’s Handbook by Barbara Gibbs Ostmann and Jane L. Baker, copyright only protects the manner in which an idea is expressed; it does not protect the idea itself. Most legal scholars on the subject of copyright interpret this to mean that recipes themselves–the titles, the lists of ingredients and the procedures–are not actually subject to copyright, because they exist in the realm of ideas.
Most attorneys specializing in copyright, however state that the way in which the method of the recipe is written, with its exact wording, should be and is considered an original creative work of literature, and thus is copyrighted. As in all other literary creations, the copyright of the method of a recipe arises as soon as the recipe is written and/or published.
In short, while the list of ingredients of a given recipe cannot be copyrighted, the specific words and language used to describe how it is put together is copyrighted.
This means, that if one wished to republish a recipe verbatim from an already published work, one is required to obtain written permission from the copyright holder in order to do so.
However, the way in which I and many food bloggers handle the situation, is that we write the method of a recipe in our own words, changing it substantially as we go, so as to avoid violating copyright. In addition, most bloggers give credit for the origin of any recipe we use, even if it is altered in some way; I generally will use the words, “adapted from” or “inspired by” in the description of any recipe that I use that is not my own direct invention.
Here at The Paper Palate, we give full credit to the recipe’s author and publisher, and while we do not publish it verbatim, when we make changes or substitutions in the original recipe, we make note of it as we go along. We do not want to steal any recipe writer’s work; we want to test out their recipes, see how they work, and perhaps present alternative variations for our readers to try.
Not only is it a legally sound policy and ethically proper to acknowledge the origin of a recipe, it is of interest to foodies everywhere. A recipe is not just a list of ingredients or a copyrighted method; it is a story. Each one has a history, and most people like to know what that history is; if this were not the case, most food writers would be out of a job.
Cooking, even with a cookbook, food magazine or newspaper clipping in hand, is a creative process, and humans like nothing more than to take a peek into another person’s creativity and see how it works.
Here at The Paper Palate, we not only want to bring you the best recipes covered in the food press, properly acknowledged and documented, but we also want to give you a taste of how these recipes can be interpreted in the hands of another cook, while pointing out the good and the bad points of the recipe.
Otherwise, we’d just be giving you other people’s recipes to try, and what fun is there in that?
While technically “the way in which the method of the recipe is written, with its exact wording, should be and is considered an original creative work of literature,” the case law tends to be that where there are only so many distinct ways to write something, no single one of them can be protected by copyright.
The rationale behind this thinking is that copyright cannot be used to protect something that should only be protected by a patent. A patent is the only way to get a monopoly on a process. If you allow expression A of a process to be protected by copyright by person X, and expression B to be protected by person Y, and if there are only a finite number of possible expressions (say, 100) that are reasonably distinct and not ridiculous variations for variation’s sake, then you eventually wind up with the process being monopolized by the group of people who copyrighted the various expressions, which is not allowed.
The copyright case that all law students study in this area concerned the rules to a contest printed on the back of a cereal box. The food manufacturer was trying to prevent competitors from operating the same contest by claiming copyright infringement of the rules. They lost. Another similar case is the roller derby rules “short story” case.
If there is a distinctly literary and severable aspect to the recipe, that portion might be protected, but not the recipe instructions themselves. Severability is key: for instance, the design of the handles of Fiskars scissors and the design of typefaces cannot be protected by copyright, since the design and function cannot be readily separated.
The issue isn’t who would win in the end — the copier would win — but rather whether the copier would have to subsidize the legal expenses on the path to winning a harassment lawsuit by a deep-pocketed plaintiff.