Earlier this year, there was another skirmish in the long running battle over copyright in recipes. The intriguingly titled case of Tomaydo-Tomahhdo,LLC v. Vozary 1 once again examined the question of: are recipes copyrightable? And if so, what parts?
I have long maintained that the idea of copyright in a recipe violates two main principles of the copyright law, namely the lack of protection for facts 2 and the lack of protection for procedures, processes and systems. 3 A recipe is little more than a listing of the necessary ingredients, along with instructions on how to combine them. This is not, by the very terms of the copyright act, capable of copyright protection.
This is why your cookbook is likely to be festooned with photographs and illustrations as well as lengthy asides ruminating on the history of the porcini mushroom. These are unquestionably the proper subject matter of copyright and thus grant the cookbook copyright protection. But no one buys a cookbook for the illustrations; they buy it for the recipes. Now, the overall collection of recipes, as a compilation, 4 will qualify for copyright protection, but this will not necessarily protect an individual recipe from being copied.
Making matters worse, if you really wanted to protect your recipe from being copied, registering it for copyright might be the last thing you would want to do. In order to register, you would have to send a copy of it to the copyright office, which of course would make it a public record. The most popular recipe in America, the formula for Coca-Cola, is also one of America’s most closely guarded trade secrets. 5 Major chain restaurants also keep their recipes a secret. Here, for example, is the “recipe” for one of my favorite chain salads, The Cheesecake Factory’s “Chinese Chicken Salad.” Note that it omits the most important part: the necessary ingredients and how to make the salad dressing! 6 Ditto for another one of my favorites: The “Santa Fe Salad.” In both cases, they tell you to buy the dressing from a store. How helpful.
Yet the Copyright Office itself is not quite as certain as I am on this subject. According to the Copyright FAQ’s:
“How do I protect my recipe?
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… there may be a basis for copyright protection.” 7
To which I say, how can you have “substantial literary expression” in a recipe? One of the guiding principles of copyright is that copyright will not protect expression where there is only a limited number of ways you can state something. 8 If the final direction is to “bake for 30 minutes at 350 degrees,” how many different ways can you say that?
Also consider that cooking contains numerous “terms of art,” or words that have specific meanings. “Bake,” “broil” and “grill” all indicate ways of heating something, but each refers to a specific method by which this is accomplished. (If there’s any doubt, try broiling a soufflé and see if you are pleased with the results). Or you could examine the words “simmer,” “reduce,” “whisk” or “boil,” all which have specific culinary meanings. How would you explain how to cook something without using one or more of those terms if the recipe called for it?
Says the Ninth Circuit Court of Appeals:
“The idea contained in that statement cannot be expressed in a wide variety of ways. Just about any subsequent expression of that idea is likely to appear to be a substantially similar paraphrase of the words with which [Plaintiff] expressed the idea. Therefore, similarity of expression may have to amount to verbatim reproduction or very close paraphrasing before a factual work will be deemed infringed.” 9
The leading case involving recipes comes from the Seventh Circuit Court of Appeals, Publications International Ltd. V. Merideth Corp. 10 The case has been cited by other Courts in denying copyright protection to recipes, 11 including Tomayto-Tomahhdo mentioned above. The Court in Merideth held that the recipes in question were not copyrightable, namely:
“The recipes involved in this case comprise the lists of required ingredients and the directions for combining them to achieve the final products. The recipes contain no expressive elaboration upon either of these functional components, as opposed to recipes that might spice up functional directives by weaving in creative narrative.” 12
Ah, but there’s a loophole! “[R]ecipes that might spice up functional directives by weaving in creative narrative.” And it’s a Texas-sized loophole at that.
Consider the case of Barbour v. Head, a case from the Southern District of Texas. 13 The Judge, with tongue firmly in cheek and frequently tossing off humorous asides, (referring to the cookbook in the Merideth case as “No doubt a citified book of no use fer [sic] the varmints cooked hereabouts”) refuses to dismiss the lawsuit based upon the copying of recipes, based upon the inclusion of fanciful names for the recipes (“Cattle Baron Cheese Dollars” and “Gringo Gulch Grog”) and non-instructional verbiage (“this is the secret to the unique taste”) that nonetheless wound up being copied verbatim by the Defendants.
Ultimately, this loophole will do little to protect the actual recipe from being copied. As long as one simply copies the ingredients and the instructions on how to combine them, and eliminates any unnecessary extra verbiage, the recipe still may be freely copied, and it will not get copyright protection.
There are considerations beyond the mere letter of the law. As this article from Plagiarism Today points out, in the age of the celebrity chef, being caught lifting someone else’s recipe might damage your reputation and do serious harm to your career. 14
Otherwise, it’s a case of “if you can’t stand the cheats…stay out of the kitchen.”
- 2015 WL 410712 ↩
- Harper and RowPublishers v. Nation Entertainment 471 US 539 Supreme Court of the United States 1985 at 556 ↩
- 17 USC 102(b) ↩
- 17 USC 103(a) ↩
- Coca-Cola formula ↩
- Chinese Chicken Salad ↩
- How do I protect my recipe? ↩
- Landsberg v. Scrabble Crossword Game Players, Inc., 736 F.2d 485, 489 (9th Cir.1984) ↩
- Id. citing 1 M. Nimmer, Nimmer on Copyright, § 2.11[A]–[B] (1968) ↩
- 88 F.3d 473 Seventh Circuit Court of Appeal 1996 ↩
- See e.g. Harrell v. St. John 792 F.Supp2d 933 District Court for the Southern District of Mississippi 2011 ↩
- Merideth. at 480 ↩
- 178 F.Supp2d 758, District Court for the Southern District of Texas 2001 ↩
- Recipes, Copyright and Plagiarism ↩