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Oct 10, 2006 04:43 PM

Copyrighting recipes?

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  1. how interesting.... but patenting recipes just seems absurd, although i would agree that the chef-inventor should get the credit for their time and effort.

    1. According to the US Copyright Office:

      "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.

      Protection under the copyright law (title 17 of the United States Code, section 102) extends only to “original works of authorship” that are fixed in a tangible form (a copy). “Original” means merely that the author produced the work by his own intellectual effort, as distinguished from copying an existing work. Copyright protection may extend to a description, explanation, or illustration, assuming that the requirements of the copyright law are met."

      3 Replies
      1. re: C. Hamster

        The article's about patents and about changing the portion of the copyright law that excludes recipes.

        1. re: Robert Lauriston

          Yes, I read it. My point is that the article's claim ("but the law specifically excludes ingredient lists and recipes.") is false.

          You cannot copyright a list of ingredients (though I don't believe that is specifically in the statute) but you can copyright a recipe under the right circumstances -- the US Copyright Office is very clear on this.

          I also found it confusing that supposedly the co-founder of eGullet learned in law school that recipes can't be copyrighted (must have been missed that class) when his own website very clearly assumes recipes are copyrightable.

          This is from eGullet:
          Recipes and Copyright Law
          A list of quantities of ingredients is not copyrightable. What is copyrightable is an author's original description of a dish or the process of making that dish. For example, you cannot copyright the idea of making a drink from 4 oz of grapefruit juice and 8 oz of sparkling water. You can, however, copyright a description of how refreshing this combination is on a hot summer afternoon. You can also copyright a detailed description of you favorite way to mix the ingredients together, and why you do it that way."

          IMO the author seems confused and the result is an article that is misleading.

          BTW, HERE is the eGullet discussion referenced in the article:

          1. re: C. Hamster

            I think the author understood what you're saying. The article is specifically about trying to find legal protections for the idea rather than a particular verbal expression.

      2. To me the legality of it all is a moot point.

        Basically if these guys are cooking at such a high level they should instinctively KNOW BETTER than to replicate in such a blatant way.

        Taking an interesting process or combo of ingredients to use in a different dish is one thing. But in the case of Interlude the chef actually worked at Alinea and took back five very distinctive dishes, which he went on to replicate to the point of reproducing even the exact presentation and garnish! Who cares whether you can prosecute him (I doubt the DA is pressing charges) - it's just lazy and sneaky!

        It boils down to ethics, dignity and respect.

        For your reference, the comparative photos are here:

        1. Part of what is being confused here is the distinction between copyright protection for the literary work of a recipe and for possible protection of the finished dish as a copyrightable work (presumably as a sculpture or visual work, or some other such thing). Different works have different standards under the copyright law. For instance, sculptural works are not copyrightable if they are functional or if the otherwise copyrightable material is conceptually inseparable from the functional purpose. Under that standard, ask whether Msr. Contu's smelly fork is copyrightable? Probably not.

          A tougher question is whether the dish itself is copyrightable. I suppose to answer that question, one would have to know whether food is considered functional or not and, if so, the functional aspect (I imagine nutrition) is conceptually separable from the nutritional aspects. Based on my experiences at Alinea, Moto, El Bulli, etc., I think a reasonable case can be made that such food is not functional. So, without doing more research, maybe copyrightable.

          I do not necessarily agree with C. Hamster's assertion that "A list of quantities of ingredients is not copyrightable." Under copyright law, only a minimal degree of creativity is required in order to constitute an original literary work. And one is entitled to copyright protection of a compilation or collective work even if the individual elements are not copyrightable. The Court in Feist said that this may be a thin copyright, but it is a copyright nevertheless. The selection, arrangement, and coordination of ingredients (to say nothing of the quantities of those ingredients) might therefore be copyrightable. Again, an open question.

          But the bottom line is that actually suing someone for damages on the basis of violation of these copyrights is not financially viable in most cases, and even if it were, it is kind of a prickish thing to do. The culture of copying, and indeed the very encouragement for chefs to pick up a technique and riff on it, should be sufficient to discourage the kind of pure misappropriation described in the article.

          11 Replies
          1. re: jfkfc

            I did not say "A list of quantities of ingredients is not copyrightable." That was eGullet talking. The same eGullet that in the article claims that recipes can't be copyrighted.

            What I said was "Mere listings of ingredients as in recipes, formulas, compounds or prescriptions are not subject to copyright protection."

            And that was a quote from the US Copyright Office.

            Regarding your analysis, query whether a list of ingredients alone (a "mere list"), with no accompanying expression, is a compilation under the statute. Under the statute, a “compilation” is “a work formed by the collection and assembly of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.”

            In Feist, it's easy to argue that a phone book could be a "work of authorship" and thus a protectable compilation because the list itself had independent meaning. Is a list of ingredients on its own a "work of authorship?" Just a thought.

            Although it certainly is financially impractical in most cases to sue for copyright infringement of a recipe, the problem does exist on many different levels and intellectual property law naturally is looked at in addressing the problems -- because many people who know better rip others off. Morals, dignity and respect are not checks for them.

            1. re: C. Hamster

              Is reproducing a common recipe ripping someone off? Can the recipe for beurre blanc be copyrighted?

              The IP system in this country is being abused by attorneys who are long on free time and short on sense.

              What these guys do is take advantage of the ignorance of lawmakers and judges in an effort to line their pockets.

              In the case of the cotton candy paper, that is certainly patentable - but recipes are based on common knowledge and a huge amount of prior art. This is the reason why so many software patents are bogus: because what's been patented is something that would have been obvious to anyone with sufficient experience in software development. The problem is that people in the patent office aren't software developers, so they don't have the necessary experience to discern when something is a unique and original idea.

              Recipe copyright is a terrible idea, because the bottom line is that you can't own an idea. You can own the design of a mechanical device, you can own the specific words you string together into text, but you can't own the concept behind those things.

              Clearly, in the instance of the chefs in Australia and Japan they took something they saw elsewhere and duplicated it - but let's take a step back and imagine that deep frying hadn't existed yet, and that's what they saw. In a world without deep-frying, should the guy who thought it up have been able to copyright it?

              I'd argue no, because the prior art of learning what oil is, and what it does, and using it in cooking would make deep-frying obvious to anyone with sufficient background in cooking.

              1. re: Josh

                In defense of my colleagues in the IP bar, clients believe that patents and other forms of formal IP protection have business value. Otherwise, we would all be writing wills instead. Or blogs. ;-)

                In the U.S., the IP regime is framed around a balance of interests between creators and consumers. We want to provide a limited monopoly to creators to encourage investments in innovation. But we want to keep the rules strict enough that we don't overcompensate activity that would occur regardless of IP rights.

                The pride and passion of individual chefs probably is not affected by the patent system in any appreciable way. But the article says the opportunity is in licensing the giant processed food companies. If the result is that a percentage of sales of the snack-of-the-year ends up subsidizing the most innovative restaurants, I'm okay with that.

                1. re: Jefferson

                  Whether or not lawyers and their clients perceive there to be business value in patents is kind of irrelevant to the question at hand (at least the way I see it). The rules of our society aren't made for the benefit of only those who stand to gain from them monetarily. There's also the time-honored concept of fair use, which seems to have been forgotten in the headlong rush to patent any and every conceivable thing.

                  Original ideas that are made manifest in physical form are what patents are designed to protect. Software patents are inherently problematic because what they're frequently protecting are ideas which would be obvious to anyone with sufficient knowledge of prior art. The problem here is that there aren't people with sufficient software development experience staffing the patent office, so patents get granted for things like "1 click ordering".

                  I fail to see anything being done in the world of cooking that is not built on the work of countless chefs that have gone before. Even edible paper isn't a new idea - Japanese glutinous rice candy has come wrapped in edible rice paper for decades.

                  1. re: Josh

                    Edible inkjet printing is a new invention, the realization of which required a significant investment of time and money by Homaro Cantu. But existing patent law seems perfectly adequate to cover that.

                    Seems to me that any recipe original enough to qualify as an invention would be patentable. I don't see any need to modify copyright law.

                    U.S. Constitution, Article I, Section 8:

                    The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries ....

                    1. re: Robert Lauriston

                      "Edible inkjet printing is a new invention, the realization of which required a significant investment of time and money by Homaro Cantu."

                      I don't think so, Robert, and I don't think that's what the article is saying. Edible ink has been around for a long time. It's what the FDA uses to stamp beef. And edible inks became available in cartridges for the home consumer very soon after ink jet printers did. That's how people put photos of their kids on homemade birthday cakes.

                      1. re: JoanN

                        Did Wells correctly quote the notice on the paper? Sounds like there is a copyright mark but Cantu claims to have applied for a patent. Maybe he should get a new lawyer.

                        1. re: Frolic

                          The article says, "He has already filed 12 applications for patents, including one detailing the process for making cotton-candy paper." Of course, the fact that he filed doesn't mean he'll get it. I can't imagine what he'd be copyrighting other than the concept. And I doubt we'll ever find out whether or not that would hold up in court.

                    2. re: Josh

                      > Whether or not lawyers and their clients perceive there to be
                      > business value in patents is kind of irrelevant to the
                      > question at hand (at least the way I see it).

                      Sorry, but it's the other way around: this thread is irrelevant to what is going to happen in the real world. Unless you and others who want to shrink the scope of IP laws persuade Congress to change them, chef-inventors who don't want to die slaving over a hot stove are going to use the IP laws to the greatest extent possible to capitalize on their creative years. Whether it's a process or a recipe or a good name, licensing inventions and trademarks to others is their way out of the rat race.

                      1. re: Jefferson

                        Considering Congress' general lack of ethics, and lack of understanding of IP issues, I would assume that if those who want to add recipes to the list of patentable things can scrape up enough lobbying dollars, they'll probably get their way. This shouldn't be confused with what is right, fair, or intellectually honest.

                        1. re: Josh

                          Actually, I think recipes already are patentable, if they meet the test of being new, useful and non-obvious. As long as we are talking about tinkering on the margins, with stuff such as the manufacturing processes for edible paper, I can't get too excited. There is a good body of prior art in the field of sustenance.

                          Copyright's more complicated because it lasts for so long. But traditionally the "deal" is that if I publish a "how to" manual, whether in the field of chopping an onion or programming a computer, the reader is free to do the thing described for fun or profit. The reader just can't make copies of the manual and distribute those to others. It's when that deal gets broken that copyright strays from its purpose: a monopoly on publishing in exchange for the knowledge conveyed. I think it is unlikely that Congress will create a new right to cook a recipe. But then, it used to be that you could copy a building...

            2. I agree with tuttifrutti. I do feel it is some what dumb to still have ownership of something that is going down to your stomach but should the chef credit. I see it has if your to buy a car and you own the car but not the car company or its logo. The chef just wants to protect his creation.