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Recipe plagarism

Periodically I daydream about opening a gourmet food store (something similar to what the Barefoot Contessa was like before its demise). I'm a very good cook, and my foodstuff has garnered much praise from a wide mix of people, which does fuel this fantasy.

However, most of my recipes are from established cookbooks and chefs. Is using a recipe published in a cookbook for a business venture a form of plagarism? Are recipes protected by copyright laws?

So, I'm asking all the chefs and caterers and storeowners out there: do you routinely borrow other people's recipes or do you establish your own recipes (even if it's only changing one ingredient out of a long list, does that alone make it "your" recipe?

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  1. If someone has published a recipe, you are perfectly within your rights to follow this recipe, make the dish, and then sell the product. What you can not do is sell/publish the recipe as your own. If no kitchen could sell any food product that came from a recipe they didn't develop themselves, we would all be in big trouble.

    35 Replies
    1. re: bnemes3343

      Bnemes3343, I don't know if you're even a lawyer, but your advice is incorrect. One can often sell/publish someone else's recipe as one's own by respecting basic copyright principles.

      1. re: PlatypusJ

        My understanding is that the ingredient list is not copyrighted, but the instructions are.

        1. re: MMRuth

          Actually, while debatable amongst legal circles, technically when a recipe is "created" (whether published or not) it's arguably protected by copyright laws.

          Now, whether someone can sue you for stealing, ahem, I mean using their recipes for profit is a different question, implicating unfair competition, trade secrets and perhaps even patent laws.

          For further reading, I suggest this article: http://law.bepress.com/cgi/viewconten...

          1. re: ipsedixit

            Ideas cannot be copyrighted, only actual works. That's why I cannot transcribe one of Julia's recipes and post it here, but I can recast the instructions in my own words and put it anywhere I want to. I'd rather do this anyway, since it gives me leeway for substitutions and/or doing the procedure a little differently.

            The issue among us cooks is more a matter of respect than of legality. It's not at all uncommon for some cookbook or food-column writers to lift recipes minus any attribution, and if you're talking tuna-noodle casserole that's no biggie. It's when said writer presents something as her very own invention, or maybe as an Old Family Recipe, and it's got, say, Paula Wolfert's fingerprints all over it, that it's time to start heaping scorn. If it's printed in a copyrighted publication, even a paraphrased or modified version of a recipe the writer originally got from another book or website should have an attribution in there somewhere - "This was based on a recipe I found in..."

            1. re: ipsedixit

              Thanks ipsedixit for that! From a cursory reading though it appears that recipes are not copyrightable - at least by Chefs that is. The entire Cookbook copyright is owned by the book's publisher, not by the Chef who created the book. Recipes apparently lack the required "original expression." The ingredients are a mere "statement of facts" and the directions nothing more than a "process or procedure."

              The author of the legal paper seems to believe that the courts have not caught up with creative cooking arts. It is one thing to talk about baked apple pie which has been around for how long now and Thomas Keller's Oyster Pearls which he "invented" last week. Also it seems there are two rules to cookbook publishing:
              1) use your preface to vigorously assert your own originality and;
              2) steal like mad from your predecessors!

              So Roland Parker I say full steam ahead!

              1. re: scoopG

                A collection or arrangement of otherwise non-copyrightable materials (like recipes) might be copyrightable if the collection/arrangment itself constitutes creative expression. However, that copyright only extends to the collection/arrangement and not to the underlying materials. Whoever does the collecting/arranging is the original holder of the copyright. So if the chef "created" the book, then it's the chef's copyright. The chef may sell the copyright (or pieces thereof) to a book publisher.

                1. re: PlatypusJ

                  Platypus - that is not what it says in the legal report ipsedixit introduced. At least in my cursory reading of the 43 page text.

                  Food, Cooked Food, Dishes, Recipes or whatever do not fall under copyright laws as it applies to "creative expression" under recent court rulings in the US.

                  Thomas Keller is even quoted as saying that he would technically need permission from his publisher to use one of his own recipes.

                  Courts seem to treat Food and the creative expression in cooking and presenting it as not falling under the protection similarly accorded works of dance, film, novels and films etc. One reason for this it seems is that most cooked food falls into the category of "culinary domain."

                2. re: scoopG

                  "The entire Cookbook copyright is owned by the book's publisher, not by the Chef who created the book."

                  In my early grunt-work days in publishing, I used to file copyrights for cookbooks as well as other types of books. The copyright is held by the person named in the copyright application. That may be the publisher, the author, or a company set up specifically for the purpose of holding that copyright. In the early days of publishing, most copyrights were held by the publisher in trust for the author. That's now changed and nearly all publishing contracts with an author (with the exception of some textbooks with multiple authors and editors) stipulate that the publisher will file for copyright in whatever name the author chooses.

                  1. re: JoanN

                    Just to clarify for anyone who may not know much about the writing/publishing process, any writer may copyright his/her work prior to sending it out to publishers and/or agents. That is assuming it is a copyrightable work.

                    1. re: Caroline1

                      there is a common law copyright protection by the very fact of creation by the author (assuming it is original).

                      a discussion of common law copyright:
                      http://importance.corante.com/archive...

                      federal copyright law is additional protection.

                      i don't know if this has been cited, but it is useful:
                      http://www.templetons.com/brad/copyri...

                      and this:
                      http://www.templetons.com/brad/copymy...

                      1. re: alkapal

                        Actually, a writer's work is copyright (by U.S. law) the moment the writer records it in permanent format, whether that be on cyber paper, dictation machine, tape, or hard copy. In some cases, REGISTERING your copyright will give you added benefits you may not have if you haven't bothered with formal registration. In some cases, those added benefits may be quite substantial.

                3. re: ipsedixit

                  Patent laws will only apply if the "inventor" gets a patent from the patent office for his/her "invention."

                  Unfair competition, trade secrets, and other state laws will be (in most if not all jurisdictions) preempted by copyright law, which is federal. This makes a copyright claim the exclusive remedy.

                  1. re: PlatypusJ

                    unfair competition and trade secrets claims may encompass conduct that is not addressed in copyright -- even with respect to use of proprietary recipes in a business setting, and thus, such claims are not necessarily preempted by federal copyright law.

                    any author's original creative work is copyrightable. arranging words to describe cooking steps would seem to qualify. these days, i'm wondering whether proprietary recipes used commercially might begin to be protected via a "business method"-type patent. just thinking out loud....

                    1. re: alkapal

                      Regarding the copyright preemption issue, true, it would depend on the facts.

                      Arranging words to describe cooking steps, though, does not constitute a "creative" work because instructions are utilitarian. In order for the instructions to be creative, and therfore copyrightable, the author would have to integrate something extra (e.g., floury descriptions, humor, stories) into the instruction. I think I remember Amy Sedaris doing this in her cookbook.

                      1. re: PlatypusJ

                        "Floury descriptions"? I guess that's certainly possible in a cookbook. Sorry - I couldn't resist.

                        Wasn't there a recent case in NYC of a chef trying to stop one of his former employees from opening a new restaurant using "his" recipes? I don't recall if the legal basis of the claim was copyright, unfair competition, or what.

                        1. re: cookie monster

                          Found it - it's "her," not "his," recipes, and the claim seems to have been as much about the concept and design of the restaurant as the actual recipes.

                          http://www.nytimes.com/2007/06/27/nyr...

                        2. re: PlatypusJ

                          Actually, I think instructions come under the merger doctrine. If an idea can only be expressed in a limited number of ways, it "merges" with the expression and neither is protected.

                      1. re: ipsedixit

                        Aha!!! So THAT explains it! There is another thread somewhere on these boards questioning why literary magazines (and others?) are soliciting *annotated* recipes! Well, according to the website paper you cite above (http://tinyurl.com/2mpcd9), by current U.S. law the annotation makes the recipes COPYRIGHTABLE!!!

                        Those sneaky devils!

                        ...........................
                        The following excerpt is provided for educational purposes:

                        "The Copywright Office of the U.S. government has added its own limitations, noting, '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.' "

                        1. re: Caroline1

                          your citation from the "horse's mouth" (copyright office), caroline, nails it! thanks.

                      2. re: MMRuth

                        David Lebovitz recently wrote and interesting article about this issue. http://foodblogalliance.com/2009/04/r...

                        1. re: theotagogirl

                          Food writer Laurie Colwin once said that if it wasn't for people sharing recipes, mankind would not have survived. Hence the long-standing tradition of sharing recipes. It's something that makes food blogs special. But it's always a good idea, ethically and legally, to cite your source of inspiration.

                          1. re: HillJ

                            This is one reason why I have stopped doing much on my food blog. I meticulously craft my own recipes from my own mind with flavors I like in my food. I don't mind people using them, but people do steal and don't give credit. I used to post recipes on a message board I was on and would go to another board later and see my recipe on there posted by someone from where I originally posted it, claiming it was theirs. It really made me angry. I don't even make that recipe anymore b/c everyone was passing it around and it's origins became lost.

                            1. re: sisterfunkhaus

                              sisterfunkhaus, I can understand why you feel that way and I respect your frustration. Blogging is an (undeserved) easy target, heck the Internet has made cut & pasters of us all. And originalty is harder to come by, keep and claim-even when earned. A few of my recipes have been selected for cookbooks over the years and I've seen them used, misused, adapted and improperly credited myself and the publisher (who now owns them) didn't seem to really care when I brought it to their attention. Unless I wanted to spend my time with legal eagles, I had little choice. In my case, we weren't talking big money worth the time and energy...but it does chip away at your perspective on humanity.

                              I have also seen the use of "provided by" when sharing an original source for a recipe with others. I think sometimes the real dilemma is knowing who the originator truly is or taking the time to research it.

                              1. re: sisterfunkhaus

                                It's tremendously frustrating when a recipe that's offered up in a public venue is appropriated by someone else.

                                Just keep track of the time/date stamps on your own blog, and elsewhere you discuss making your recipes. That way if questioned "who made this *first*?" you've got a time/date stamp that shows that you went on the record about it -- first.

                                1. re: sisterfunkhaus

                                  This recipe sharing dilemma reminds me of the original allrecipes.com site which began useful and fun. But I stopped posting there because the recipes which were suppose to become the ownership of the sharing site wound up all over the net; even commercial sites with a recipe section reprinted these recipes w/out permission. It was pre-food blog era but for those of us who worked at creating recipes (like you) it wasn't fun to see your recipe yanked and reused without proper identifying marks.

                          2. re: PlatypusJ

                            Which is why I said 'as your own' in my reply. Yes, you obviously need to respect copyright laws. But this is really not relevant to the OP's question. He/She just wants to make an apple pie from a recipe and sell it without going to Rykers.

                            1. re: bnemes3343

                              Interesting debate considering the lawsuit against Seinfield's wife cookbook and the other woman who states she had the "idea" first.

                              1. re: foodseek

                                Not that this is a big deal, but the lawsuit is not about using copyrighted aspects from the other author's book; it's about slanderous remarks allegedly made by Seinfeld regarding the author of the "other" book. The law is quite clear on this topic: recipes themselves cannot be copyrighted; only their written expression.

                                1. re: Bob Brooks

                                  Bob, no - recipes are not protected by copyright law. Nor is the "written expression" of recipes protected. Please see ipsedixit's post above with link to law article. Chefs cannot own copyrights to their own recipes - the book publisher would own the copyright to what I understand is the published collection of recipes. No court will ever uphold someone's recipe for "Apple Pie" as it is part of the "culinary domain."

                                  1. re: scoopG

                                    I think you didn't understand what I meant by "written expression". By that I meant that you cannot take the word-for-word instructions of a recipe from someone else and copy it as your own. You may, however, take all the other details and techniques of the recipe and write them in your own words without infringing anyone else's rights.

                                    1. re: Bob Brooks

                                      In many circumstances one CAN take word-for-word instructions from someone else's recipy and copy it as one's own. (e.g., combine 1 cup flour and 3 eggs). You cannot, however, when those instructions include creative expression independent from the recipe itself.

                              2. re: bnemes3343

                                Copyright law is the ONLY thing relevant to the OP's quesiton. If recipes were protected by copyright, then the apple pie itself would be protected as a derivative work. Since recipes are not protected (to the extent that they are mere statements of facts), then anyone is free to "sell/publish the recipe as [one's] own."

                                1. re: PlatypusJ

                                  Keep in mind ethical chefs/cookbook writers typically pay homage to whomever they've borrowed from, especially when they're borrowing a recipe virtually as is. I think you see this on menus where the chef is secure enough to pay tribute on the menu to whomever was the dish's original creator.

                              3. re: PlatypusJ

                                "One can often sell/publish someone else's recipe as one's own by respecting basic copyright principles"

                                Isn't that an oxymoronic statement - you can steal [copy] someone else's copyrighted original material and claim it as your own intellectual property by respecting the basic copyright principles which state that one cannot copy [steal] another's original material without obtaining the right to copy? How do you do that?

                            2. I seem to recall hearing that Homaru Cantu of Moto had taken out some patents on some of the techniques that he uses in his restaurant. If he has a patent on the technique which is essentially his recipe, then I would guess that it would be protected by law. Any comments on this situation?

                              4 Replies
                              1. re: moh

                                from my post up-thread:
                                "i'm wondering whether proprietary recipes used commercially might begin to be protected via a "business method"-type patent. just thinking out loud...."

                                1. re: moh

                                  It is theoretically possible to get a patent on a cooking technique, especially for the new, molecular gastronomists. The most significant hurdle, though, is that the technique must be "non-obvious," meaning that a person knowledgeable in the field of use and with ordinary skill in the art would not likely develop the same invention. This hurdle would likely prevent most recipies from being patentable.

                                  A business method patent wouldn't really apply to recipes because these are for inventions for new ways of doing business. An example of a business method is Blockbuster's online, DVD subscription rental service.

                                  1. re: PlatypusJ

                                    Homaru Cantu's recipes are in the family of molecular gastronomy, and he experiments in a lab to develop some of his cooking techniques (much like the chef of El Bulli, Ferran Adria) which is why he may be able to patent them.

                                    1. re: moh

                                      I think he has applied for a patent or two. To obtain a patent, the "invention" must produce a useful, concrete and tangible result. Ideas and concepts are out. Patents are granted for "processes, machines, manufacturers and composition of matter."

                                2. Thanks for asking this question as it was something I've been wondering about too. I'm very happy to find out that this wouldn't be a problem. Not that I was really expecting the author of a cookbook to actually taste any of my food and accuse me of using their recipe, but it's nice to know that there's one less thing I will have to worry about if I ever launch my own business.

                                  1. How can a copyright law be enforced when the Internet is so expansive and cannot be policed every second? If I copyrighted an original recipe, then posted it here, the chances of me finding where it has been posted again are slim to nil. If I posted a recipe verbatim from a Southern Living cookbook without citing it, how would the copyright infringement become apparent?

                                    I ask because I have suggested an “Employee Recipe” theme for my company’s 2011 calendar, and I certainly don’t want it to cause any problems.

                                    I’m fine with just citing the source of the recipe if it is not original, ie: “Taken from the YYZ Cookbook, by Geddy Lee, c.1981, with additional commentary by employee ...”

                                    4 Replies
                                    1. re: cuccubear

                                      cuccu, be careful. look at the ridiculous judgment that came down today in federal court for downloading 30 songs illegally. verdict @ $22 THOUSAND dollars PER SONG!
                                      http://news.yahoo.com/s/ap/us_tec_mus...

                                      1. re: alkapal

                                        That's what I'm afraid of, something like that.

                                        1. re: cuccubear

                                          frankly, cuccu-bro-, i would not take on that task. too much hassle, and people who don't tell the truth....

                                      2. re: cuccubear

                                        Have never seen this thread before, but am reading it now. Very interesting topic. I appreciate the YYZ cookbook by Geddy Lee :)

                                      3. I first discovered Ina Garten, the Barefoot Contessa a number of years ago when she was featured as one of Victoria magazine's female entrepreneurs of the year. I immediately clipped the article and saved it and still go back to read it because I too have dreamed of opening a small business like this. Great question! =)