479501 Tue Jan 15 05:36:33 -0800 2008 40 29 Not About Food 0 3296512 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? Tue Jan 15 05:36:33 -0800 2008 81926 Roland Parker 1 3296519 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. Tue Jan 15 05:41:32 -0800 2008 3296512 124339 bnemes3343 2 3298277 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. Tue Jan 15 13:21:40 -0800 2008 3296519 101164 PlatypusJ 3 3298293 My understanding is that the ingredient list is not copyrighted, but the instructions are. Tue Jan 15 13:24:38 -0800 2008 3298277 10985 MMRuth 4 3298422 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/viewcontent.cgi?article=7601&context=expresso Tue Jan 15 13:50:21 -0800 2008 3298293 11583 ipsedixit 5 3298506 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..." Tue Jan 15 14:09:55 -0800 2008 3298422 11478 Will Owen 5 3298888 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! Tue Jan 15 15:53:33 -0800 2008 3298422 148845 scoopG 6 3299403 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. Tue Jan 15 18:52:18 -0800 2008 3298888 101164 PlatypusJ 7 3299526 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." Tue Jan 15 19:43:29 -0800 2008 3299403 148845 scoopG 6 3307694 "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. Fri Jan 18 06:47:07 -0800 2008 3298888 11407 JoanN 7 3308020 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. Fri Jan 18 08:14:51 -0800 2008 3307694 112096 Caroline1 8 3308515 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/archives/2005/04/05/new_york_common_law_copyright_protects_50year_old_sound_recordings.php federal copyright law is additional protection. i don't know if this has been cited, but it is useful: http://www.templetons.com/brad/copyright.html and this: http://www.templetons.com/brad/copymyths.html Fri Jan 18 09:57:04 -0800 2008 3308020 105717 alkapal 9 3308630 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. Fri Jan 18 10:19:05 -0800 2008 3308515 112096 Caroline1 5 3299419 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. Tue Jan 15 18:58:04 -0800 2008 3298422 101164 PlatypusJ 6 3299564 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.... Tue Jan 15 19:56:31 -0800 2008 3299419 105717 alkapal 7 3299792 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. Tue Jan 15 21:10:46 -0800 2008 3299564 101164 PlatypusJ 8 3299893 "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. Tue Jan 15 22:05:19 -0800 2008 3299792 14819 cookie monster 9 3299913 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/nyregion/27pearl.html?_r=1&oref=slogin Tue Jan 15 22:12:41 -0800 2008 3299893 14819 cookie monster 8 3312473 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. Sat Jan 19 15:02:03 -0800 2008 3299792 49823 Terrieltr 5 3299826 From the government copyright office: http://www.copyright.gov/fls/fl122.html Tue Jan 15 21:24:09 -0800 2008 3298422 93805 hannaone 5 3307638 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.' " Fri Jan 18 06:26:24 -0800 2008 3298422 112096 Caroline1 6 3308523 your citation from the "horse's mouth" (copyright office), caroline, nails it! thanks. Fri Jan 18 09:59:05 -0800 2008 3307638 105717 alkapal 3 3298648 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. Tue Jan 15 14:44:35 -0800 2008 3298277 124339 bnemes3343 4 3298896 Interesting debate considering the lawsuit against Seinfield's wife cookbook and the other woman who states she had the "idea" first. Tue Jan 15 15:55:22 -0800 2008 3298648 44946 foodseek 5 3299116 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. Tue Jan 15 17:11:34 -0800 2008 3298896 10240 Bob Brooks 6 3299192 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." Tue Jan 15 17:33:16 -0800 2008 3299116 148845 scoopG 7 3299308 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. Tue Jan 15 18:10:47 -0800 2008 3299192 10240 Bob Brooks 8 3299383 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. Tue Jan 15 18:44:15 -0800 2008 3299308 101164 PlatypusJ 4 3298941 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." Tue Jan 15 16:11:20 -0800 2008 3298648 101164 PlatypusJ 5 3299236 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. Tue Jan 15 17:45:17 -0800 2008 3298941 24421 Panini Guy 1 3299860 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? Tue Jan 15 21:43:41 -0800 2008 3296512 89969 moh 2 3300426 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...." Wed Jan 16 06:36:53 -0800 2008 3299860 105717 alkapal 2 3301716 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. Wed Jan 16 12:13:46 -0800 2008 3299860 101164 PlatypusJ 3 3302058 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. Wed Jan 16 13:28:12 -0800 2008 3301716 89969 moh 4 3302171 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." Wed Jan 16 13:57:12 -0800 2008 3302058 148845 scoopG 1 3300384 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. Wed Jan 16 06:21:37 -0800 2008 3296512 63569 flourgirl 1 4906682 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 ...” Fri Jul 31 10:43:05 -0700 2009 3296512 233294 cuccubear 2 4908197 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_music_downloading Fri Jul 31 21:30:05 -0700 2009 4906682 105717 alkapal 3 4908988 That's what I'm afraid of, something like that. Sat Aug 01 11:06:31 -0700 2009 4908197 233294 cuccubear 4 4909372 frankly, cuccu-bro-, i would not take on that task. too much hassle, and people who don't tell the truth.... Sat Aug 01 14:50:17 -0700 2009 4908988 105717 alkapal 1 4909777 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! =) Sat Aug 01 18:39:10 -0700 2009 3296512 1081227 DishDelish