Recipes & Copyright Law
This may seem like a weird post to have on a recipe sharing site, but there’s been some questions regarding some of the recipes I’ve been posting and whether or not I’m breaking copyright law by including them here. For the record, recipes are exempt from copyright law, so sharing lists of ingredients and directions is perfectly fine and has been done for hundreds of years. Straight from the Copyright Law website:
Mere listings of ingredients as in recipes, formulas, compounds, or prescriptions are not subject to copyright protection. However, when 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.
Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form. Copyright protection does not extend to names, titles, short phrases, ideas, systems, or methods.
Recipes are meant to be shared, that’s why they are exempt from copyright law. If someone writes up a block of text describing the “breathtaking flavor jamboree“, I am not allowed to copy that from the recipe. Likewise, people can share the recipes listed on my site, but not my comments about the recipe (although, I’m not real picky about that to be honest). The ingredients and directions are fair game. Another reference point would be this post by Schwimmer Legal citing a couple of cases regarding recipes, copyright law and recipe books.
One should distinguish between a recipe, a textual rendering of a recipe, and a compilation of recipes. Publications Intl. v. Meredith, 88 F.3d 473 (7th Cir. 1996) dealt with alleged infringement of a recipe book.
“The identification of ingredients necessary for the preparation of each dish is a statement of facts. There is no expressive element in each listing; in other words, the author who wrote down the ingredients for “Curried Turkey and Peanut Salad” was not giving literary expression to his individual creative labors. Instead, he was writing down an idea, namely, the ingredients necessary to the preparation of a particular dish. “[N]o author may copyright facts or ideas. The copyright is limited to those aspects of the work–termed ‘expression’–that display the stamp of the author’s originality.” Harper & Row, 471 U.S. at 547, 105 S.Ct. at 2223. We do not view the functional listing of ingredients as original within the meaning of the Copyright Act.
As the Supreme Court stated in Feist: Facts, whether alone or as part of a compilation, are not original and therefore may not be copyrighted. A factual compilation is eligible for copyright if it features an original selection or arrangement of facts, but the copyright is limited to the particular selection or arrangement. In no event may copyrights extend to the facts themselves. Feist, 499 U.S. at 350-51, 111 S.Ct. at 1290.
So trust me on this, both Jesse and I looked into this before I started Open Source Cook a few years ago. Plus, I will always state where I found the original recipe (if I know where it came from). A good example of that is the Peanut Brittle recipe, which I found at Better Homes & Garden.
Open Source Cook started out as my recipe box. I have family and friends who wanted to see a few of my recipes and comment on the ones I’ve sent in with Jesse to work. This was the easiest way to do that. Now, a few years later, a few of my family members are also submitted recipes to this site. Those of us who are posting recipes are sharing our experiences with everyone. That’s all we’re doing.
Why am I posting this? What’s with the pedantry? Some of the recipes I’ve been posting lately have come from the Pampered Chef. They are easy and quick to make and why not share them? I thought, if I could share a Better Homes & Garden recipe, why not a Pampered Chef one? Then I started receiving comments/emails saying that the recipes were copyrighted by the Pampered Chef and I would have to take them down. I couldn’t see how this was possible since we’d actively looked into exactly this issue before we started the site to make sure we were in the legal right. It turns out the Pampered Chef is (wrongly) claiming the recipes as their Intellectual Property, despite the fact that they can’t be trademarked, copy written or patented. Hence the reason for the rant/article.
Plus, in December, I became a consultant for with a kitchen tool company, and as any techie would do, I (for lack of a better word) “synergized” the two. I have recently been told that I am in violation of their policy, which states that no one, not even I, can link to my personal website (that I have to pay extra in order to use, no less), so I’ve had to take a lot of that stuff down. I’ll still mention individual items, but I will refrain from mentioning the company as the manufacturer. Edited to appease the mass mob: I can’t say anything about the company, so if you’re interested in any of the products I mention on this site, email me at myjaxon AT gmail DOT com.
5 Responses
Jo - March 25, 2009
It doesn’t look as if you have read what you have quoted properly. You can list the ingredients however, the directions and any explanation MAY be subject to copyright.
morgajel - March 25, 2009
“The identification of ingredients necessary for the preparation of each dish is a statement of facts. There is no expressive element in each listing;”
Lets replace “ingredients” with “Steps taken to produce the dish”…
“The identification of steps necessary for the preparation of each dish is a statement of facts. There is no expressive element in each listing;”
Since there is no expressive element, they are safe to post- now, if the directions have a faux-french accent written into them, or some other element that makes them expressive, I’d agree. It’s lame, but I’d agree.
The underlying point is that the following are facts:
* “The oven must be at 375F”
* “the sugar and milk must be brought to a boil before you add the vanilla.”
* “addition of salsa as garnish is optional”
Those are facts needed to complete the dish.
SSG Monty - April 1, 2009
Thanks so much for this detailed look at copyright law in regards to recipes. I have been toying with the idea of creating a family website to share family recipes and recipes that we have tried from cookbooks with each other.
The threat of copyright infringement from using a recipe from a published cookbook has kept this idea on the back burner for some time. It seems as though I can begin this project, although I will keep an eye on new news on this front.
PS. Have you had any legal action brought against you with regards to your website? I have no intention of making something as large or as nicely done as you have here, but I’d like to know if you could share any details.
Thank you!
jackie - April 14, 2009
No I haven’t had any legal action brought against me regarding this site. As long as you don’t copy an entire cookbook verbatim onto the web, everything is good. Plus, just because I say a recipe came from a certain place, doesn’t mean it is the original recipe. As soon as you change one item (i.e. 2 cups of flour instead of 3), you change the recipe and the copyright is not longer valid. At least that is my impression.
Rhonda - October 17, 2009
absolutely good information. When I find a recipe I like and try, I often tweak it anyway. When I rewrite the recipe to share it with others, it often does not have the “exact” same wording. This is a wonderful resource for others. Thank you for sharing your experience on this topic with us.
I started searching this topic b/c I was visiting a recipe website that said all their stuff had a copywrite on it and could not be reproduced. However, they have people uploading recipes to the website daily…so I was confused as to “how” they could forbid others from using those recipes in the publication of a newsletter or when included in a cooking club, etc.
Thanks again.
Leave a Reply