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.

And note- we’re not lawyers, this is just a common-sense reading of copyright law.

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