Copyright and the recipe

Next in an occasional series on copyright

Reader Grace Yuhasz was lucky: her grandmother was a home economics teacher.

Lucky enough to benefit from the work product of a competent cook.

Even luckier since she left her a collection of recipes.

recipe2But that raises a question that has Grace puzzled.

“I have numerous recipes from her,” she writes. “Some she wrote out by hand, some she typed, and some she cut out from something. I know some are originally hers but others I don’t know where they come from. ”

The bottom line question: “If I want to print a book of her recipes for my family, how is this affected by copyright laws, since I don’t have a clue how she came up with all of the recipes?”

Great question — and good for Grace for thinking of copyright before just publishing!

Fortunately, there’s also a pretty good answer in the case of most recipes.

Let’s start with what the U.S. Copyright Office has to say:

Copyright law does not protect recipes that are mere listings of ingredients. Nor does it protect other mere listings of ingredients such as those found in formulas, compounds, or prescriptions. Copyright protection may, however, extend to substantial literary expression —- a description, explanation, or illustration, for example — that accompanies a recipe or formula or to a combination of recipes, as in a cookbook.1

So the list of ingredients to be used in a recipe — a mere statement of fact — can’t be copyrighted at all.

But what about the “description (or) explanation” — the step-by-step directions of what to do with those ingredients?

In general, those won’t get copyright protection either. The federal courts have held that “directions for preparing … dishes fall squarely within the class of subject matter specifically excluded from copyright protection by 17 U.S.C. § 102(b).”2 That section of the law provides that: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”3

Now it’s important to distinguish right away between plain ordinary recipes and those where there’s a lot of commentary by the author of the recipe or cookbook. Even the leading case that holds recipes in general don’t get copyright protection has added:

certain recipes may be copyrightable. There are cookbooks in which the authors lace their directions for producing dishes with musings about the spiritual nature of cooking or reminiscences they associate with the wafting odors of certain dishes in various stages of preparation. Cooking experts may include in a recipe suggestions for presentation, advice on wines to go with the meal, or hints on place settings and appropriate music. In other cases, recipes may be accompanied by tales of their historical or ethnic origin.4

And photographs that are used to illustrate recipes are definitely copyright protected and shouldn’t be republished without permission.

Nor can you simply copy a whole cookbook, since that may be protected as an entire work.

For a good overall review of copyright law in the context of recipes, check out this blog post from the Ancestral Chef.5 (In addition to being a chef, she’s a lawyer but, like The Legal Genealogist, makes it clear that she’s not providing legal advice.)

There’s still an additional issue, even with recipes — plagiarism, or passing off someone else’s work as your own. It’s still an ethical violation to claim credit as the original developer of a recipe when you’re not.

So Grace will want to be careful, as any good genealogist should be, in describing the origins of the recipes she publishes. Just as we would describe a handwritten letter with full details (“sent from Grandma to Uncle Fred when…”),6 we would want to do the same with recipes like this.

Bottom line: Stay away from photos and descriptions or directions that show originality. For the rest, go ahead and publish those factual, straightforward recipes, giving credit where credit is due.


SOURCES

  1. Recipes,” Factsheet FL-122, U.S. Copyright Office (http://www.copyright.gov : accessed 18 Feb 2014).
  2. Publications International v. Meredith Corp., 88 F.3d 473, 480-481 (7th Cir. 1996). See also, following this case, Lambing v. Godiva Chocolatier, 1998 U.S. App. LEXIS 1983 (6th Cir. Feb. 6, 1998), cert. denied 524 U.S. 954 (1998) (“Recipes, however, are not copyrightable. The identification of ingredients necessary for the preparation of food is a statement of facts. There is no expressive element deserving copyright protection in each listing. Thus, recipes are functional directions for achieving a result and are excluded from copyright protection”).
  3. 17 U.S.C. § 102(b).
  4. Publications International v. Meredith Corp., 88 F.3d at 481.
  5. Louise, “The Definitive Guide to Recipes and Copyright,” Ancestral Chef, posted 30 January 2013 (http://ancestralchef.com/ : accessed 18 Feb 2014).
  6. See generally Elizabeth Shown Mills, Evidence Explained: Citing History Sources from Artifacts to Cyberspace, 2d ed. (Baltimore, Md. : Genealogical Pub. Co., 2009), 138-153 (§§ 3.24-3.40).
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12 Responses to Copyright and the recipe

  1. So timely for me, Judy. My sisters and I have been discussing creating a family cookbook blog and your advise is worth taking!

  2. Jana Last says:

    This is wonderful Judy! I’ve started to add favorite family recipes on my genealogy blog, so this is great information to know. Thanks!!

  3. John Tracy Cunningham says:

    Thanks, Judy! Now a question: Flipboard is an app and a website that allows users to collect RSS feed articles, tweets, Facebook posts, etc., into an online static “magazine” that can be shared. Wouldn’t such a magazine, especially the RSS feeds, be subject to all the rules of copyright?

  4. Louise says:

    Thanks Judy for summarizing the issue. Glad you found my article useful!

  5. Kenneth H. Ryesky says:

    Actually, family recipes can have genealogy research implications.

    Example: A little more than 4 years ago, there was a family gathering which was tacitly understood, given their respective health statuses, to be the last time my mother-in-law and her two remaining sisters would be together in the same room at the same time (one sister has since passed away, and the two surviving ones are now not up to any significant travel).

    There are various customs regarding what is or is not eaten during the Passover holiday, and those customs had differing rates of prevalence in different areas Europe (unfortunately, some adherents to certain such customs have effectively declared themselves superior to those having differing dietary customs).

    In order to get our facts straight regarding an ongoing conversation between my wife and some other relatives of hers, we asked my m-i-l and her sisters about how their mother (my wife’s grandmother) cooked soup for Passover. For all of my m-i-l’s cognitive issues, she emphatically remembered her mother’s matzoh ball soup, and was heartily concurred in by her two sisters. This told us what we needed to know, and there were some cousins around who were witnesses to the conversation.

  6. Pingback: Friday Finds – 02/28/14

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