I interrupt our regularly scheduled protein fest to bring you some legal musings. As
sweetnicks notes,
Alosha’s Kitchen has gotten into a wee bit of trouble with the big brass over at Cook’s Country for posting an edited version of one of their recipes on her blog. Well shame on you Cook’s Country, for you do not have any legal ground on which to complain about bloggers posting your recipes, ESPECIALLY if said blogger changed the recipe, as we all tend to do to fit our own tastes.
Since being really perturbed by the idea that a publisher tried to bully a fellow blogger into submission, I have put together a quick reference guide for “Why Food Bloggers Can Write about Published Recipes.” Note that I say “Published recipes, because they are not copyrighted recipes, only part of a copyrighted book or magazine. These cases should explain.
Barbour v. Head states that in this particular case of one cookbook stealing recipes from another, there may have been copyright infringement for the copying of light-hearted or helpful commentary, not for the copying of just the recipes themselves. The court found that the recipes were nothing more than mere recitations of facts and thus could not be copyrighted because they were procedures or processes. The only reason the case was allowed was because the books were filled with “light-hearted or helpful commentary.” For example, the Cowboy Chow recipe for "Cherokee Chicken" states: "Heat oil in heavy skillet. Add sugar and let it brown and bubble. (This is the secret to the unique taste!)" and in License to Cook Texas Style it’s identical minus the exclamation point: "Heat oil in heavy skillet. Add sugar and let it brown and bubble (this is the secret to the unique taste)." The court found that recipes may warrant copyright protection where the recipe includes "suggestions for presentation, advice on wines to go with the meal, or hints on place settings with appropriate music” or when it has history or ethnic information.
Summary: Leave out all the emotive little notes/history lessons/tips from sidebars and there is no copyright infringement.
The court in
Publications Int'l v. Meredith Corp holds that a “compilation copyright” (the copyright on a book) does not cover the individual recipes contained within a publication, but only covered the way they were presented in the book/magazine.
Lambing v. Godiva Chocolatier ‘s court noted that recipes were not copyrightable. Recipes are just directions and are excluded from copyright protection under 17 U.S.C.S. § 102(b).
17 USCS § 102 (b) states 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.”
Thus, while many works can be protected, procedures, like “preheat oven to 350” or “mix until light and fluffy” cannot be copyrighted, no matter how it is explained. Even copying directions word for word into your blog is legal so long as you do not include the bits that could be considered “personal” or “unique” (my best example would be anything that starts with “in my experience” or “did you know”).
Hmmmm….now, I am just a 1L, but it seems to me like all the cases say YOU CANNOT COPYRIGHT A RECIPE. Cook’s Country cannot say that a directions only version of their recipe cannot be put on a blog, let alone a modified version of their directions. This is not to say that the law won’t change, so keep an eye out, you may at some point have to take down your recipes, but for now, the courts have ruled that recipes are not literature, theses or pictures and are not subject to copyright protection.
**in addition to the links, I got background information from legal sources I have access to at the office, but that I have no way of showing you, so just try lexis nexis or westlaw if you have access, or a legal library if not, and if you want to look into this further**