What’s Cooking in the Copyright Kitchen?

source: pixabay.com

This is the time of year for cookouts and gatherings with family and friends, and the sharing of traditional family recipes. What’s the secret behind Uncle Mac’s perfect grilled steak (the marinade, the rub or the technique?) or that special dessert whipped up by your sister-in-law? And this invariably leads to the request, “You must give me your recipe”. Most people are flattered when asked, and willingly comply, but what if your livelihood is based on creating recipes?

Are my recipes covered by copyright?” I was recently asked by a food blogger friend. My instinctive reaction was “no, they’re not”, but having dispensed free, non-legal (and possibly inaccurate) advice, I decided I had better dig deeper and try to find out. As is usual in a field as complex as copyright, the answer is “maybe”.

Copyright protection extends to just about every field of human creativity, from emojis (possibly) to tattoos. It covers knitting patterns and architectural designs. The creator of the giant floating rubber ducky claimed copyright infringement when lookalike ducks started popping up in various parts of the world. So why not recipes, those most creative of expressions that emanate from chefs around the world?

Jonathan Bailey in his blog Plagiarism Today has an excellent discussion of this issue. Bailey highlights the case of Food Network personality Anne Thornton whose show Dessert First was cancelled allegedly because she was using recipes, with slight modifications, taken from other well-known chefs including Martha Stewart and the “Barefoot Contessa”, Ina Garten. In her defence Thornton protested that there are only so many ways to make lemon squares, so naturally there were similarities. And this is the nub of the problem. After all, how many ways are there to make shepherd’s pie, a recipe that has probably been around for hundreds of years? And if I add my own little touch, like mixing sweet potatoes with regular potatoes for the covering, and then adding a bit of sour cream to the mix, does that make it mine? Probably not.

The U.S. Copyright Office has a clear statement on its website regarding recipes, but then goes on to muddy the waters. According to the USCO;

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.

That seems pretty clear. However, the statement then continues;

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.

Almost all cookbooks are copyrighted. Just look inside the front cover. What is it then that turns a “mere list of ingredients” (plus barebones instructions like “cook at 350 degrees for 30 minutes”) into a work of “substantial literary expression”? For one thing, the detailed instructions on how to put the ingredients together (the language used to describe the recipe’s instructions) and headnotes can be copyrighted. If a recipe also contains images of food presentations and anecdotes about the origins of the dishes, as in a book or blog, it is also most likely a work that can be copyrighted (except for the list of ingredients of course). If you are a foodie or food blogger, holus-bolus lifting and re-using material of this nature could land you on the wrong side of copyright law, not to mention the perils of plagiarism if you passed off this work as your own.

If you are a famous chef, and you value your reputation, more important than copyright law is the unwritten code of appropriate behaviour. In a ground-breaking study about a decade ago, two researchers at MIT (Emmanuelle Fauchart and Eric A. von Hippel) examined “norms-based” intellectual property systems as practiced by famous French chefs. Through their research they identified three strong implicit norms that were prevalent in the community of well-known chefs. They are;

  1. A chef must not copy another chef’s recipe innovation exactly;
  2. If a chef reveals recipe-related secret information to a colleague, that chef must not pass on the information to others without permission;
  3. Colleagues must credit developers of significant recipes as the authors of that information.

Fauchart and von Hippel point out the similarity of effect between these norms and legally-based IP systems relating to copyright and trade secrets. Where law-based systems offer inadequate protection, social norms fill the gap, with the punishment perhaps even more extreme than a legal sanction; ostracism, shunning and loss of reputation and honour within the community. Foodies beware.

Copyright lawyer Lesley Ellen Harris has produced a helpful series of Questions and Answers about recipes and cookbooks. She reiterates the point that you can’t copyright a list of the ingredients in a recipe (if you really wanted to protect the “secret sauce” in your recipe you would keep it under wraps and treat it as a trade secret) but the descriptions that go with it can be protected. By the same token, if you want to use a recipe produced by someone long ago, and you can’t locate the author, Leslie Ellen suggests you could use the list of ingredients but write your own directions. She reminds readers that attribution is important, e.g. “I enjoyed this pork roast with a caramel glaze at Harry’s Diner in Chicago back in the early 90s. The restaurant may be long gone, but the recipe remains a family favourite!”

Attribution is a huge issue especially among professional chefs and foodies. There are very few things that are totally new under the sun when it comes to cooking, and drawing inspiration from the best has long been part of the food culture. However, to draw inspiration without giving credit really smacks of stealing, even if technically that may not be the case and even if the original recipe is tweaked and “improved”.

Attribution was, after all, one of the three principles of professionally acceptable behaviour among the famous French chefs in the MIT study. This is beautifully illustrated by the letter sent by a famous chef to one of his former employees who had had the temerity to appear on television to present one of the chef’s recipes without proper attribution. As quoted in Fauchart’s and von Hippel’s paper, and translated literally from the French original, it reads thus;

Sir: First, I must tell you that seeing on TV a former employee showing things that I have taught him is a real pleasure. Unfortunately this pleasure was brief, as your presentation has revealed a rare ingratitude. Never did I hear you say what you owe to the master that I have been for you. You should admit that presenting recipes that are mine and that I have taught you without referring to my name constitutes an unacceptable indelicacy….I hope that in your future presentations you will repair these errors and shall credit me with what I have taught to you. Only after this honest acknowledgement will I be happy that you receive a share of my notoriety”.

So there! The French have a way dishing out insults with such elegance.

Another source of information on copyright and recipes is the website PaleoFlourish, which has a posting that claims it is “The Definitive Guide to Recipes and Copyright”. Apart from forcing me to click every couple of minutes on a pop-up ad where I have to select, “No thanks, I don’t like delicious food” in order to decline a free 4 week offer for the Paleo Meal Plan, any blog that claims it provides the “definitive” view on anything makes me a tad suspicious. But the blog post is a pretty good guide to the essentials and takes the reader through the information they need. At the end of the day, however, the only thing “definitive” about whether copying a recipe constitutes copyright infringement is that there is no definitive answer. It all depends…..

So now, regarding my copyrighted recipe for cheese raclette. It was shared with me by a one-legged goat herder in Switzerland after I had rescued him from an icy crevice, and taken him to the shelter of an old Swiss log cabin heated by a roaring fire that cast flickering shadows on his craggy features. The five year old slightly mouldy Apenzeller cheese, aged on a shelf over the hearth, has to be slowly warmed over a dung fire in a beaten copper pot, diluted by steadily drizzling in a cup of 2007 Robert Gilliard les Murettes Fendant, one of Switzerland’s unique white wines…..The list of ingredients will follow. You can copy that!

© Hugh Stephens, 2018. All Rights Reserved (Except for the ingredients that is).

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