Everyone remembers the episode of Friends where Monica tries to recreate Phoebe’s grandmother’s chocolate chip cookie recipe only to find out it was the Nestle Toll House recipe. Food bloggers are on edge, wondering if they are opening themselves up to legal action if they reprint published recipes or if they change an ingredient or two and call a recipe their own. I suspect a lot of grandmas and aunts who were of cooking age in the years preceding the internet used recipes off food packages and from newspaper clippings and called them their own. In the present day, we live in a litigious society where everyone wants to profit off of everything, so it’s no surprise people are worried that they will get a cease and desist letter for publishing grandma’s banana pudding recipe. (Did Grandma get it from a Nilla wafer box?)
According to the U.S. Copyright Office, copyright law doesn’t protect recipes that are “mere listings of ingredients.” It says copyright protection may extend to “substantial literary expression—a description, explanation, or illustration” that goes along with the recipe. So let’s say for example, a famous chef has a recipe for salmon in his cookbook. The listing of ingredients—salmon, dill, butter–would not be copyrightable. However, if he includes a paragraph about how he came to develop the recipe, his words may be copyright protected. How he writes his directions may be copyrighted. And definitely, a cookbook—a combination of recipes—is copyright protected.
OK, let’s get to the legalese. In order for something to be copyrightable, it has to be original. How many recipes really are original? It’s the age-old question of where does pasta come from—Italy or China? Just about every part of the world has some kind of food in a pastry pocket—think empanadas, calzones, samosas, dumplings, knishes…. Who came up with chocolate chip cookies or brownies? What about pasta sauce?
David Lebovitz wrote for the Food Blog Alliance that “basic” recipes are “fair game” because the basics aren’t likely to vary much. But how do you define a “basic”? At one point, chocolate chip cookies were novel. Now, they are a dime a dozen. So are chocolate chip cookies “basic”? Cake pops are all the rage, but is a standard recipe for cake pops “basic” (and a key lime pie cake pop or red velvet cake pop “original”)? (An aside—is anything red velvet “original” given that it’s the most popular comfort food right now?)
When attributing recipes, Lebovitz outlines three food world rules to follow: Use “adapted from” if you’re modifying a recipe, use “inspired by” if you used someone else’s recipe for inspiration or use the recipe as your own if you change three ingredients. He mentions this last one with caution.
Steven Shaw, a lawyer, from eGullet, would like to see a system where recipe creators get licensing fees. He thinks that “serious recipes really are a form of literary craftsmanship.” I disagree. I would say recipes that are online, in magazines, in cookbooks and in newspapers are lists of ingredients followed by standard directions. Unless you’re making quail in rose-petal sauce with the same emotion as Tita, I don’t see the literary merit in a recipe. I don’t want to see the food writing/restaurant world become like the music industry.
From a professional standpoint, I have read that chefs often borrow from one another, taking on one idea, tweaking, adding to or changing it to make it their own. I would like to poll chefs in the industry and see what their thoughts are. I suspect most chefs would not want to copyright recipes because I suspect most chefs get inspiration from each other. I think they would find dealing with licensing fees for recipes a nuisance.
Now, I think there is a different issue between recipes and food creations, that is, food as art. Some chefs are protective of their creations. I remember Francois Payard’s Payard restaurant and the lovely dessert creations in the front bakery. Customers were not allowed to take photos of the cakes. I’m guessing this was Payard’s way of protecting his food creations, creations that looked like artwork. There are chefs like Payard that create edible works of art, like Jesus Nunez of Gastroarte. (Chef Nunez was recently on Iron Chef.) Can Payard’s cakes and Nunez’s food creations be copyrighted? Not yet, but maybe they should be. In order for the “food art” to be copyrightable, it has to be original and “fixed in a tangible medium.” Unfortunately, because food spoils, it usually doesn’t pass the “fixed” test unlike other media that are used for art.
Before I close the discussion on copyright law, I do want to mention that copyright is one branch of intellectual property law. There are also trademarks, patents and trade secrets. Trademarks exist to identify the source of goods or services, and a trademark must be used for commercial activity or it will lose protection. Food products, even the name of a recipe, can be trademarked. As I mentioned in another blog post, the Doughnut Plant trademarked the blackout cake doughnut. Trademarks also include trade dress, like the shape of the Mrs. Butterworth bottle. Patent law protects inventions. With the popularity of molecular gastronomy and food science, patent law does come into play. Chef Homaro Cantu patented edible paper. At his Chicago restaurant, Moto, he specializes in product development, and his patented inventions appear at the Cooper Hewitt Design Museum and Chicago’s Museum of Science and Industry. The innovative chef appears on the Discovery Network’s Planet Green show Future Food. Trade secrets are things that companies want to keep secret like the formula for McDonald’s secret sauce or Coca-Cola.
I think David Lebovitz’s guidelines are good ones to follow on your food blog if you are adapting a recipe from a cookbook or another food blog or if someone’s recipe inspires you to create something similar. I wouldn’t worry too much about old family recipes, as I’m sure the same recipe for tuna casserole appears in every church and fundraising cookbook across the country. Yes, there is a chance it comes from the back of an egg noodle bag. As far as titles of recipes–titles are not copyrightable, and they can only be trademarked if they are being used in commerce, so chances are you could have a similar title for a recipe. Photographs are definitely copyrighted, and I would ask permission to use someone else’s photo.
*This does not serve as legal advice. For your particular situation, see an attorney.
