Copyrighting Recipes

The question of copyrighting recipes has not been firmly decided by the courts. Certainly, publishers seek copyright protection for books on cooking, as they do on any other subject, and they have often gone after other publishers or individuals whom they feel have infringed on their rights in a published cookbook.

How much copyright law protects recipes within such books or on a website or blog is a matter of some dispute. That is because a recipe is distinct from the typical sorts of writing and expression copyright law has historically protected. Whether a given author's recipes are protected by copyright will typically depend on the facts of each case, such as the manner in which the author has presented the recipe and the other information included with it.

Recipes as Creative Works

Cooking is a skill and an art, which, practiced well, makes life more enjoyable. Persons with good recipes may well consider publishing these in hopes of profiting from their talents. But cooks who want to publish their recipes must beware. The protections available to recipes under copyright law are limited at best.

Copyright law protects original, creative expressions fixed in a tangible medium. These standards are not especially high. A run-of-the-mill story with stereotypical characters and a predictable ending will probably be creative and original enough, as long as it isn't copied or derived from an existing work. Courts are inclined to hold, however, that an individual recipe lacks sufficient creativity to qualify for copyright. Under this view, a recipe is really a process for creating some edible product, and not a creative expression of the sort copyright law is designed to protect.

Scope of the Copyright Act

The scope of copyright law is set forth in the Copyright Act of 1976. The law lists 8 categories of works that are appropriate for copyright. These include

1. Literary works;
2. Musical works and their words;
3. Dramatic works and their music;
4. Pantomimes and choreographic works;
5. Pictorial, graphic and sculptural works;
6. Motion pictures and other audiovisual works;
7. Sound recordings; and
8. Architectural works.

A recipe is not a "literary work" according to the typical use of that term, nor does it fit within any of the other categories.

Why Recipes May Not Be Literary Works

For recipes, courts instead have looked at part (b) of the Copyright Act, stating, "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."

The Sixth Circuit Court of Appeals refused to stop a publisher from selling a cookbook containing recipes that were taken from another publisher's book. Although this court stopped short of saying that a recipe could never be copyrighted, it reasoned that a recipe was more like the exceptions to copyright, than it was to the covered expressions.The Sixth Circuit noted that some courts have approved of copyright protection for recipes in certain circumstances.

Supreme Court Weighs In

In a case before the U.S. Supreme Court, a publisher had simply taken another publisher's book containing recipes, copied it with only minimal changes, and sold it with a new cover as its own publication. That case, however, was from the 19th Century, and involved the unauthorized copying of far more than one or more recipes. Instead, the infringing publisher had copied everything the author wrote, including not only recipes, but suggestions for how to plan and prepare meals, how to serve them, and other tips involving dining and entertaining.

Another older case, from 1924, upheld the copyright protection of a manufacturer's product labels, which included recipes involving the manufacturer's "fruit nectars." The manufacturer had applied for patent protection for the labels, and they included a copyright notice. While part of the purpose of the labels was for advertising, the court also found expression protected by copyright. It called the recipes "original compositions" that served "to advance the culinary art." Although this case seems to support copyright protection for recipes, later courts have read it to apply to collections of recipes, rather than to each recipe within the collection.

Recipe Compilations

The short answer is that a single recipe is unlikely to receive much, if any, copyright protection, and a collection of recipes will be protected in its creative aspects, but less protected as to the specific ingredients and steps required to prepare a given dish. An author or cook considering publishing his or her recipes should approach the subject carefully.

Hiring a Lawyer Before Publishing

Recipes are unusual in the copyright context. Although they are written down by an author, and may reflect great creativity on the part of a cook, courts view recipes more as statements of a process than as literary works. The distinction is not necessarily a clear one. In order to secure the most protection for published recipes, an author should consider consultation with a business and commercial law attorney experienced in copyright issues.