One of the most common questions posed to me when I mention my interest in intellectual property law and food is whether recipes can be protected. As I mentioned in my last post, there are numerous examples of recipes that are protected as trade secrets. However, the downside to trade secret protection is that others can attempt to “reverse engineer” the recipe and are not liable for misappropriating that trade secret. On this point I have to admit that, as a culinary dunce, I do not know how easily or closely a master chef could successfully recreate another’s secret recipe, so perhaps trade secret provides adequate protection in the culinary arts. However, another downside to trade secret protection is that even if someone misappropriates a secret recipe, that person may be liable, but the culinary cat will be out of the bag (so to speak) and the secret is ruined.
However, copyright law may could potentially provide stronger protection for chefs worried about others copying their recipes. But this raises the question of whether a recipe falls under what is known as “copyrightable subject matter.” The copyright statute spells out some things that are definitely copyrightable subject matter, including familiar examples like literary works and sound recordings. [1] The copyright statute also states that some things will are not protectable by copyright even if they are original works of authorship. This group includes ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries.[2] These things are not copyrightable no matter what form they take or how they may be embedded into an otherwise copyrightable work.[3]
Based on that list alone, one can easily argue that a recipe is simply a procedure or process, and is simply not copyrightable. The Code of Federal Regulations and the United States Copyright Office have both adopted this viewpoint. The United States Copyright Office has said that “mere listings of ingredients as in recipes . . . are not subject to copyright protection.”[4] The Code of Federal Regulations echoes the Copyright Office and expands on § 102(b) of the copyright statute by specifically stating that “mere listings of ingredients or contents” are not subject to copyright protection.[5] The combination of the statute, the C.F.R., and the Copyright Office makes a strong case against the recipes as copyrightable subject matter. But wait: There’s more!
The United States Court of Appeals for the Seventh Circuit heard a case in 1996 that resulted in “the most extensive discussion of the copyrightability of recipes by any court.”[6] In that case, the Seventh Circuit vacated the ruling of the district court, which had entered a injunction against the defendant “after concluding that recipes . . . are protectable under copyright law.”[7] The Seventh Circuit characterized recipes as procedures or processes, and noted that these generally fall under the purview of patent law, not copyright.[8] The Seventh Circuit also quoted David Nimmer, author of the well-known treatise Nimmer on Copyright to support its conclusion that recipes are not copyrightable.[9]
Then, in 1998, the United States Court of Appeals for the Sixth Circuit came to the same conclusion.[10] That case involved copying of the recipe and design (I’ll write about design issues later) for a particular chocolate truffle, and the Sixth Circuit basically compared the list of ingredients in a recipe to a statement of facts, which are not copyrightable.
As Christopher Buccafusco notes, all of these opinions rest on the assumption that a recipe, any recipe, is no more than an unoriginal list of ingredients and/or steps.[11] Surely this assumption is overbroad. Even a culinary dunce like me can imagine writing a recipe that involves the modicum of creativity necessary to invoke copyright law. Nonetheless, the current state of copyright law and jurisprudence in the United States holds the view that recipes are not copyrightable. The wonderful thing about U.S. law, however, is that it is constantly changing and being re-interpreted, and no legal rule is set in stone (unless you are Justice Scalia). Therefore, it is possible to image a way for copyright law to apply to food in various ways other than the recipe itself. In fact, a number of legal scholars and I have explored this very notion, and it seems there is opportunity for creative culinarians to afford themselves of copyright protection. But I am choosing to save that discussion for a later post.
[1] 17 U.S.C. § 102(a).
[2] 17 U.S.C. § 102(b).
[3] Id.
[4] U.S. Copyright Office, Recipes, http://www.copyright.gov/fls/fl122.html (last visited Sept. 20, 2010).
[5] 37 C.F.R. § 202.1(a) (2009).
[6] Christopher J. Buccafusco, On the Legal Consequence of Sauces: Should Thomas Keller’s Recipes be Per Se Copyrightable?, 24 Cardozo L. Rev. 1121, 1127 (2007).
[7] Publ’ns Int’l, Ltd. v. Meredith Corp., 88 F.3d 473, 475 (7th Cir. 1996).
[8] Id. at 481.
[9] Id.
[10] Lambing v. Godiva Chocolatier, No. 97-5697, 1998 U.S. App. LEXIS 1983 (6th Cir. Feb. 6, 1998).
[11] Buccafusco, supra note 6, at 1129.
