Copyrights for Culinary Creations

Introduction

The question of whether recipes, or unique culinary creations can be protected by copyrights is a debate that’s rather recent, owing to the rise in ‘celebrity’ chefs in social media. Recipes often comprise a list of ingredients, with a method of creation that receives the end result. Celebrity chefs are often expected to create original recipes that set them apart from other chefs—like all forms of influencers, there is a need to “create” content, which in this case, is in the form of culinary creations. Chefs that create recipes, like all other creators and innovators, want to protect their idea. In 2011, Anne Thornton, a ‘star chef’ on Food Network was accused of plagiarizing recipes from other famous chefs. Following the plagiarism battle, she lost her contract with the Network. The protectability of recipes under copyright law is a complex question, rooted in the concept of ‘idea-expression’ dichotomy, the text of the law, and the nature in which the recipe is expressed. To that effect, this piece examines the law of copyrights as it would apply to recipes.

Copyright Law—what it does and does not protect

Copyright law is meant to protect the expression of an idea, which is the original creation of a person, exhibits some form of creativity, and is expressed in a permanent or tangible form. While considering a recipe in abstraction, it would seem to meet these qualifications, the law on copyrights is more stringent than to permit a recipe to be protected under copyright, as is evident from the way copyright laws define “works” that are protectable. Section 13 of the Copyright Act, 1957 states that a copyright subsists in “original, literary, dramatic, musical and artistic works; cinematographic films; and sound recordings.”[1] The text of the law does not allude to recipes being copyrightable “works”.

Furthermore, the answer of why a recipe cannot be copyrighted lies in the ‘idea-expression’ dichotomy that intellectual property is rooted in. In the same manner that ideas cannot be patented, an idea cannot be copyrighted as well. Copyright law of the U.S., which lists out in great detail what can be protected under copyrights, further goes on to state that copyright protection does not “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, illustrated, or embodied in such a work.”[2] Considering the take of the law on this, the question arises whether a recipe can be regarded as an idea. A recipe is essentially a list of ingredients, and a process, or a set of directions that are supposed to guide how the ingredients are to be used, in order to create a culinary dish. The United States Copyright Office Compendium (“Copyright Compendium”) states that a “mere listing of ingredients or contents is not copyrightable,”[3] and that a “simple set of instructions”[4] is also not eligible for copyright protection. Quite clearly, neither of the two chief components that a recipe can comprise are copyrightable.

Critical Analysis
The ‘Idea-Expression’ Dichotomy, Literary Expression, and Precedents

Recipes, for this purpose, are generally considered as an “idea,” and thus, cannot be copyrighted. As such, the idea can only be explained in a very limited fashion, to the point where there is no discernible distinction between the idea and the expression. The ‘Merger Doctrine’ is used for this purpose, of determining whether the idea and the expression converge to the extent that they cannot be delineated. In Morrisey v. Proctor & Gamble Co.,[5]the question of dispute was whether the rules governing a contest or competition could be the subject for copyright.[6] The Court answered in the negative, stating that copyrighting the rules would amount to copyrighting the idea of the contest itself. Similarly, the Court reaffirmed this principle in the case of Joshua Ets-Hokin v. Skyy Spirits Inc.[7]that pictures of the same subject cannot be copyrighted as there are only limited ways in which it can be photographed. Therefore, where the expression of the idea is so severely limited, that the bare bones of the expression bear no addition to the idea itself, that work cannot be copyrighted. Furthermore, recipes are considered as “factual and functional” in the case of Tomaydo-Tomahdo, LLC v. Vozary.[8] In consonance with the Copyright Compendium that explicitly rules out recipes as copyrightable works, the Court stated that “the list of ingredients is merely a factual statement, and as previously discussed, facts are not copyrightable.”[9]

However, it is worth noting that as copyright subsists in the expression of an idea, it can possibly be protected where it is expressed in a manner that can warrant copyright protection. The Copyrights Compendium, where it excludes recipes, does provide an interesting exception. It states that “a recipe that creatively explains or depicts how or why to perform a particular activity may be copyrightable.”[10] Therefore, where a recipe is accompanied with “substantial literary expression in the form of an explanation or directions,” it may be able to be copyrighted.[11] This is possibly why many food recipes and bloggers introduce their recipes with lengthy descriptions and personal backstories that explain how they discovered that recipe, or the history leading to its culmination. In the case of Publications International Ltd. v. Meredith Corp.,[12] Meredith published a cookbook titled ‘Discover Dannon—50 Fabulous Recipes with Yogurt.’ Later, when Publications published twelve of these, Meredith alleged that her copyright had been infringed, as copyright subsisted in the “collective work” of the cookbook. The Court in this case observed that while recipes as statements of facts are not copyrightable, the commentary that assists them, such as “dishes with musings about the spiritual nature of cooking…suggestions for presentations, advice on wines to go with the meal” may be subject for copyright.[13] Furthermore, in the case of Feist Publications v. Rural Telephone Services Co., it was observed that the copyright protection of a factual compilation (here, suppose a cookbook full of recipes) is limited to the “particular selection or arrangement” and not the facts (here, the recipes) themselves.[14] Therefore, while it is settled that recipes cannot be copyrighted, the elements of it that can be protected are all those that lie outside the recipe itself.

Therefore, the law on whether recipes can be copyrighted takes a clear position now—they cannot be, unless accompanied by commentary, which only opens up the possibility of being copyrighted. It is worth noting that the case law on this issue has seen a very distinct evolution. One of the earliest cases (in 1924) that was a copyright dispute over a recipe, Fargo Mercantile Co. v. Brechet & Richter Co.,[15] held unequivocally that a recipe can very well be subject for copyright, holding that it is an original work of authorship that served to advance culinary art. The Court in this case did not address the argument of recipes being mere factual statements, processes and procedures. Of course, the position has since then considerably narrowed. In Lambing v. Godiva,[16] the plaintiff alleged that one of their recipes from an unpublished cookbook had been used to sell truffles by the defendant. The Court very curtly stated that recipes are not copyrightable, not addressing the argument of whether the presentation, illustration, and commentary accompanying them can be.

However, most cases which concern copyrightability of recipes ultimately discuss the issue of accompanying commentary, literary expression, illustrations, and presentation in a cookbook. The fact remains quite clear that recipes—in and of their own expression—are not subject for copyright. The Copyright Act, 1957, does not include recipes, or anything such, within the ambit of “works” that can be protected. Furthermore, as they are simply “ideas” and not expression, they cannot be copyrighted. In R.G. Anand v. Deluxe Films, the Supreme Court held that where a person had directed a movie which bore glaring similarities to the plaintiff’s play, no copyright had been infringed, as both were based on a similar idea, the manner of expression of which was vastly different for both. Furthermore, in Mansoob Haider v. Yashraj Films, the Bombay High Court reaffirmed that ideas are not copyrightable. While the facts differ, the underlying principle remains the same regardless—a recipe is an idea, and while many parties can have the same idea independent of each other, it is such that it cannot be copyrighted. Similar to the reasoning of U.S. case laws, the literary expression that accompanies a recipe could fall within the scope of the Copyright Act’s enlisted “works”.

The ‘Lay Observer Test’ as an alternative

The idea-expression dichotomy, however, can prove inadequate in protecting legitimate interests at times. Those who do go to great lengths and put in their time and effort to create novel recipes would wish to protect their culinary creations. Recipes cannot be copyrighted, and at the root of that statement is the idea-expression dichotomy. If recipes were subject for copyright, then the ‘average consumer test’ or the ‘lay observer test’ could prove as a valuable alternative tool to determine where there has been an infringement of copyright. Developed in Associated Electronic and Electrical Industries v. Sharp Tools,[17] the Karnataka High Court stated that “one of the surest and safest tests to determine “whether or not there has been a violation of copyright is to see if the reader, spectator or the viewer after having read or seen both works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.” Of course, this would prove a cumbersome exercise in determining copyright infringement of recipes—as a recipe cannot differ too much from one person to person, considering they are, ultimately, factual recitations.

Recipes protected as Trade Secrets

Recipes are often protected as trade secrets. Trade secrets law protects the idea behind the novel creation as well, the obvious entailment being that the recipe should remain a secret. Corporations such as KFC and Coca Cola protect their recipes, and many restaurants and chefs can avail the same. However, the recipe must be a novel creation in and of itself, and cannot be a regular staple that the general public would be privy to nonetheless. For instance, in the case of Buffets, Inc. v. Klinke,[18] the subject was a recipe of barbeque chicken and macaroni and cheese, which are quite common and widely known recipes in the American public, and therefore, did not warrant such protection as they were not novel creations of the plaintiff. Additionally, the process too, must be novel, as was held in the case of Li v. Shuman.

Conclusion

In conclusion, while the question of protection of recipes by copyright law is a complex one, the answer it yields is quite straightforward. Recipes, quite clearly, are mere factual recitations, or mere ideas in the sense of an ‘idea-expression’ dichotomy. While there is no conclusive proof to state that recipes can be protected for their listing of ingredients, or the process and instructions of how to make them, there is an open possibility (and a fair one, at that) to believe that when accompanied with significant literary expression, with illustrations, or in a specific order in a cookbook, the collective work can be protected by copyright.

Further References:

1. Samantha Levin, Are Recipes and Cookbooks Protected by Copyright?, Copyright Alliance (March 9, 2021). Available at: https://copyrightalliance.org/are-recipes-cookbooks-protected-by-copyright/.
2. Intellectual Property Protection for Recipes, on Lexology (July 25, 2019). Available at: https://www.lexology.com/library/detail.aspx?g=3741a5c0-f146-40ab-8f74-21427cd3b673.

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[1] The Copyright Act, 1957, §13(1).

[2] 17 U.S. Code § 102(b).

[3] ¶ 314.4, Compendium of U.S. Copyright Office Practices, available at: https://www.copyright.gov/comp3/docs/compendium.pdf.

[4] Circular 33, Works Not Protected by Copyrights, United States Copyright Office, available at: https://www.copyright.gov/circs/circ33.pdf.

[5] 379 F.2d 675 (1st Cir. 1967).

[6] Id.

[7] 323 F.3d 763 (9th Cir. 2003).

[8] Tomaydo-Tomahhdo, LLC v. Vozary, 629 F. App’x 658 (6th Cir. 2015).

[9] Id.

[10] Circular 33, Works Not Protected by Copyrights, United States Copyright Office, available at: https://www.copyright.gov/circs/circ33.pdf.

[11] See What Does Copyright Protect?, U.S. Copyright Office. Available at: https://www.copyright.gov/help/faq/faq-protect.html.

[12] 88 F. 3d 473 (7th Cir. 1996).

[13] Id.

[14] 499 US 340 (1991).

[15] 295 F. 823 (8th Cir. 1924).

[16] 142 F. 3d 434 (6th Cir. 1998).

[17] AIR 1991 Kant 406: 1991 (1) Kar LJ 482.

[18] 73 F.3d 965 (9th Cir. 1996).