Posting recipes

As the one who brought up the patent aspect, let me clarify:

My point was that the intellectual content, that is to say, the ingredients and procedure, of a recipe cannot be protected by copyright. If there is any intellectual property protection at all, it is via patent, not copyright.

As others have pointed out, this works in favor of posting recipes in this forum.

The whole point of a patent is that the details of the invention are disclosed for all to see. In return for disclosing the invention, the inventor is rewarded with a government-sanctioned monopoly on its use for a limited period of time, after which the idea becomes public domain, for anyone to use as they wish. So once the patent is granted, its details are public domain, and anyone can disclose it to anyone else. Publication of the contents of the patent is OK. USE of the patent is a completely different matter.

Recipes, as processes for making something, fall under patent law. There are only two ways that a recipe could be subject to copyright:

1) The text of the recipe is expressed in unique enough prose that it constitutes a distinct work of literary art.

2) Compilations of information, if involving extensive enough creative work, are themselves copyrightable, even if the individual items are information that is not subject to copyright.

The bottom line is that an individual recipe, presented in this forum, is extremely unlikely to be encumbered by any intellectual property problems.

-Paul W.

We've covered the legal points pretty well, I think. But there are human, courtesy and ethical issues that are probably much more important as a practical matter. "The Washington Post" made the point very well:

The ethics guidelines of the International Association of Culinary Professionals focus on giving proper attribution to recipes that are published or taught. The association advises using the words "adapted from," "based on" or "inspired by," depending on how much a recipe has been revised. ("Adapted from" is the phrasing favored by The Washington Post and many other newspaper food sections, which, along with culinary instructors, enjoy "fair use" of someone's creation for the purpose of teaching, news reporting, scholarship or research.) The only time a recipe should be printed without attribution, the association contends, is when it has been changed so substantially that it no longer resembles its source.

In cyberspace, however, there's some confusion about where to draw the line. Many Web sites carry warnings about posting "copyrighted" material, but most do not define what that means in cooking circles.

Rachel Rappaport, a Baltimore teacher, operates a blog called Coconut & Lime in which she shares recipes she has liked. She says her understanding -- a common one -- is that if she changes two or three ingredients in a recipe, it becomes her own and requires no attribution.

At the eGullet Society of Culinary Arts & Letters, an online site for epicures, copyright laws and courtesies are a constant topic of discussion, said founder Steven A. Shaw, a lawyer-turned-food writer. Shaw contends that posting a lengthy discussion of legal and ethical conduct, enforcing detailed membership requirements and constant monitoring of content -- including recipes -- keep his site from joining what he calls "the Wild West" of online copyright violations.

For amateur cooks who participate in the Pillsbury Bake-Off, the recipes they are passing off as their own had better be their own. Bake-Off officials perform "originality" searches on the 100 finalists, said Marlene Johnson, senior public relations manager. Contestants whose recipes do not have at least "several significant differences" from any found in a thorough search, she says, are disqualified.

Professional cooks who publish recipes that blatantly copy colleagues' work without attribution are often shunned or gossiped about, but even then, lawsuits are rare.

Washington chef and cookbook author Nora Pouillon said she would not sue if she saw her formula for, say, cherry clafoutis, on a Web site. She'd be the first to say that she based her recipe on versions of the French specialty featuring kirsch-soaked fruit that she had seen or eaten during her childhood in Austria.

Wonderful food, she points out, is more than a recipe. It also is the sum of a cook's experience, eye for detail and technique, plus the quality of the ingredients.

Pouillon said she's flattered if somebody passes along one of her recipes. "It's nice to get credit, but I really feel that a recipe is something to share," she said. On the other hand, if someone is a terrible cook, she said, she would rather that person not tell people that the formula for yam vichyssoise came from her.

Link.

[Robin Garr]

(you DO remember the attempt to do this sort of extortion against a private individual by a certain wine writer whose name shall not be mentioned?).

I do. Did anything ever come of it? I have a standard response for threats like that.

Eventually, no. I think it's actually discussed in a biography...

[Robin Garr]

Eventually, no.

Funny how many of those stories actually come out that way.

Bob, wouldn't the patent holder have a difficult time building a case, though (or even knowing he had one) if the infringer simply made the snickerdoodle for non-commercial enjoyment at home, without hope of profit or publicity?

Au contraire, Robin. The patent holder would have an open-and-shut case for infringement, once he or she discovered your use of the patent. Your only defense would be that the snickerdoodle patent was not valid in the first place.

This is the reward that the patent holder gets for disclosing the details of the invention. In return, the public, when the patent does expire, get to enjoy the invention without restrictions. The purpose of granting patents is to encourage invention disclosure. Before the existence of patents, the only way that an inventor could prevent competitors from exploiting an invention, without having incurred the expense of developing it in the first place, was to keep it a secret (what in intellectual property law is called a "trade secret"). The result was that much technology was lost due to inventors taking their secrets to their grave. Stradivarius's methods for manufacturing great violins, for example. Although there's lots of speculation, to this day we don't know exactly how he did it.

So society has decided to reward inventors for not keeping things a trade secret. You disclose the precise details of your invention, and in return, society will give you exclusive use of it for some number of years. After that, anyone can use it. Furthermore, if you DO decide instead to keep your invention secret, and someone else later independently makes the same discovery, but discloses and patents it, you lose the right to use the invention without the patent holder's permission--even though you discovered it first. That's the penalty for NOT patenting an invention, but instead deciding to keep it a trade secret.

Patent law says nothing about profit or publicity. It grants exclusive, and that really, really means EXCLUSIVE, rights to use the invention to the patent holder. NOBODY, for whatever reason, can use the invention without permission of the patent holder, until the term of the patent expires.

Now suppose that your hypothetical patented snickerdoodle is being made privately, at home, for personal enjoyment, without hope for profit or publicity. What damages has the infringement caused to the patent holder? Are they worth the hassle of litigation? Or the risk of a court deciding the patent wasn't valid after all? Those are practical considerations that might cause a patent holder to avoid bringing a court case against an infringer.

A patent must be proactively defended, so the patent holder, when made aware of your infringement, usually will send you a cease and desist letter saying, "Hey, you are infringing on my patent for snickerdoodles. Either we negotiate a license for your use of the patent, or you must stop using it at once." If, after that, you continue to infringe, then the patent holder could petition a court for an injunction prohibiting you from activities that infringe on the patent, and could ask the court to assign the legal costs he or she incurred in bringing that action to you, the guilty infringer.

A snickerdoodle patent holder might decide to grant a free non-commercial license to use the patent to those who do so for no personal gain, while charging a fee for commercial use. Thus, you might be able to negotiate a license to permit baking of snickerdoodles in your own kitchen free of charge, but Kraftco might have to pay through the nose to licensethe same technology to produce Kraft Brand Snickerknerdles (TM).

-Paul W.

Remember the experimental exception, so you're allowed to bake them and taste them, but not to enjoy them or eat any more than a taste.

The bottom line is that an individual recipe, presented in this forum, is extremely unlikely to be encumbered by any intellectual property problems.

-Paul W.

Amen.

And, everyone, please watch your step discussing my snickerdoodles (patent pending). I'm in a litigious mood and need some money for a new car.