Posting recipes

I used to be nervy about posting a recipe from a cookbook because of copyright issues, until I had a discussion with Jenise, and she advised me that recipes aren't copyrighted anyway, and that if you post with credit to the author, then that's definitely ok. However, I've since been reading some conflicting comments on other boards, and wondered what others thought about the issue ? Please - it's just a question, not intended to inflame any tempers, and I'm firmly of the "If Jenise says it's ok, then it must be" camp - but I was curious about how other regulars felt about it ....

I'm in agreement with Jenise. It has been held (I can find citations if I get time) that recipes themselves are not copyrightable, being basically a list and a set of directions. However, all the other commentary/stories etc around them seems to be protected. It gets murky.

I hang out with a large group of other artists and there are ENDLESS discussions of copyright issues, especially about the Fair Use standard.

This all varies too, Celia, from country to country.

Fair Use is a fuzzy thing, something lawyers love because of the potential for lots of billable hours. The recipes aren't copyrighted, but the prose is, from my understanding. One has the choice of:

1. Write the author and get permission.

or

2. Reword the prose.

or

3. Post it anyway, give attribution, and hope that either Fair Use applies (and good luck paying the legal fees necessary to prevail) or that the author is smart enough to realize that this sort of excerpting is actually positive promotion and conducive to sales.

Hmmm...so Stuart, you're saying posting a recipe verbatim is risky ? That if the recipe says "beat eggs one at a time", we should be paraphrasing to read "mix in eggs one by one" ? This is the sort of stuff I was asking about. What do others think ? I guess if Robin and Jenise were concerned though, they'd exercise their unilateral power to delete posts...

That's my understanding, but I'd much rather hear something from Bob Ross or even Robin. I'm the opposite of a lawyer.

In my real-world experience, if it gets to a legal issue, you've already lost regardless of the merits. Litigation is crushingly expensive for individuals, witness the extortionate tactics of the RIAA. But I have never heard of a cookbook author suing an individual for nonprofit posting of an attributed recipe. The only person here making money (not from the forum, of course, but from the site) is Robin; he's a pretty smart, savvy, and experienced guy, and he doesn't seem to be worried.

FWIW: U.S. Copyright Office - Recipes.

Since we all stem from the same little ball of subatomic particles which exploded in the Big Bang and is still expanding to create our universe, how can anyone own anything?

What an afternoon! This bit of topical trivia just in from Planet Dumbo: Seinfelds Sued

Comedian Jerry Seinfeld and his cookbook author wife Jessica have been sued by Missy Chase Lapine, who has accused the pair of copyright infringement and defamation.

Chef and baby-products mogul Lapine claims the recipes in Jessica Seinfeld's best selling cookbook "Deceptively Delicious" are "brazenly plagiarized" from those in her own book, "The Sneaky Chef: Simple Strategies For Hiding Healthy Foods In Kids' Favorite Meals," about hiding healthy ingredients in foods children will eat.

The comic himself -- who branded Lapine a "wacko" during a rant on "The Late Show" last year -- has been accused of "malicious defamation" and named as a defendant.

The lawsuit, filed Monday with the Federal District Court in Manhattan seeks unspecified damages.

Recipes are not copyrightable--they're nothing but lists of ingredients. The author's wording of the instructions is, however.

Fair use is fuzzy; there's no set number of words. But a relatively short excerpt that's attributed should not cause any trouble.

From the U.S. Copyright Office:

Mere listings of ingredients as in recipes, formulas, compounds or prescriptions are not subject to copyright protection. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a combination of recipes, as in a cookbook, there may be a basis for copyright protection.

Protection under the copyright law (title 17 of the United States Code, section 102) extends only to “original works of authorship” that are fixed in a tangible form (a copy). “Original” means merely that the author produced the work by his own intellectual effort, as distinguished from copying an existing work. Copyright protection may extend to a description, explanation, or illustration, assuming that the requirements of the copyright law are met.

Not unlike Chess publications. Moves of a game can be copied and re-printed. However, an annotator's comments can be copyrighted.

Larry has quoted the relevant US copyright law; remember that the laws of different countries differ on copyright. Also consider that a recipe may be patented, and that patent law varies from country to country. Note that even the US copyright law isn't crystal clear: when do the directions become "substantial" enough to be protected? And, all of this is complicated by the fact we are posting online, where the conflict of laws on copyright and patents is even more unsettled.

There's a great article on the entire subject at http://www.foodandwine.com/articles/new ... pe-burglar

My own view is the same as Jenise's: copy the list of ingredients and the directions, attribute to the author and the book, link to a source where the book or article can be found, if relatively easy to find, and post. So long as Robin agrees, and I think he should, WLP, WLDG, and FLDG should be fine. And I'd be glad to help in any legal defense of a challenge as long as those guidelines are respected.

Regards, Bob

PS: One observation: it's astonishing on how many recipes can be found online through GoogleBooks, many over a hundred years old. Many inches of deathless food prep instructions have been well and truly anticipated for a long, long time. B.

My own view is the same as Jenise's: copy the list of ingredients and the directions, attribute to the author and the book, link to a source where the book or article can be found, if relatively easy to find, and post. So long as Robin agrees, and I think he should, WLP, WLDG, and FLDG should be fine. And I'd be glad to help in any legal defense of a challenge as long as those guidelines are respected.

Yep, I feel better now. Thanks Bob.

[Robin Garr]

I used to be nervy about posting a recipe from a cookbook because of copyright issues, until I had a discussion with Jenise, and she advised me that recipes aren't copyrighted anyway, and that if you post with credit to the author, then that's definitely ok. However, I've since been reading some conflicting comments on other boards, and wondered what others thought about the issue ? Please - it's just a question, not intended to inflame any tempers, and I'm firmly of the "If Jenise says it's ok, then it must be" camp - but I was curious about how other regulars felt about it ....

Sorry to come to this late with the Official Forum Policy, but I'm glad to see that the forumites have already come to the correct conclusion: It has long been held that recipes themselves - "mere compilations of ingredients" are not copyrightable and may be quoted freely. This is NOT a matter of "fair use," which is a completely different issue.

That being said, the point has also been correctly made that citing the source of a recipe is a good thing to do, ethical and correct. I would always recommend doing so if you copy a recipe more-or-less exactly, not because you have to but because it's ethical. If you modify the recipe considerably or merely use it for inspiration, it becomes a judgement call.

And of course, as Stuart points out, anybody can sue you for any reason, and this can be a hassle if you feel a need to retain legal counsel to defend it. But in all honesty, the mere posting of the "compilation" portion of a recipe is not even a close legal issue. Quoting the prose around it is much more of a concern, though. I'd avoid it, or use only very brief excerpts on the assumption that a trivial portion is "fair use."

I've never been able to use a recipe without making some changes; hence, I've never posted a someone else's recipe verbatim. But I think I'll pay more attention to giving credit where due.

At least under US law, recipes, being lists of ingredients and procedures for producing something, fall under patent rather than copyright. A recipe CAN be patented, although very few cooking recipes are.

As the relevant part of copyright law that was quoted here said, a particular expression of the idea embodied in the recipe can be copyrighted if it is an extensive enough deviation from the mere list of ingredients and procedures to constitute individual and unique expression.

Ethically, I think that it is only fair and courteous to credit the originator of a recipe when you post one here, if you know who the author is.

-Paul W.

Paul, could you provide a U.S. Govt. link to patenting recipes? I provided info from the U.S. Copyright Office concerning recipes: http://www.copyright.gov/help/faq/faq-protect.html

Paul, could you provide a U.S. Govt. link to patenting recipes? I provided info from the U.S. Copyright Office concerning recipes: http://www.copyright.gov/help/faq/faq-protect.html

 See my post above. The link is there.

Here is your link. Where's "patent," relating to recipes?

What Does Copyright Protect?

Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. See Circular 1, Copyright Basics, section "What Works Are Protected."

How do I protect my recipe?

A mere listing of ingredients is not protected under copyright law. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a collection of recipes as in a cookbook, there may be a basis for copyright protection. Note that if you have secret ingredients to a recipe that you do not wish to be revealed, you should not submit your recipe for registration, because applications and deposit copies are public records. See FL 122, Recipes.


U.S. Copyright Office
101 Independence Avenue SE
Washington, DC 20559-6000
(202) 707-3000

Revised: 26-Feb-2007

FL-122

Mere listings of ingredients as in recipes, formulas, compounds or prescriptions are not subject to copyright protection. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a combination of recipes, as in a cookbook, there may be a basis for copyright protection.

Protection under the copyright law (title 17 of the United States Code, section 102) extends only to “original works of authorship” that are fixed in a tangible form (a copy). “Original” means merely that the author produced the work by his own intellectual effort, as distinguished from copying an existing work. Copyright protection may extend to a description, explanation, or illustration, assuming that the requirements of the copyright law are met.

To register the directions or instructions of a recipe or cookbook, send the following three elements in the same envelope or package to the Library of Congress, Copyright Office, 101 Independence Avenue SE, Washington, DC 20559-6000.

A completed application Form TX;
A nonrefundable filing fee (Current Fees)
A nonreturnable deposit of the work. The deposit requirements depend on whether the work has been published at the time of registration:
If the work is unpublished, one complete copy.
If the work was first published in the United States on or after January 1, 1978, two complete copies of the best edition.
If the work was first published in the United States before January 1, 1978, two complete copies as first published.
If the work was first published outside the United States, one complete copy of the work as first published.
If the work is a contribution to a collective work, and published after January 1, 1978, one complete copy of the best edition of the collective work or a photocopy of the contribution itself as it was published in the collective work.
Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form. Copyright protection does not extend to names, titles, short phrases, ideas, systems, or methods.

*NOTE: Copyright Office fees are subject to change. For current fees, please check the Copyright Office website, write the Copyright Office, or call (202) 707-3000.


FL-122, Revised July 2006

Paul, could you provide a U.S. Govt. link to patenting recipes? I provided info from the U.S. Copyright Office concerning recipes: http://www.copyright.gov/help/faq/faq-protect.html

Jumping in Larry. A process can be patented if it meets the five basic tests for a patent; there are many formulations, but here's a good list with citations: http://www.ipwatchdog.com/patentability ... ments.html

In the trade, there are two types of patents, so called subject patents and so called process or design patents. The practical difference between them is that subject patents tend to be much stronger than process patents -- it is tougher to design around a well designed subject patent than it is to design around a well designed process patents.

But, there are many very strong process patents. Mobil, for example, had a very strong process patent for cracking gasoline; even Exxon wasn't able to design around it, and there is some thought that Exxon acquired Mobil to avoid continuing to pay millions and millions a year for using the Mobil process and its patented improvements.

It's very possible to get food and food recipe patents; take a look at http://www.google.com/patents?id=9QkgAA ... ood+recipe, for example. Go to Google Patents and search on food +recipe, and you'll find many, many more.

Caveat: I'm not a patent lawyer, but I've been involved in several major patent litigations, and represented a number of clients for whom I worked on licenses for and to process patents. Read my comments as only generally true.

Yeah, but do you play one on TV?

I had perused the IPWatchDog site earlier and here's what they say about patentibility: http://www.ipwatchdog.com/recipes.html#f2

It's my understanding that it's difficult to patent a recipe and that it has to be something rather novel and not recipes that are just a list of ingredients like your grandmother's snickerdoodles. Your examples below demonstrate the point. They are not the type of recipes discussed on FLDG.

Patent number: 5422132

Abstract
This specification discloses all natural, low-fat baked foods (such as cookies, cakes, and brownies) and methods of making and baking them utilize a mixture of flour, high amylose starch, and prune as a flour, fat, and egg yolk substitute. They may also include high amylopectin starch. They are, in addition low in sodium and include no mono- or diglycerides.

Filing date: Aug 12, 1993
Issue date: Jun 6, 1995
Inventors: Jeffrey A. Caden, Mark Wolke


OTHER EXAMPLES:

Patent Number Title Issue date

4405647 Method of compacting chewing gum base Sep 20, 1983
5104669 Microwaveable flour-starched based food product Apr 14, 1992
5260087 Fat and egg yolk substitute for use in baking and process for using substitute Nov 9, 1993

Patent Number Title Issue date

5484622 Low fat food product Jan 16, 1996
5688548 Non-fat baking ingredient and method of making Nov 18, 1997
5773071 Non-fat baking ingredient Jun 30, 1998

I agree that the recipe has to be novel -- grandma probably anticipated the art with her snickerdoodle. But some of the food patents seem pretty close:


United States Patent 5425527

http://www.freepatentsonline.com/5425527.html

Abstract:
An edible, hand held food product that may be used as a container for ice cream and other frozen confections is formed from a shell of baked cookie dough. Unlike traditional wafer ice cream cones, the thickness of the wall of the ice cream cone of the present invention is at least approximately 1/8" thick. The cookie dough that is used to produce the ice cream cone of the present invention is normal cookie batter comprised of a liquid, eggs, shortening, flour, sugar, and dry flavoring ingredients, with a reduced amount of leavening agent (i.e. baking powder, baking soda or cream or tartar). The leavening agent is approximately 10-60% by volume of the amount of leavening agent used in normal cookie dough recipes.

Larry, I don't think we are disagreeing, really -- the basic point is that we could be discussing a patented recipe on FLDG without knowing it -- people wouldn't normally check. And, the key point is that simply repeating a patented recipe and discussing it isn't an infringement of the patent -- that's the price the patent hold pays for getting the patent. The patented recipe has to be so specific that you can actually make the snickerdoodle following what is spelled out in the patented recipe. That way, once the patent expires everyone is free to use the snickerdoodle recipe, and can follow the recipe to do so.

The value of the patent is that anyone following it to make a snickerdoodle would be infringing the patent. And anyone encouraging the cook to do so, and anyone actually eating the snickerdoodle, would be contributory infringers.

The legal position is clear -- there is no problem discussing a patented recipe here. And, there is no legal obligation for anyone to reveal that a recipe is patented. It's up to the cooks among to check the patent status out if they are worried that their snickerdoodles become so popular that the patent holder would come after them.

Regards, Bob

[Robin Garr]

The value of the patent is that anyone following it to make a snickerdoodle would be infringing the patent. And anyone encouraging the cook to do so, and anyone actually eating the snickerdoodle, would be contributory infringers.

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?

Robin, usually the idea is not to build a winnable case- a granted patent is presumed valid, no matter how stupid it is or how much prior art you can find. The value is that the patent holder can, without fear of sanctions, file a suit, placing the legal burden on you to defend it. (I am using "you" as the general term)

So, irrespective of the winnability of the suit or the ultimate validity of the patent, once you have had a suit filed against you and are faced with paying a $40-50,000 retainer to even begin to defend yourself (without any hope whatever of recovery of fees), suddenly the patent holder's shakedown price of (say) $15,000 in go-away money starts to look pretty good.

I am sadly all too familiar with this. If you start with the idea that our legal system is irredeemably corrupt and is structured primarily for the financial and power benefit of lawyers, you'll generally arrive at the right conclusion.

[Robin Garr]

Robin, usually the idea is not to build a winnable case- a granted patent is presumed valid, no matter how stupid it is or how much prior art you can find. ... I am sadly all too familiar with this. If you start with the idea that our legal system is irredeemably corrupt and is structured primarily for the financial and power benefit of lawyers, you'll generally arrive at the right conclusion.

I'm still thinking, though, that these excesses, as outrageous as they may be, occur in general in the commercial arena. If I make a snickerdoodle at home and share it with my family, I think the chances of the patent holder finding out are slim to none, and his chances of recovering a judgment (or even go-away money) aren't much greater.

If I undertake to sell the snickerdoodle at my coffee shop, this raises the issue to a whole new level.

(I don't agree that the system is irredemably corrupt, either, but that's another debate for another day.)

Actually, this is exactly the approach the RIAA has taken- extorting private individuals who can't afford litigation, regardless of the merits or demerits of the case.

I agree, you have to be caught first, and home baking of snickerdoodles is unlikely to attract any attention. But if I bake snickerdoodles and post a nice picture here for my dear friends to see, that could certainly attract the attention of an ambulance-chaser or a litigious rich bully (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?).

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?

Oh, he wouldn't have any trouble building the case assuming he has a valid patent -- as you know there are lots of ways to invalidate a patent, including anticipation, fraud on the patent office, antitrust violations, etc. Been there, done that.

But assuming the patent is valid, then it's a matter of proof -- did the home cook actually use the recipe to make the dish in question. Remember, it's an infringement to simply use the patented process. Profit and publicity don't come into it -- say the cook is turned in by his wife during a violent divorce proceeding and provides all the necessary elements of the case, with videotapes taken through the home security system, for example.

There would be problems of proof, of course, but forget profit and publicity. We' went after folks who used our patented processes simply to be in a position some day to use the process after the patent expired. They argued it was experimental use, but it is very hard to prove pure science in action. In many cases, nine to twelve months of lead time can cost the patent holder millions of dollars.

Nothing in my response contradicts Stuart's different formulation -- the in terrorem effect can be real. People still put "Patent Pending" on devices when they have relatively little chance of getting a valid patent in hopes of scaring off competitors.

Stuart and I could go on and on with this subject, I'm sure.

The key point is that even if a recipe is patented, nothing at all prevents us from discussing the recipe on FLDG.