What's the deal with copyrights and recipes?

June 6, 2009 7:19 AM

If I want to publish Obama's recipe for chilli in my cookbook, do I need Obama's permission? How about Elvis Presley's Peanut Butter Sandwich? You can find all these recipes on internet for free, do I need permission if I want to include them in my cookbook?
posted by leigh1 to food & drink (17 comments total)

Not a full answer, but the fact you can "find it on the Internet for free" is not relevant here, and you'd be well-served to remove that idea from your brain.

I could post anything on the Internet and "let" you download it for free, after all. I can find pretty much any TV show or movie or music album on the internet "for free", too. But you have no idea who the copyright holder is, or what you may be violating, just because you "found" something.
posted by rokusan at 7:39 AM on June 6

Totally not legal advice, but my wife told me that recipes can't be copyrighted. I have no idea whether she knew what she was talking about.
posted by jayder at 7:41 AM on June 6

Well, Google, Esq., seems to agree with my wife.
posted by jayder at 7:42 AM on June 6

It seems to be more of an issue of ethics rather than any threat of legal action.
posted by Juliet Banana at 7:47 AM on June 6

Yes, recipes - as they are a list of facts - can't be copyright. But but but, if there's descriptive text with that recipe that text can be copyright (and probably is). Example:

2 cups flour
1 tablespoon nutmeg
1 pinch mealworm dust
1 gallon water

Mix the water with the dust and then add in the flour, saying a chant to Nyarlathotep as you do. Then freeze for six days and serve over a bed of lettuce.

The first part can't be copyright; the second part is.
posted by the dief at 7:50 AM on June 6 [9 favorites has favorites]

I came to say what the dief said: the list of facts that make up a recipe can't be copyrighted, but the wording in the recipe is protected.
posted by muddgirl at 7:57 AM on June 6 [1 favorite has favorites]

If he came up with it while "on the job", so to speak (and it's not classified) wouldn't it be public domain, anyway?
posted by dunkadunc at 7:58 AM on June 6

Read the section starting at "You Can't Rip Off Julia Child". It claims that even the list of steps to combine ingredients isn't protected.
posted by muddgirl at 8:00 AM on June 6

I think that intention to profit is an important distinction. If you plan to make money from publishing a cookbook filled with other people's recipes...
posted by Billegible at 8:14 AM on June 6

I think that intention to profit is an important distinction.

Morally, maybe, but not in regard to copyright law.
posted by martinrebas at 8:39 AM on June 6

Read the section starting at "You Can't Rip Off Julia Child". It claims that even the list of steps to combine ingredients isn't protected.

The steps aren't subject to copyright. A particular piece of text describing or explaining them can be.

(Analogy for nerds: think of it like a chemistry textbook. The laws of physics, the periodic table, the steps involved in performing basic reactions, the uses to which compounds can be put — those are straight up facts, and not subject to copyright. But when an author describes these facts in his own words, those words become copyrightable — which is why chemistry textbooks can be sold for an arm and a leg even though they contain nothing but widely known facts.)
posted by nebulawindphone at 8:59 AM on June 6

I am a lawyer, but I am not your lawyer. I can confirm what everyone else has told you. The descriptive text in a given recipe can be copyrighted, but the actual techniques/ingredients/etc. cannot be. So if you describe the steps to make the chili in your own words, rather than copying the words from the internet, you should be fine.
posted by kingjoeshmoe at 10:09 AM on June 6

Also, to clarify, I do NOT mean it is okay to take each step and reword it a little. Make the chili enough times that you know how to make it by heart. That's food, not a literary work. Now describe how you made that food.
posted by kingjoeshmoe at 10:15 AM on June 6 [3 favorites has favorites]

Note that there is also a line of cases concerning rules of games, rules of contests, forms, etc, which hold that even the specific text of a particular wording cannot be copyrighted when there is only one way, or are only a few ways, of expressing a particular idea. Copyright protects expressions, not ideas, and if protecting a particular expression threatens to protect the idea itself, copyright does not apply. The classic case in the genre is Morrissey v. Procter & Gamble Co., 379 F.2d 675 (1st Cir. 1967), which rejected a copyright in the rules to a sweepstakes. From the opinion (citations omitted):

Nonetheless, we must hold for the defendant. When the uncopyrightable subject matter is very narrow, so that "the topic necessarily requires," if not only one form of expression, at best only a limited number, to permit copyrighting would mean that a party or parties, by copyrighting a mere handful of forms, could exhaust all possibilities of future use of the substance. In such circumstances it does not seem accurate to say that any particular form of expression comes from the subject matter. However, it is necessary to say that the subject matter would be appropriated by permitting the copyrighting of its expression. We cannot recognize copyright as a game of chess in which the public can be checkmated.

I don't know of cases applying this theory to recipes (nor have I looked for them), but I could imagine a persuasive argument that the steps in a recipe are so descriptive and so limited in creativity that they cannot be protected, or at best are protected only with a thin copyright applying only to the exact wording used in the original recipe. Cf. Continental Casualty Co. v. Beardsley, 253 F.2d 702 (2d. Cir. 1958) (copyright existed in insurance forms, but with scope of copyright limited to that needed to prevent copying of the language without restricting copying of the idea, so that copyright was essentially limited to exact text of the forms).

As I said, I don't know if cases have applied this line of cases to recipes; research would be required to be certain.

Also a lawyer; also not your lawyer. This is not legal advice; consult competent counsel.
posted by raf at 11:12 AM on June 6 [1 favorite has favorites]

Thank you all so much for your research and links you provided; I will definitely consult a lawyer before jumping into this.
posted by leigh1 at 11:39 AM on June 6

Take creaming butter and sugar, for example. Butter and sugar are sufficiently creamed when they reach point x. How "point x" is described, however, could be copyrighted, e.g., "until the spinning of the paddle sounds like the gentle hum of an E-flat" or "until it's the color of the first yellow rose of spring." But "cream butter and sugar until light and fluffy" isn't copyrightable, that's just how it's done.

A recipe is a list of facts and techniques. How an author/cook describes those facts and techniques in order to best relay them to the public, however, could be copyrightable.

Take the "facts" from Obama's recipe, make it several times (any cookbook author who hasn't made the recipes in their book at least twice should be hanged), and then decide the best way to explain to other people how to make it. If you can't come up with a clearer explanation, or an explanation better suited to whatever niche or demographic of person you're trying to reach, then you don't really have any reason to republish it.
posted by thebazilist at 3:34 PM on June 6

From the examples you gave (Elvis and Obama), it sounds like you are making a celebrity cookbook. If this is the case, you may be able to use their recipes, as noted above, but might want to further investigate whether or not you can use their names.

I suspect if I made cookbook with recipes called Julia Child's Succotash, Gordon Ramsay's Roast Chicken and Anthony Bourdain's Lamb Chops, I would be getting calls from a few lawyers.
posted by consummate dilettante at 10:12 PM on June 6