How does copyright / intellectual property work on recipes?

February 14, 2005 6:37 AM

How does copyright / intellectual property work on recipes? [+]

I've been loving, using and modifying Washington Post food chat host Kim O'Donnell's chocolate truffle recipe for a couple of years now. I still use the same basic proportions of chocolate and cream (well, a little more cream, really) and the same basic techniques that she provides in her instruction (I don't refer to it anymore, as I'm familiar with the technique now), but have heavily adapted the recipe to new and different flavourings and coatings. A few people have asked me to make the truffles for them for things like weddings and parties, and offered to pay. Can I use this recipe in a commercial context or are there IP rights I would be violating? Does the fact that I've changed it fairly significantly make a difference? My only serious knowledge of copyright comes from working with knitting patterns where I'd probably be okay because of the significant changes made.

posted by jacquilynne to food & drink (16 comments total)

I'm not a lawyer, but I'm pretty sure recipes can't be copyrighted. The exact written form can be copyrighted, and as it's a process I suppose it could be patented, but neither seems to apply here. Go ahead, I don't see this being any problem, even if you were publishing your recipe.
posted by fvw at 6:43 AM on February 14, 2005

Recipes cannot be copyrighted. This page from the US Copyright Office is directly on point for your question.
posted by thewittyname at 6:46 AM on February 14, 2005

Essentially, trying to copyright a recipe would be like trying to copyright Bernoulli's equation and then demanding royalties from every airplane manufacturer.
posted by thewittyname at 6:49 AM on February 14, 2005

Well there goes my latest get rich quick scheme...
posted by grouse at 7:30 AM on February 14, 2005

Thanks, witty. Something I should have mentioned in the original post, but didn't think of, I'm in Canada. Does the US rule apply because it's a US recipe? Or would I also have to look at Canada's probably, but not necessarily, similar copyright regulations?
posted by jacquilynne at 7:35 AM on February 14, 2005

In any event, copyright protects the expression, not the idea. Even if it could be copyrighted (which it can't) you'd still be able to use the ideas (the actual proportions of food) therein. A copyright claim against you for your use of ideas is absurd since the purpose of copyright is to incentivize the spread and use of ideas.

Not sure on patents but they'd have to file with the patent office & prove sufficient originality, so my sense is they wouldn't be able to or bother.
posted by lorrer at 7:36 AM on February 14, 2005

Canadian copyright law applies, but the result is the same. The Canadian Intellectual Property Office has a FAQ, which indicates that "methods" are not copyrightable. Recipes are "methods" of creating food, and therefore, are not protected by IP laws.
posted by thewittyname at 7:44 AM on February 14, 2005

thewittyname: The page you linked goes on to explain how recipes can be copyrighted (but the ingredients listing alone cannot). But that probably doesn't matter anyhow:

jacquilynne: Commercial undertakings ought to be backed by legal advice rather than Internet opinions, but: Basically, you're wondering about the cooking equivalent of performance rights ("can I use this recipe and sell the results") while the first few answers here are talking about the cooking equivalent of mechanical or graphic rights ("can I copy this recipe"). Keep the difference in mind.

My own hunch is that regardless of the copyright status of a particular expression of a recipe the "performance rights" are not restricted (so that even without modification you could sell the truffles), based on anecdotes I've heard about how chefs try to keep control of their signature dishes. (But I'm not a lawyer, and this isn't legal advice.)
posted by mendel at 7:50 AM on February 14, 2005

Here's how I learned it as a food editor: The actual recipe proportions (2 T of this, 3 c of that) and ingredients cannot be copyrighted.

What CAN be copyrighted is the surrounding text, the part where someone may introduce a recipe by saying "My grandmother taught me to make these cookies in her stone farmhouse in Burgundy..." etc. But anyone who's going to steal that kind of detail has problems anyway.

And cooks can still get dogged for using exact recipes, as when Martha Stewart got started and was accused of using Julia Child's recipes with no changes. But that doesn't seem to be your problem here.
posted by GaelFC at 7:52 AM on February 14, 2005

Thanks, all!

This is never going to be a rip-roaring business for me, but I didn't want to do anything unfair. I mean, obviously I'd have gotten away with it even if it was a problem, but in this case, I'd rather be respectful.
posted by jacquilynne at 7:58 AM on February 14, 2005

Just curious, did you really think she made up the truffle recipe all by herself? Everything comes from somewhere else, which is the fundamental problem with copyrights as they're being used today (that is, to "protect" things indefinitely). But, politics aside, she didn't just create the recipe out of thin air.
posted by odinsdream at 9:30 AM on February 14, 2005

No, of course she didn't. But she's a professional chef and foodwriter. I assume she was familiar with the issues of copyright related to her publishing of the recipe and whether she'd gone sufficiently far away from whatever source she was cribbing from to claim it as her own. I'm not a professional chef, and I wasn't sure what was required for me to do the same.
posted by jacquilynne at 9:36 AM on February 14, 2005

Now that your question has been answered, can you post the recipe?
posted by CunningLinguist at 10:58 AM on February 14, 2005

For the sake of completeness: Copyright law, in both the US and Canada, prohibits the copyrighting of "ideas," but does protect the expression of those ideas. Therefore, you cannot copyright the idea of a tragic romance between star-crossed lovers, but you can copyright the novel you write that uses that plot device.

Recipes present somewhat of a difficulty in that they are both ideas and expressions. You cannot copyright the idea of chocolate cake, but you could argue that a specific cake recipe could be. However, this would let an industrious baker have a de facto monopoly on cake baking if he simply published all the possible variations of cake recipes.

To prevent this absurdity, courts have developed what is called the "merger doctrine." When an idea can only be expressed in one way, idea and expression merge and copyright protection falls away. To put it another way, the idea of a chocolate cake requires certain ingredients, so therefore, you can't copyright them. (I know that recipes are almost infinitely variable, but courts can't be bothered, and it's a settled point of law that basic recipes are always in the public domain)

This does not mean, however, that all recipes are protected. If a recipe is intentionally kept a secret (like the recipe for Coke), then you cannot use it if you somehow get your hands on it. Obviously, however, this situation does not apply to you.
posted by thewittyname at 11:39 AM on February 14, 2005

Since requests for it are coming fast and furious and from all angles, the recipe is linked on this page.

That's Kim's base recipe and techniques video. Mix it up a lot when it comes to flavours finding things you like. Leave out the espresso powder if, like me, you despise coffee. Use good chocolate, like Callebaut, but skip the really, really expensive stuff like El Rey, it's not worth the added expense because the cream and flavourings mask the things that make that kind of chocolate such a hedonistic pleasure. While I prefer dark, dark, dark chocolate, most of the people who eat them prefer a lighter chocolate, so I aim for 50% cocoa solids. In Callebaut, that's what they call 'dark'.

That 'splash' of liquor accounts for about 2 ounces of extra liquid in the recipe, so whatever you flavour with, you'll want to take into account that's how much liquid you want to add. I don't tend to cook with a lot of alcohol, just because my mother is allergic.

Current favourite flavours include:
- pomegranate (ounce of Lebanese pomegranate concentrate, ounce of fresh pomegranate juice to liven up the flavour), pour an additional half an ounce of pomegranate juice over 2/3 of a cup of sugar and mix together to use for rolling (do this early so the sugar has a chance to dry a bit, mix every half an hour or so to keep it from clumping).
- vanilla, scrape two vanilla pods into the cream and stew the pods as you warm the cream. Pour an ounce of vanilla over 2/3 of a cup of sugar and mix together to use for rolling (see warning above about drying). In this case, you'll definitely want to add some extra liquid to the mix to keep it from setting hard. You can also just use 2 ounces of vanilla extract, instead of pods.
- ginger, add about 2 tablespoons of minced ginger from a jar to the cream while heating. I just roll these ones in plain sugar and then, if I have any on hand, press a small piece of candied ginger in the top. I add about an ounce of extra cream with these.

I made a diet version this weekend that uses fat free condensed milk instead of cream, and is covered in splenda and cinnamon instead of sugar. They're actually pretty decent, and you can sub the condensed milk one for one for the cream.

Kim recommends either using a spoon or melon baller to dish out your chocolate, or putting it in a pastry bag. The former is messy and annoying. The latter requires a pastry bag. What I do is pour it, while still warm, into a ziploc bag and toss it in the fridge. I periodically pick it up and squish it around to keep it cooling evenly. Then when it's set enough to hold shape, I cut the corner off the ziploc bag and squeeze it out through there, cutting it with a knife when I have the size piece I want. Much less messy, much faster cooling in the fridge, though a bit expensive in ziplob baggies, since you keep cutting holes in them.

thewittyname, for answering greatness, I have a box of truffles from the batch I made this weekend with your name on it. My email address is in my profile, just send me a snail mail addie.
posted by jacquilynne at 12:08 PM on February 14, 2005

A few people have asked me to make the truffles for them for things like weddings and parties, and offered to pay.

Before you go into the food business, no matter how small, be aware that (if Canada is like the US in this regard, which I'd bet is the case) you need a license to sell food, and that in turn requires use of an approved kitchen, which generally rules out food preparation at home. (In the US, there are commercial businesses which rent time/space in licensed kitchens.) And to sell food, you probably need insurance, a regular business license, and who knows what else, if you want to be legal.
posted by WestCoaster at 4:45 PM on February 17, 2005