Best Practices for Cooking and Cocktails and Copyright?
November 7, 2018 10:31 AM   Subscribe

I'm a graphic designer working on a cookbook/activity book with a client/friend that I've worked with several times before, and I'm trying to figure out how copyright law may affect this project and what the best style of attribution may be.

His current piece is a self-published themed cocktail guide / recipe book that's peppered with fun facts and a few longer sections with activities (think along the lines of : "Summer Refreshments for Indoors and Out"). It sounds like he intends to sell this book online and in a few local coffee shops.

Many of the cocktails and recipes are attributed as being from historical sources like Old Mr. Boston or even older manuals from the 1800s, but many are also from modern bars and recent cocktail guides. Based on the chapter introductions in the book, the drink ingredients are the same and most of the descriptions have been rewritten, except for some 1800s/1930s recipes. Based on my cursory research, this might be okay copyright-wise, but is it deceptive to have rewritten recipe instructions mixed in with copied recipes without any differentiation between the two?

I doubt that the client has done much original work in making the cocktail recipes in real life, but the overall structure of the book does feel like a fresh collection of various things. Each recipe includes an author name or source, and there's a simple bibliography at the end. Is that enough?
posted by sometimes_a_pony to Law & Government (10 answers total)
Isn’t this between the author and their publisher (and perhaps their legal team)? Not intending any offense, I’m not sure why you are asking, being the graphic designer on the job.

As long as everything is attributed as best it can be, I don’t see an ethical problem, but the only way this can be definitively answered as a legal issue is in court. Other than that, it’s all just opinion on how a potential court case would come out, though some opinions are better informed than others. I’d personally trust the publisher over strangers on the internet or a graphic designer, ymmv.
posted by SaltySalticid at 10:37 AM on November 7, 2018

This is a small scale self-published project.
posted by sometimes_a_pony at 10:40 AM on November 7, 2018

One cannot copyright content*, only wording. So, legally, if the client has re-written the recipes, the re-written recipes are not protected by copyright (in fact, the client can copyright the new material). Things published before 1930 are out of copyright anyway, so the client can leave them alone. Once out of copyright, anyone can do what they please with written material, including pretending they came up with it themselves. So if you're concerned about legality, you needn't be. Your post hints that you're worried about deceptiveness, even if it's legal, which is a moral question. You must answer that for yourself.

* One can patent content, such as a chemical formula or a recipe. But patents have a much shorter life than copyright, and it's unlikely that someone would attempt to patent a drink recipe — they probably stole it from someone else anyway. One can also register a recipe as a trade secret, but if your friend is publishing it, it doesn't look like it's much of a secret.
posted by ubiquity at 10:54 AM on November 7, 2018 [3 favorites]

Cutoff date for the public domain is 1923 ( 8 weeks, works published in 1923 will all be in the public domain in the US), but works before 1963 that weren't re-registered are also in the public domain. If the original content is in the public domain, you can do anything you want with it - rephrase or republish without changes, your choice.

As mentioned, ideas and facts aren't copyrightable, and that includes recipes. If you rephrase the recipes, that's new copyrightable content. There's some debate about this (the cookbook world gets into some tense arguments) and whether it's possible to rephrase the "list" part of ingredients in a way that makes them copyrightable, it doesn't sound like that's part of your worries.

Whether it's deceptive is a separate issue; I'd recommend a disclaimer or explanation at the beginning, pointing out that you used older sources ("classic recipes") but have rephrased some of the instructions to match modern kitchens. If you're sourcing each recipe, IMHO there's no need to explain in detail which ones have been rewritten entirely, vs rephrased a bit, vs republished the original. Readers who are interested can dig through the bibliography and do their own research.
posted by ErisLordFreedom at 11:31 AM on November 7, 2018 [1 favorite]

From Wikipedia's article “limitations on copyrightability in Canadian copyright law”:
Justifications for merger doctrine

This doctrine was developed to prevent a copyrightholder from effectively denying other users or creators the use of an idea simply because an idea cannot be expressed in another fashion.⁽¹⁾ A simple example involves a list of recipe ingredients for pancake batter. The expression of the list of ingredients can only be done in a very limited number of ways. As a result, the granting copyright over the list would be to deny the use of the idea of pancake batter to other cooks. For this reason it is likely that the list of pancake batter ingredients merges with the expression of the list of ingredients such that no copyright can be present in the list.
I've come across the specific statement that lists of ingredients aren't copyrightable in reference to the laws of other countries as well.
posted by XMLicious at 11:32 AM on November 7, 2018 [1 favorite]

IANAL, but I have written about food and about spirits and cocktails, so I have some knowledge in this area.

First, you cannot copyright a recipe. This is to say that you can't copyright a list of ingredients and the process of putting those ingredients together to result in a cocktail. You can copyright the distinctive prose used in describing that recipe. So long as your client isn't lifting someone else's prose, he's okay from a legal standpoint.

Second, and this is worth considering, it is very much considered "not okay" in the cocktails community to lift recipes from a contemporary without their consent, and certainly not without attribution. This is to say that your client may very well get some pushback in the community if, for example, he were to take a Don Lee recipe out of the PDT Cocktail Book without seeking consent, especially if he presents it in his cocktail book with no attribution or in a way that might make it seem like his own creation. Your description of recipes being taken from "modern bars and recent cocktail guides" suggests this may be your client's plan. I would not encourage this. Cocktails I've created have appeared in a few magazines and books written/compiled by others, but never without being asked if it was okay and never without receiving overt credit. I am aware of instances in which requests to include cocktail(s) in a book have been declined by the creators.
posted by slkinsey at 1:36 PM on November 7, 2018 [2 favorites]

it is very much considered "not okay" in the cocktails community to lift recipes from a contemporary without their consent, and certainly not without attribution

I was going to say this. Including a contemporary recipe without clearing it could lead to bad blood. This is especially true if you're seen as lifting a creator's work wholesale (I've heard of bars getting cease and desist letters because of so-called "tribute" menus). The easy way around that is to ask those creators if you can include their recipes, and be specific about which ones. If they'd rather be excluded, accept that and move on. Even if the recipes you want to use have already been published elsewhere it's still best to ask. As long as you're not replicating an entire menu or aping a section of their own book you shouldn't have much trouble. People do share recipes, but they don't want to feel like they're being taken advantage of.
posted by fedward at 3:41 PM on November 7, 2018

For contemporary recipies, you could experiment with tweaking the formula slightly. Drop in a single clove. Add a splash of grenadine. Variation on a theme. Credit source.
posted by ovvl at 4:50 PM on November 7, 2018

Again, because it can't be said loudly enough since so many people's advice fails to take this on board: you cannot copyright a recipe. The recipe for a Sidecar is the recipe for a Sidecar. As long as your client's prose is original, there is no problem to be solved.
posted by DarlingBri at 6:46 AM on November 8, 2018 [1 favorite]

Right, there’s “you cannot copyright a recipe” but there’s also a whole community of creators who only share their original recipes because they believe the community will respect their work, not take too much of it at once, and share equally in return. We’re not saying you can’t (legally) reproduce a recipe without asking first, we’re saying you should respect the work and goodwill of the people who created it. It’s (A) don’t be that guy, and (2) recognize that lifting contemporary recipes without so much as asking can have a chilling effect on future sharing.
posted by fedward at 7:53 AM on November 8, 2018 [1 favorite]

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