by Heather McPherson
October 27, 2008
I must confess. I stole something from a very nice Quaker fellow. My oatmeal cookie recipe is the one my mother used and her mother used. And it was taken from the paper canister of Quaker oatmeal.
Baking those cookies isn't the problem -- publishing the Quaker Oatmeal Cookie recipe in this newspaper or a cookbook and claiming it as my own is where you can stir up trouble.
Home cooks spread recipes around the world in a chain-letter fervor. But what happens when you take that recipe of unknown or known origin and retitle it Jean's Best Ever Oatmeal Cookies?
Copyright law is clear as corn syrup and as muddy as fudge, all at the same time. And it's public record for all to read at Copyright.gov.
The chemistry of baking, for example, revolves around known edible equations. It's when you put your thumbprint on the language of the recipe that ownership can begin to take shape -- for example, describing an accepted procedure for combining wet and dry ingredients in your distinctive voice and tone.
"A recipe infringes on another's copyright if and only if it copies some of the creative content of the recipe," says Siva Vaidhyanathan of the University of Virginia Department of Media Studies. "In other words, a simple list of ingredients, measures and amounts, and the order of steps, is not copyrightable. Facts and ideas are never copyrightable. Only the arrangement, order, illustrations and other creative expressions are protectable under copyright.
"So the bottom line is that recipes are very hard to protect. And that's probably best."
Indeed, who would want to slap Aunt Betty's hand for sharing those oatmeal cookies in her church cookbook that is raising funds to build a community playground?
What about cookbooks?
There isn't big money at stake in small-circulation books, says Orlando attorney Ava K. Doppelt, who specializes in intellectual property law. But there have been legal cases between large publishing houses where entire chapters were lifted from previously published cookbooks.
"Cookbooks as a whole are very easy to protect, says Vaidhyanathan, who wrote Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity ( New York University Press, 2001). "They have a specific order, creative text and descriptions, and photographs or other illustrations. So copying pages from cookbooks would clearly infringe. But the recipes themselves are not the same thing."
There are occasions when fair use and one-time use come into play, says Doppelt. This newspaper, for example, is routinely granted permission to reprint published recipes in the Cooking & Eating section because publicity sells cookbooks and drives people to restaurants. When those recipes are used, credit is clearly given to the chef or cookbook author that shared the work.
Stating the source offers no clear legal protection. However, it's a good place to be, some legal experts say, should someone cry foul.
"Granting credit has nothing to do with copyright," says Vaidhyanathan. "Copying materials legally requires permission, but not necessarily credit. However, not everything written down is copyrightable. For instance, the phone book is pure information with no creative expression. So it's not protectable under copyright."
While U.S. copyright law does address recipes, within the food industry, trade groups encourage writers to engage in ethical practices as well.
The guidelines of the International Association of Culinary Professionals, for example, stress giving proper attribution to recipes. IACP advises using the words "adapted from," "based on" or "inspired by," depending on how much a recipe has been revised. But having good ethical standards is not a legal defense. It's just the right thing to do.
Recipe copyright infringement is taken seriously by the producers of high-profile cooking contests as well. For amateur cooks who participate in the Pillsbury Bake-Off, the recipes they submit as their own had better be their own. Bake-Off officials perform exhaustive "originality" searches on the 100 finalists, says contest publicist Peg Ilkka. Contestants whose recipes do not have at least several significant differences are disqualified.
For the rest of the story, read on here.