The dispute over if cooking recipes or diverse culinary inventions may be covered by copyright is a relatively new one, thanks to the development of ‘celebrity’ chefs on social media. In addition to a list of components, recipes frequently include a technique of preparation that yields the desired outcome. Celebrity chefs are frequently anticipated to generate innovative recipes that distinguish them from other chefs—as with other types of celebrities, there is however a requirement to “create” products, and in this case, takes the shape of culinary inventions.
Like all other inventors and innovators, chefs who develop cuisines also want to safeguard their concepts. The concept of the “idea-expression” duality, the legislation’s language, and the way a recipe is written all play a role in the question of whether or not it is protected by copyright law. To that end, this article explores how copyright law could relate to recipes.
Copyright: What it protects and what it doesn’t:
Copyright is intended to protect the expression of an idea, which is a person’s original creation, exhibits a form of creativity, and is expressed in a permanent or tangible form. While a recipe is considered in the abstract, it appears to meet these requirements, but copyright law is stricter than allowing a recipe to be copyrighted, as evidenced by how copyright laws define “works” that can be protected. Section 13 of the Copyright Act, 1957 states that there is a copyright in “original works, literary, dramatic, musical and artistic; cinematographic films; and sound recordings. The text of the law makes no reference to recipes as copyrighted “works”.
Furthermore, the answer to why a recipe cannot be copyrighted lies in the “expression of the idea” dichotomy in which intellectual property is rooted. In the same way that ideas cannot be patented, an idea cannot be protected by copyright. The United States Copyright Act, which lists in detail what may be copyrighted, goes on to state that copyright protection “does not extend to any idea, method, process, system, mode of operation, concept, principle or discovery, in whatever form he has described, illustrated or embodied in such work.”
If one examines the legal interpretation of this, the question arises as to whether a recipe can be considered an idea. A recipe is essentially a list of ingredients and a process, or set of instructions, intended to guide how the ingredients should be used to create a culinary dish. The United States Copyright Office Compendium (“Copyright Compendium”) states that a “simple listing of items or content is not copyrightable” and that a “simple guide” also cannot be copyrighted. copyright. Obviously, neither comp main elements that a recipe may contain are not protected by copyright.
The idea-expression dichotomy, literary expression, and precedents (Case Laws):
Recipes are generally considered an “idea” for this purpose and therefore cannot be copyrighted. As such, the idea can only be interpreted very narrowly, to the point where there is no discernible distinction between the idea and the expression. For this, the Doctrine of Fusion is used to determine whether the idea and the expression converge in such a way that they cannot be demarcated. In Tomaydo-Tomahdo, LLC v. Vozary, the Court held that “the ingredient list is merely a statement of fact and, as discussed above, facts are not subject to copyright.”
In the case of Joshua Ets-Hokin v. Skyy Spirits Inc. that photos of the same subject cannot be copyrighted as there are only limited ways, it can be photographed.
In the case of Publications International Ltd. v. Meredith Corp. Meredith published a cookbook entitled “Discover Dannon – 50 Amazing Yogurt Recipes”. Subsequently, when Publications released 12 of them, Meredith claimed that her copyright had been infringed. The Court noted in this case that while the recipes as a statement of the facts are not protected by copyright, the commentary which helps to do so may be protected by copyright.
In Lambing v. Godiva, the prosecution alleged that one of their recipes from an unpublished cookbook had been used by the defendant to sell truffles. The Court stated very succinctly that the recipes are not protected by copyright and did not discuss whether the presentation, illustration, and accompanying commentary are possible. Therefore, the law now takes a clear position on whether recipes can be protected by copyright.
The Copyright Act 1957 does not include receipts or the like within the scope of copyrightable “works”. As these are only “ideas” and not forms of expression, they cannot be protected by copyright. The Supreme Court ruled that no copyright was infringed if a person had made a film bearing striking similarities to the plaintiff’s play.
The “lay observer test” as an alternative:
Recipes cannot be copyrighted, and underlying this statement is the dichotomy between idea and expression. If recipes were copyrighted, the “average consumer test” or the “layman’s observer test” could prove to be valuable alternative tools for determining where copyright infringement occurs. is produced. Of course, this would prove to be a daunting task to determine the copyright infringement of the recipes.
Recipes protected as Trade Secrets
Recipes are often protected as trade secrets. Trade secret law also protects the idea behind the creation of the novel, the obvious implication being that the recipe must remain secret. Companies like KFC and Coca-Cola protect their recipes, and many restaurants and chefs can claim the same. However, the recipe should be a new creation in itself and not a regular staple that the general public would nevertheless be aware of.
In Buffets, Inc. v. Klinke, for example, the Klinke case involved a recipe for roast chicken and macaroni and cheese, which are fairly common recipes well known to the American public and therefore did not warrant such protection; they were not new creations of the plaintiff. Moreover, the process must also be new, as in the case of Lic. Shuman has been found.
In conclusion, although the issue of copyright protection for cooking recipes is complex, the answer is quite simple. Recipes are clearly mere factual accounts or mere ideas in the sense of an ‘idea-expression’ dichotomy. Although there is no conclusive evidence that the recipes can be trademarked for their ingredient lists or the process and instructions for making them, there is an open possibility (and just that) to believe it if they are accompanied by a larger literary expression, with illustrations or in a specific arrangement in a cookbook, the entire work may be copyrightable.
- Samantha Levin, Are Recipes and Cookbooks Protected by Copyright?, Copyright Alliance (March 9, 2021). Available at: https://copyrightalliance.org/are-recipes-cookbooks-protected-by-copyright/.
- Intellectual Property Protection for Recipes, on Lexology (July 25, 2019). Available at: https://www.lexology.com/library/detail.aspx?g=3741a5c0-f146-40ab-8f74-21427cd3b673.