Questions and Answers, #1: Recipes

by John Aquino on 04/11/12

Q: Can I copyright a recipe? I have found conflicting information.

A:  Suppose you create a fantastic recipe for a chocolate cake. It took you years to develop it. You share it with a friend, who shares it with someone else, and the next thing you know it’s on the Internet, in a book, or someone else has won a contest with your recipe. Have they violated your copyright?

You should, of course, consult an attorney, giving him or her specific information on your particular situation for a definitive answer. But, in general, whether a court rules that something that is written down is copyrightable will depend on whether it is an original expression rather than a recitation of facts.

The Supreme Court ruled, for example, that you cannot copyright the telephone book. It is conceivable that a detailed, expressively conveyed recipe could qualify as a "literary work" under the copyright law, while a short, "three cups of flour, one cup of milk" would not. The latter is just a recitation of facts—that is what you do to make this cake. Now, taking and publishing without permission a collection--or substantial portions of a collection--of recipes could conceivably result in copyright infringement of the collection. But as  for an individual recipe, this statement from the Sixth Circuit decision in Lambing v. Godiva Chocolatier (6th Cir., No. 97-5697, 1998) seems to reflect the current thinking: “Recipes, however, are not copyrightable, see Publications Int’l Ltd. V. Meredith Corp., 88 F.3d 473,
480-81 (7th Cir. 1996).

The identification of ingredients necessary for the preparation of food is a statement of facts. There is no expressive element deserving copyright protection in each listing. Thus, recipes are functional directions for achieving a result and are excluded from copyright protection.”

There used to be a legal doctrine called “sweat of the brow” by which some form of copyright protection was offer to reflect the effort that went into compiling a phone book or creating a recipe. But the Supreme Court’s telephone book decision voided the “sweat of the brow doctrine.”

And so, copyright law would not appear to offer you protections for a single recipe. If someone took your recipe and claimed it was theirs to win a contest, they would conceivably have committed fraud against the contest. But that's the contest's legal action, not yours.This should suggest that you might just think about putting your recipe on the Internet or emailing it to a listserv.  

You might find protection elsewhere in the law. You could, for example, sell the recipe to a cake mix manufacturer and then they could acquire protection for the recipe as a trade secret.

Or, you could revert to the idea of making the recipe a literary work of authorship by putting the recipe in verse:

To make this omelet, first you need

Three eggs, milk, salt, and a powdered cheese.

Break the eggs, drop yolks and whites into a cup,

Take a fork and mix them up.

And while you’re mixing, start to thinking

About humanity and why it is sinking.

Just an idea.

Copyright 2012 by John T. Aquino. This article does not represent a legal opinion. The opinions are those of the author and are presented for educational purposes.v