To understand whether a recipe may be entitled to copyright protection, one must first look at what can be copyrighted. Under the U.S. Copyright Act, 17 U.S.C. § 102, copyright applies only to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” (Emphasis added)
Under the statute, these original “works of authorship” include the following categories:
- literary works;
- musical works, including any accompanying words;
- dramatic works, including any accompanying music;
- pantomimes and choreographic works;
- pictorial, graphic, and sculptural works;
- motion pictures and other audiovisual works;
- sound recordings; and
- architectural works.
Importantly, copyright protection does not protect an “idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” (Emphasis added). Courts and the U.S. Copyright Office have historically held that recipes that do receive copyright protection because it fits under this exception. More information on this exemption can be found here.
Simply put, recipes are lists of ingredients accompanied by a set of instructions as to how to mix and prepare the ingredients together. Listing ingredients does not qualify for copyright protection because only original works of authorship (see list above) are entitled to copyright protection. However, as in a cookbook, descriptions, explanations, or written materials accompanying a list of ingredients and composing the entire “recipe” may make the recipe as a whole protectable. Thus, the facts surrounding the recipe are important to consider.
To be protectable by copyright, authors of recipes should put efforts towards making sure the recipe is original. By that sense, chefs should make sure that the language they use is unique, the descriptions are specific, and they may want to include other material alongside the recipe such as how to serve it, techniques for preparation, what sides or wine complement the entry, etc. These add to the creative aspect of the work, which may make it more original, and thus will aid in making a case for why a recipe should be copyright protected. It is more difficult to copyright one recipe vs. a collection of work (i.e., a cookbook). On a final note, it important to know that pictures or graphics accompanying the recipe are copyright protectable.
Rincker Law, PLLC is a national law firm concentrating on Food, Farm & Family Law, with offices in New York, New York and Champaign, Illinois. Cari Rincker, Esq. is licensed in New York, New Jersey, Connecticut, Illinois, and the District of Columbia. This blog is for informational purposes only and should not be considered legal advice. You can connect with Cari on Twitter, Facebook, Linkedin and Instagram.