A copyright is a right to prevent people from using work originally authored by another person. Under federal copyright law, a copyright entitles the owner to exclusive rights of use of copyrighted material, such as the right to:
- Reproduce the copyrighted work for distribution for profit;
- Sell copies of the copyrighted work to the public;
- Sell licenses to others to make authorized uses of the work;
- Perform the copyrighted work if it is a play, script for a television program or movie or a musical work.
If another person makes any use of copyrighted material, they have infringed on the copyright. The copyright holder can file a civil action for copyright infringement seeking money damages, an injunction or restraining order and the impounding of copies that are alleged to violate the copyright owner’s exclusive rights, as well as templates for reproduction and records.
As part of a final order in a copyright infringement case, a court can order the destruction of all the copies that violated the copyright owner’s exclusive rights, as well as any templates for reproduction.
In addition, in certain circumstances, the U.S. Department of Justice enforces federal copyright law through criminal prosecution.
Most people think of copyright protection as a function of the federal government. Federal law does offer copyright protection under the U.S. Copyright Act, but states have copyright laws also that may be of help to a person who wants copyright protection for a recipe.
Can I Copyright My Own Recipes?
If a person’s recipe merely contains a list of ingredients, then it does not qualify for copyright protection. However, if the recipe is accompanied by directions or instructions, then a person may be able to get copyright protection as long as the other requirements of copyright law are met. Generally, this means a person must have independently created the work and not adapted it from the recipes of other people. A compilation of recipes, as in a cookbook, can also get copyright protection.
In our current era of non-stop television cooking shows, cooking blogs, videos, websites and cookbooks that are coffee-table publications, another common feature of recipes is the headnote.
The headnote is an introduction to the recipe and may include a variety of elements, including:
- The origins or history of the dish;
- Information about finding and choosing the best ingredients for the dish;
- Preparation tips;
- A short memoir inspired by the dish;
- Musings that may have no clear relationship to the recipe itself at all;
- Attribution, if the recipe was inspired by someone else’s version;
- Artwork in the form of drawings or photographs of ingredients or of the finished product.
If a person wants to copyright a recipe, they should include the following elements as an integral part of it in order to qualify the recipe for copyright protection
- More Than a List of Ingredients: Content that goes beyond the list of ingredients;
- An Introduction: It might be an entertaining story of some kind;
- General Instructional Notes: These often precede the ingredient listing, and include preliminary instructions, such as directions to preheat the oven, grease baking pans and the like. These notes may contain other supplemental instructions, such as how the user can adapt the recipe for baking in a microwave, or how one ingredient can be substituted for another;
- Directions: These are sometimes entitled, “Method.” They are step by step instructions for preparing the ingredients, how much of an ingredient to use, how to combine one ingredient with the others and finally how to cook the final product, if it needs to be cooked in some way;
- Artwork: This might be photographs or drawings, videos and sometimes even podcasts. Artwork and videos of some kind are often included with recipes published online and in many cookbooks. These elements may have copyright protection separate from the other components of the recipe;
- Personalization of the Recipe: While many recipes are written in a concise, technical style, developing a distinct “voice” for recipes helps protect a person’s copyright in the elements other than the lists of ingredients.
- Make Use of the Copyright Symbol and Notices: When publishing recipes online, a person should use the copyright symbol and notices on each individual recipe and/or on their website as a whole. A person might include a link through which another person could obtain permission to reproduce the recipe. This would encourage people who want to make some use that is not personal to seek permission;
- Respect the Copyrights of Others: Every person can do their part in reinforcing respect for copyrights. So, for example, if a person posts the recipe of another food blogger on their website, they should not only get their permission to do so, but clearly indicate that they have used the recipe with permission of the copyright owner. If a person’s recipe was inspired by someone else’s, then it is appropriate to mention that person with an attribution.
How Can I Use Copyright-protected Recipes?
If a recipe, or elements of it, are protected by copyright, what can a person legally do with it? They can do any of the following:
- Make that recipe for themselves or as a caterer for a large group or public event;
- Take a photo of the finished food creation from a protected recipe and share the photo on their own blog or
- Instagram or Facebook account;
- Prepare the recipe and sell the finished food product;
- Share on their blog or elsewhere about their experience of using the recipe and their thoughts about it, a summary of the recipe, and a link to it. Always be careful to link to an authorized source such as the cookbook writer’s or publisher’s website, or a recipe elsewhere that is clearly authorized.
Will My Recipe Be Kept Secret If I Copyright It?
A person’s application for copyright protection, including the copy of their recipe, is made public. Therefore, if there are secret ingredients in a person’s recipe that they do not want to be revealed to the public, a person should not submit their recipe for copyright registration.
They would want to treat the recipe and its secret ingredients as trade secrets.
This might be the route a person wants to take if their goal is to produce a processed food product for sale in grocery stores or for mass production and sale in restaurants, as, for example, the Colonel’s Secret Recipe Kentucky Fried Chicken.
Can Others Make My Copyrighted Recipe?
As noted above, even if a person gets a copyright for their recipe, others can still use the recipe to prepare a food product. That is the point of publishing a recipe in a cookbook or on the Internet. The problem is that a person can copyright and protect the copyright of a recipe that is printed in a cookbook or possibly online from being reproduced as a writing in another cookbook or on the website of some other person. However, the recipe is intended to be used for cooking by private individuals. If it is published, people are going to make use of it in their kitchens.
Private parties who gain access to the recipe from a cookbook or website may well reproduce it for friends and acquaintances e.g. by copying it from a cookbook, for example, to give to others.
As a practical matter, the owner of the copyright cannot enforce the copyright and prevent these private uses of their recipe. The copyright holder can really only protect their recipe from being published in other cookbooks and in the media, e.g. in newspapers, or on the Internet.
Should I Consult a Lawyer about My Copyright Issue?
An experienced copyright lawyer can help you understand how a copyright can protect a recipe and how it cannot. They can advise you as to the format a recipe must have to qualify for copyright protection and how to get a copyright.
A copyright lawyer can also help you determine if another person has infringed on your copyright and if so, what you can do to protect your interests. They can also tell you whether, perhaps, trade secret protection is more appropriate for the use you want to make of your cooking expertise.
