A recent case from the Sixth Circuit explains why recipes are generally not subject to copyright protection — but cookbooks are.
The dispute arose between former partners in a catering business called Tomaydo-Tomahhdo, LLC. Larry Moore created recipes for the business, but later sold out his interest to his partner, Rosemarie I. Carroll.
The Share Purchase Agreement provided that Moore would deliver to Carroll:
all originals and copies of . . . menu files and development ideas, recipes (current and historical) and training tools (picture boards, build sheets, prep lists, and master order guide).
Moore later opened a competing catering business.
Carroll applied for copyright protection for the Tomaydo-Tomahhdo Recipe Book and sued Moore for, among other things, infringing her copyright via his catering business’s menu.
The district court ruled for Moore, finding that Carroll failed to show that Moore infringed on any of the creative content in the book and that there were material differences between the book and the menu.
On appeal, the Sixth Circuit noted the distinction between facts and compilations of facts:
While facts cannot be copyrighted, compilations of facts generally can be… . A compilation is a “work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original authorship.”
To be copyrightable, a compilation must have some “creative aspect.” Recipes are not generally considered “creative.” As the court noted:
The list of ingredients is merely a factual statement, and… facts are not copyrightable… . Furthermore, a recipe’s instructions, as functional directions, are statutorily excluded from copyright protection.
However, the author’s commentary about the recipes presented can be protected under copyright law. A Seventh Circuit case commented that cookbooks could be protected by copyright if
the authors lace their directions for producing dishes with musings about the spiritual nature of cooking or reminiscences they associate with the wafting odors of certain dishes in various stages of preparation.
Although it is very difficult to protect recipes under copyright law, it is possible to protect them under trade secret law as long as secrecy is actually maintained. Of course, publishing a cookbook would end any trade secret protection.
Leech Tishman’s Intellectual Property Group is based in Pasadena, California with a team of highly-regarded legal professionals with prosecution and litigation expertise in the fields of patent, trademark, copyright, and trade secrets.
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Photo Attribution: “End of Summer Tomatoes” by Mason Masteka – originally posted to Flickr as End of Summer Tomatoes. Licensed under CC BY-SA 2.0 via Commons.
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