copyright question

[Xaleto]

I am a pastry chef who depends heavily on cookbooks, the internet and such for inspiration. I am about to start working in a new place and I will be working with a gal who asked a question to which I thought I had an answer.

What is the policy for using other people's recipes in a restaurant? What about if you find a muffin recipe in the internet and you use it in your restarant without changing it? And if you use a flourless chocolate recipe for the evening dessert but then you create a new dish by deciding how to serve it? Is it copyright infringement because you make a profit out of it?

I initially thought that once things are published they are for grab, not to be used in your own cookbook, but certainly in you home or professional kitchen. Am I wrong?

Just curious.

Laura

[kthull]

I'm no lawyer, but my take on what I've learned here and elsewhere online is that other people's recipes are ok to use, just not reprint and/or claim as your own. To take that point one step further, the formula itself is not protected, but only the preparation instructions that are protected.

Of course, you'll do yourself no good to not give credit where credit is due. But using recipes for commercial application should be fair game...unless, of course, the author clearly states that the recipes are not intended for that purpose. I'd guess that to be highly unlikely.

[RegularJoe]

What is the policy for using other people's recipes in a restaurant? What about if you find a muffin recipe in the internet and you use it in your restarant without changing it? And if you use a flourless chocolate recipe for the evening dessert but then you create a new dish by deciding how to serve it? Is it copyright infringement because you make a profit out of it?

Copyright is all about publishing, not using. So you are completely in the clear by using any recipe from anywhere in a restaurant.

If at some point you decide to write a cookbook or do a cooking show and claim those recipe as yours without modification, you could potentially get in trouble. On the other hand, you could modify and state that it was an adaptation of a recipe by so-and-so and you would be in clear so long as it is a true adaptation and not just a change of words.

[genevieve.m]

It is a rough deal in the world of food writing where copyright is concerned. Legally no one can reproduce in print then sell a writters recipe that they have claimed copyright on. However, if you were to rewrite the recipe in your own words and sell it, no one could touch you legally.

As far as I know, the same ingredients and quantities can be used, and you still can't be touched.

Also, the publisher once they have paid for the rights to publish your book can reproduce the writters work in other publications without the writers permission.

The laws are not as tight as you think, in fact the only person that has total copyright in a cook book is the photographer. They get paid evertime the photo is reproduced. It is commen for them to put a time limit on advertising campagnes like a year. Then the client if they continue to use the image must pay again.

You are safe to use any recipes that you choose in a restaurant
as you are not reproducing and selling the written recipe. You can only get in trouble if you signed a secrecy agreement with your last employer protecting that employer from you taking their recipes to a compeating restaurant .

[shroomgirl]

The agreement I have with Food and Wine is that they own my recipes for 90 days and pay me additiona fees if they put any of them on the web or publish in their annual cookbook or internationally.... I may resel or use them publically after 90 days.
Afticles I've written that are going to be published exstensively and put on the web for a long time are sold at a high rate....I still retain the write to use them myself. But the buyer wants them on the AP, so the only place I would probably use them is in a book or in articles for the market.
Most of my writer friends say that they will sell an article on the average of 3x each.

[RegularJoe]

Originally posted by genevieve.m,
[b]Also, the publisher once they have paid for the rights to publish your book can reproduce the writters work in other publications without the writers permission.

This is not true. The publisher can only use your copyrighted material in the way that you agree. There may be some publishers who ask you to sign for that type of agreement, you do not automatically give them right just by their publishing your book.

Originally posted by genevieve.m,
The laws are not as tight as you think, in fact the only person that has total copyright in a cook book is the photographer...

This is also not true. The writer has the same protections for their material as a photographer. There is absolutely no difference in the copyright laws. As the creator of any written material, recipe, photo, music, etc. you always own the copyright. You can give or assign the right to use that material to a publisher or someone else, but that remains entirely within your control.

[genevieve.m]

Regular Joe,
you are right. I used the word "book",when I should have the word magazine. But of course this does depend on the type of agreement you have with your publisher.

As to the rest, my point was simply that it is simple to re-arrange someone elses idea's for recipes or written work by making a few changes and a photograph is rock solid copyright by comparison, even though the rules for both are the same.

As a writer and photographer like yourself, I feel much more protected with my photographs than my written work. My food idea's have a habbit of cropping up under other people's names unlike my photo's that always require permission and always the due credit is given.

[RegularJoe]

Originally Posted by genevieve.m

...I should have the word magazine...

I completely agree about magazines. Many are notoriously bad about having the author sign away their rights in order to be published. Unfortunately, most people are grateful just to be published and don't read the fine print. They assume the publisher would never take advantage of them. That is a very bad assumption to make. I know of one scientific publication that requires the author to "sign over the copyright" if they want their article published, and then they require the author to pay for reprints if they want them. Unbelievable!

Originally Posted by genevieve.m

...I feel much more protected with my photographs than my written work...

Agreed. It's the nature of the beast. A copied photo is obvious, whereas words are easy to copy and manipulate. So, while both have the same legal protection, with a photograph it is easier to prove that the original idea was yours.

Note to Writers
It is vitally important that you realize that no one else is looking out for your best interest. Unless you have an agent or lawyer, carefully read any agreement regarding publication of your work.

[Athenaeus]

Also, have in mind that when it comes to recipes that are used by restaurants one could have really difficult time in proving that you are actually using his recipe. Although as Regular Joe says copyright laws put restrictions in republishing. Otherwise why people would compose recipe books and sell them. Recipes are published in order to be used.

[phatch]

The problem is, you can't copyright facts. A recipe is factual data, mostly. Introductory material, how you express the instructional aspects, those bits of a recipe are protected by copyright. The presentation of those facts as it were.

But not the facts of the recipe. The amounts and what you do with them are facts and public domain. Facts.

Allegedly, there are exceptions. One is Paul Prudhomme's Turducken recipe he actually took to the Copyright office and copyrighted it. But he has allowed it to be shared freely anyway.

For example, various sports organizations have attempted to require payment for the news printing and broadcast of sporting events. And the interpretation was that they, the sports orgs hold copyright on the event as broadcasted. On their presentation of the facts of the game. The scores, stats and such, even a few highlights are available for use by the News. Scores and stats are facts. Free to use. Highlights, are fair use, after the fact. You'll rarely see highlights of a game in progress, for example, as that is considered a violation of fair use.

Guiness owns the copyright on the presentation of the World records, but not on the facts of the world records themselves.

And so it is with recipes.

Phil

[RegularJoe]

Originally Posted by phatch

...But not the facts of the recipe. The amounts and what you do with them are facts and public domain. Facts...

Phil, I disagree.

Recipes are not facts, they are formulas. They are expressions of a way to assemble ingredients to prepare food in much the same way that a book is an expression of words to convey an idea, or software is a forumula for a computer program. Recipes are and can be protected by copyright just like any other intellectual property.

Originally Posted by phatch

...One is Paul Prudhomme's Turducken recipe he actually took to the Copyright office and copyrighted it...

Many of us do that with our work, but it is not required, and has nothing to do with a persons ownership of the copyright to their work. The law is very clear on this.

I suggest that anyone who has questions about copyrights in the U.S. can find the definitive information here:

US Government Copyright Web Site

[phatch]

I am well aware that copyright exists without registration. Registration is very helpful however.

Some excerpts from the government copyright office previously linked.

http://www.copyright.gov/help/faq/faq-protect.html (the FAQ)

How do I protect my recipe?
A mere listing of ingredients is not protected under copyright law. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a collection of recipes as in a cookbook, there may be a basis for copyright protection. Note that if you have secret ingredients to a recipe that you do not wish to be revealed, you should not submit your recipe for registration, because applications and deposit copies are public records.

And about copyright in general:

Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form. Copyright protection does not extend to names, titles, short phrases, ideas, systems or methods.

Ideas, systems or methods, are the realms of the patent. The orginal recipe could be patented. But that makes it public knowledge too. And patents are shorter protection than a copyright.

In essence, the facts of a recipe aren't protected, but a well written description of the recipe may be so protected. Please note the "substantial" requirement the recipe writing must rise to for copyright qualification as well.

Phil

[RegularJoe]

Originally Posted by phatch

...In essence, the facts of a recipe aren't protected...

So what do you consider the facts of the recipe?

Isn't this a bit like saying that the words in a book cannot be copyrighted but a book or short story can be?

[phatch]

Originally Posted by RegularJoe

So what do you consider the facts of the recipe?

Isn't this a bit like saying that the words in a book cannot be copyrighted but a book or short story can be?

It can certainly seem that way. And in any contested case, it would be up to the jury to be the final arbiters. Law tends to have fuzzy and sometimes inconsistent boundaries in these sorts of cases.

To me, the short story can be copyrighted because the story's presentation is the piece that is valuable. Merely summarizing the story as in a review wouldn't be as interesting, even though the facts could be there. A professor of mine stated it this way, paraphrased from memory: "In a good story, you could read the end of the story and it wouldn't matter. It's not where you're going that matters, but how you got there."

The recipe, on the other hand is comprised of the ingredients, techniques and order or those items. Those are the valuable aspects of a recipe and they exist independently of a given presentation. The recipe could be written 10 different ways and the results of following them could all be the same. That's not usually true of a story.

Yet, a recipe may contain more than just facts. Like Water For Chocolate is a copyrightable work as there is plenty of other pertinent creative work surrounding the occasional fact of a recipe.

If you want to wax eloquent on the texture of a bread dough, you may be adding copyrightable elements to a recipe. The facts of the recipe are still up for grabs.

I attended a writing seminar once with a presentation by Orson Scott Card. In part of the seminar, he would build parts of the story with input from the audience. His introductory statement to the whole thing was that all the ideas here were up for grabs for any and all. That even if we all wrote a story about those elements, the stories would all be different.

To me, it is the same with a recipe. If you and I agreed each to write up the same version of a recipe's facts, each version would be different in presentation, though they would agree on facts. One, or both, or neither might make the cut for qualifying for copyright.

The photo maintains the same presentation each time it is viewed. If a recipe is presented verbatim from another source that was granted copyright, then its presentation is the same and should be protected. If the recipe is rewritten in new words, that's new work and may qualify for copyright itself. But not automatically in the case of a recipe. But the rewrite avoids infringement of the original copyright for the case of a recipe.

Phil