Copyrighted materials - Read First Before Posting

How does one know if a recipe is copyrighted?

Shel

If you copy it out of a book or magazine would be a start, Shel.

I have a question about this. If the recipe that was posted did not have a "source" would that be permissable?

As an example..
The meatloaf recipe that was posted (which probably got this going) is a basic meatloaf recipe. It just happens to be out of someones cookbook.
I'm pretty sure many people add the exact same ingredients to their own meatloaf recipes, and have never read the book that's mentioned.

I do that constantly. I read a recipe then I add or subtract ingredients till its to my likeing.

What I'm trying to get at here is, if I posted a recipe from a cookbook that I have adjusted/revised to suit my/our tastes, is it permissable?
Thank you

I can't speak for Nicko, but I'll give you the idea from an author's point-of-view (I have friends who are published authors who complain about copyright violations, so I've heard quite a bit about it).

If someone is trying to make a buck or two from selling their recipes, you shouldn't give it away for free after buying/reading the book. That someone can't sell his/her recipes if others are taking them and giving them away on the internet.

That said, if you take a recipe and change it, it is no longer that someone's recipe. You have made it yours. Because it is yours, you can give it away for free. Just don't tell everyone how you changed the original so that they can tell what that was.

Also, some recipes are "public domain" much like a cliché would be. How to make a basic créme anglaise, for instance, can't be copyrighted. It is already general knowledge, just like the cliché "soft as silk" can't be copyrighted as it is already in general use.

Hey Nicko
I was about to post some of my work in the photo galleries. I've been given the right to use them for my portfolio by the owners, my clients. This is an agreement that often occurs between stylists, the photographers and the clients.

I just didn't want post them just to have you remove them.

What should I do?

Understanding Copyright

Just to keep the record clear, here's how the copyright system works, both legally and in practical terms.

Under the law, you own all rights to intellectual and artistic property. That means that as soon as the work is produced it is real property, and you own it.

Used to be a concept called "automatic copyright," which said that as soon as the work was produced it was copyrighted. In one of the major revisions of the code they dropped that concept. Now, you own it as soon as it is produced, but unless it is registered, there is no copyright. Defending unregistered property is difficult.

Mailing yourself a copy of the work, and leaving the envelope unopened, is known in the trade as the "poor man's copyright." Sometimes it works. But in practical terms, if you can't afford to register the work, you can't afford to defend it anyway.

The law also specifies that a "significant difference" must exist between an old work and a new work, or else the new work is infringing on the copyright. That is to say, changing a couple of words here and there does not make it a new work.

That's what makes copyrighting recipes, per se, so difficult. Unlike, say, a short story or painting, where small changes do not effect the overall nature of the work, recipes can be totally changed with minor changes.

For instance, take a recipe with a long list of ingredients, among them, yogurt and dill. If you change that to sour cream and tarragon, have you created a new recipe? The courts would likely say yes.

All that aside, if a recipe has been published---that is to say, it has appeared in public---then it is covered under the copyright that protects the entire publication. A magazine, book, or internet site all fit in the legal concept "published." So, too, does tacking a broadbill up on a telephone pole, but you aren't likely to find a recipe there.

In practical terms, recipes, per se, are not copyrighted. And it's impossible to protect a copyright if there is one. Recipes are traded back and forth in magazines and books, with no accreditation, all the time. And, so far as the internet goes, the copyright laws may as well not exist.

What Nicko is saying, I believe, is that ChefTalk will not be part of that process. He recognizes that somebody, somewhere, owns the work, and doesn't want to reproduce it here without that person's permission. I wish more site owners would occupy that sort of ethical and moral high ground.

Meanwhile, if you want to share a recipe from a public source, best bet would be just to refer to the source, or link to the sight. Or take the time to obtain permission to reprint from the owner.

BTW, most of the time copyright owners have no problems granting you that right, so long as due credit is given. For instance, a cookbook publisher will gladly let you reprint one recipe from a book, in the hopes that it will encourage others to buy the book.

But the key is asking for, and obtaining, permission. It's not hard getting it. It just takes time.

[Meanwhile, if you want to share a recipe from a public source, best bet would be just to refer to the source, or link to the sight. Or take the time to obtain permission to reprint from the owner.]

But that was done. The source in this case was the cookbook and that was a no-no.
How can it be wrong to ask questions about a certain recipe in that book anyway?
What's the point of us buying any cookbook then if we can't discuss or share a recipe from it here or on any other cooking/baking site without getting our knuckles rapped?
I realize that the cookbook and recipes are copyrighted, but really, if no one ever discussed how good or bad the recipes were or asked questions about the ingredients in said recipes to other people for fear they'd get into trouble, no news good or bad about this cookbook would ever be passed on!


[BTW, most of the time copyright owners have no problems granting you that right, so long as due credit is given. For instance, a cookbook publisher will gladly let you reprint one recipe from a book, in the hopes that it will encourage others to buy the book"]

In the past three months I have purchased 2 cookbooks because a certain recipe on someones blog/website caught my eye.
The persons that have the blogs/websites do say what cookbook they got the recipe from as their 'source', but I've never seen any mention of having permission from the author to use said recipe.

To me this can only be a good thing for any cookbook author though.
Think about it, someone buys your cookbook, is so thrilled with one of your recipes they put the recipe on their blog/website to share with others.
Along comes someone like me to that blog/website, sees the recipe and the cookbook its from and promptly goes out and buys it.
That can only be a good thing for the cookbook author right?!

I can see the author/authors objecting if someone posted their cookbook page by page for all to see.
But if its just one recipe posted here and there that in the long run might help make their cookbook more popular, I don't understand the objection at all..

Sorry for being so long winded here. Just wanted to get my thoughts across..

It is my non-professional opinion as a professional writer that you can't copyright a single recipe (in most cases). Similarly excerpting a single recipe doesn't infringe the copyright of the whole work which is how a cookbook generally qualifies for copyright.

U.S. Copyright Office - Recipes

However, while I believe what I wrote above there are extenuating circumstances that make Nicko's policy a good one.

Nicko runs a website on a shoestring budget. He is liable for the content of this site. In the case of a claim of copyright violation, both HE and the POSTER become liable for LARGE fines for EACH instance. Besides which defending of those claims and winning is an equally large liability on both the poster and Nicko.

So it's a no-win proposition for him to allow the posting of other's work.

And it protects us too.

Now, I think giving a list of ingredients without quantities from a source and a SHORT summary in YOUR OWN words would be sufficient insulation from the creative literary work of the original to be allowed under copyright.

As noted in the government's site on copyright, a mere listing of ingredients is not protected speech. While that probably includes quantities, it's probably best ethics to not list quantities.

Anyway, that's my opinion and worth every cent of what you all paid to read it.

Phil

This is the key phrase, Phil

"where a recipe or formula is accompanied by substantial [COLOR=#006666! important][FONT=verdana, geneva, lucida, 'lucida grande', arial, helvetica, sans-serif][COLOR=#006666! important][FONT=verdana, geneva, lucida, 'lucida grande', arial, helvetica, sans-serif]literary[/FONT][/FONT][/COLOR][/COLOR] expression in the form of an explanation or directions,....."

Let's say you're watching Emeril on TV, and he says put some olive oil in the pan, then add some tomatoes, okra, salt, pepper, and essence, that is not copyrightable.

But then you go to the Food Network website, where the actual recipe appears, along with directions.

"Heat 2 tbls oil in a pan. Add 1 cup chopped tomatoes (heirlooms work best for this), a pound of okra, tipped, tailed, and split the long way, so much salt (sea salt really perks it up, but if not, kosher salt will do), so much pepper and a tsp of essence.

Let it simmer ten minutes, then........etc."

The specific quantitities, along with the explanation and directions, would make it copyrightable.

That recipe probably isn't copywrited for several reasons, not the least of which is that it's designed to be downloaded. Food Network even provides the means for you to do that. But, for the sake of discussion, let's say it was copyrighted.

Now I come along, and print out that recipe here at ChefTalk, attributing it to Emeril and the Food Network. Technically, I have still violated the copyright law, because I used somebody elses property without permission.

In practical terms, my liability is zero. Food Network (the actual copyright holder) is not going to sue under those conditions, for all sorts of reasons. And, if they did, the judge's decision would be based on 1. what damages were suffered, and 2. who, if anyone, benefitted. So, after spending $50,000 on the suit, Food Network would be awarded a favorable decision and 2 cents in damages.

That's why no suit would happen. Food Network's lawyers aren't stupid.

"Similarly excerpting a single recipe doesn't infringe the copyright of the whole work"

Maybe. Excluding the educational exemption (a section, btw, which every writer and publisher seriously objects to), it would depend on the use.

You may quote "short sections" as part of a literary review or criticisim, for instance. Generally, industry practice accepts up to 500 continuous words as legitimate for such usage. Does a recipe qualify? I dunno. I have no idea if it was ever tested.

On the other hand, reprinting it, without permission, and particularly without attribution, in a new cookbook would certainly qualify as a violation. You have, without question, stolen somebody elses property, and are using it for your own benefit.

Again, in practical terms you probably face little liability. But the question is, do you do the right thing out of fear of punishment, or do you do the right thing because it's the right thing?

The answer to that question is how we define the moral man. But that takes us far away from the basic question of property rights.

So, you are likely safe stealing one recipe for your new book (unless, as happens from time to time, the original publisher is looking to make an example). But, what if you stole whole sections of recipes, and put them in your book, representing them as original material? Would you expect to get away with that?

The fact is, stealing 25 recipes and stealing just one is a difference of degree, not of kind. In both cases you have actually broken the law.

Certainly, reprinting for profit without permission is a violation of copyright.

But you also skipped over the part "may be a basis for copyright protection" which is not a guarantee of copyright. And also the word substantial indicates more than just simple directions.

Phil

As to the claim about free info being in the authors interest, see
Accelerando!

Read two sections in particular:

Accelerando! Yes, I know all the links look the same, but they go different places.

and

Accelerando!

The executive summary is that Charles Stross, a well established award winning author thinks that giving away a free etext of the book at the same time it is available in hard copy is a viable and improved marketing strategy.

Which is not a claim to post chunks of his story all over the place in violation of the CC license, but to show that copyright isn't everything (read $$$) big business thinks it is either.

Oh, and it's a good book with some excellent chapters but it wasn't written linearly. And free to read/download at Accelerando!

Phil

Maybe I'm just having a brain-cell malfunction moment, but I need some clarification. Is it copyright violation if I post a link to a recipe I came across on the web? I understand that I can't type out the recipe and post it, but if I have a question, can't I post a link? And how does naming the source change (or not change) things?

To my understanding, a list of ingredients can not be copyrighted. Only the instructions. Please correct me if I'm wrong.

I agree with that assessment.

However, that agreement is tempered by how much money you are willing to spend in court to be proven right, though there is the risk of losing too with even more outlay. Or in this case, how much money Nicko is willing to spend in court. The answer is, it's not worth the fight.

Phil

Under the law, a list of ingredients---whether for a chemical formula, what your kids need in terms of school supplies, or, to put a point on it, a recipe, is not copyrightable. There is no ambiguity there at all.

The question is whether or not the instructions are intellectual or artistic property under the meaning of the law. This part is ambiguous. And, to the best of my knowledge, has not been tested.

And, as Phil implies, Nicko isn't going to be the one to do so.

Another consideration. According to some authorities, recipes, per se, are not copyrightable. But what happens when the recipe appears in a book? Does the general copyright applying to the work (the book) also apply to the component parts (i.e., a recipe in the book)? Again, this is ambiguous, and has not, to my knowledge, been tested.

Just for some perspective, to defend a copyright or patent suit takes 50 round ones just to open the door. And it goes up---rapidly---from there. Which is why there aren't a whole bunch of such suits. In the first place, you rarely recoup what it costs you in court. And, in the case of publishers, the PR aspect isn't good. So, 99.999999 ad nauseum percent of the time you will get away with minor---and even not so minor---infractions.

But, as I've said before: Do you do what's right out of fear of punishment? Or do you do what's right just because it's right?

All of which is academic at Cheftalk. Nicko has decreed that copyrighted material can not be posted without permission. And this is his site, so he makes the rules. We either live with them, or we're free to go elsewhere.

Wow!

I never knew you could copyright a recipe

No Copyright On Recipes

There is no copyright on Recipes - Full stop!!

Nothing quite like a legal opinion from a non-attorney.

BDL JD

Sure there is - a medical diagnosis by a non-doctor.

scb

It seems that people are getting confused between what Copyright Law is and what the United States wants the Law to be.

Copyright Law is international under the Berne Convention. Every country that is a member of the Berne Convention is bound by the exact same Copyright Law...and that is almost every country.

It is all very complex but I can sum it up like this...

Copyright is AUTOMATIC - You make it, you own it.

That is it...That is Copyright summed up.

There is no such thing as Copyright registration - Yes, I am aware that the U.S has a Copyright Office and I understand that they charge a fee. Under the Berne Convention the U.S Copyright Office is may NOT be lawful.

The question of linking to web sites by posting URL's. No, that does not breach Copyright. Some things are not subject to Copyright for example, your name, your address etc. A URL is nothing more than an address and therefore not Copyright.

Giving credit does NOT give a right of use. Whether the material has a Copyright Notice or not is irrelevent...It makes no difference. If you did not make it, then you do not own it!

The ONLY time at Law you can use Copyright material is if you own it or you have "express written permission" to use it.

There are uses that are exempt of the Copyright Law. For example...

Reporting News.
Education.
Critical Review.
etc, etc.

In short, if you are not 100% sure that you are allowed to publish material, then chances are you are not.

As for posting recipes etc. I would suggest that you take the time to type it yourself. If photos are required, then cook the recipe and take the photo yourself. I would suggest, that the question of whether a recipe is Copyright or not would need to be asked on an individual basis at Law.

At the end of the day the simplest thing to do is what Admin asks...Don't breach other peoples Copyright.

;)

KissTC,

In your discussion of copyright law are you giving your lay opinion or your legal opinion?

It isn't actually that complex, and your summary is neither wrong nor right. It's incomplete and not helpful. Further, it appears you misunderstand the Berne Convention. In pertinent part it says that the signatories accept that other signatories may and will enforce their own law regarding intellectual property; and further accept those laws as valid. In other words, the other signatories recognize and accept United States law as it applies to U.S. intellectual property. You are wildly incorrect as to any effect the Berne Convention has on U.S. copyright registration. By the way, copyright registration is not particularly germane to this discussion.

Whether or not a person may post, without permission, the work of another is subject to a multi-pronged analysis which depends on the type of material, on the intent of the the person copying the original work, and many other factors. I won't go through all of them. This isn't law school, and you aren't my student. This isn't a case, and you're not a client.

While your list of excepted activities is correct in some respects, it begs many questions. More importantly though, it does not relate to the subject matter here. When writing on legal matters it is important to be precise. To date, no one has successfully protected a single recipe. There is, as far as I know, no controlling U.S. statute or regulation in the Code. However, there is a fair amount of case law directly on point. Every opinion agrees that individual recipes are not protected -- at least as lists of ingredients and simple instructions. That is the law as it stands.

Giving credit is more a matter of ethics than of law.

The administrators of this site have decided on a policy which is both prudent and fair. Whether or not the law allows more latitude than the policy is of no consequence. The site is a private place and our continued participation is, as it should be, at sufferance of the management. Furthermore their liability may be somewhat different than an individuals, in that many people may individually take enough information from another to constitute more than would be exempt.

I hope this clarifies,
BDL

BDL,

In answer to your question. I note your apparent belief that one needs to be qualified in Law to be able to give an opinion. I am sure that you would understand that Law is a matter of opinion. That is why we have Courts, so that when legal opinion differs, the Court can decide which opinion is most correct.

I am also sure that you would be aware that 'ignorance of the Law is no excuse'. In most countries, including the U.S and here in Australia, people are duty bound to be aware of all Law that applies to them. It is a requirement that every person (of proper age and responsibility etc) form an opinion of the Law as it applies to whatever it is they are doing.

You, however, are implying that a person that has an opinion of Law without being formally qualified as an attorney or lawyer, is to be fround upon. However, the truth of the matter is that every person is duty bound to ensure that they make themselves aware of the Law and form an opinion of the Law and how it applies to them.

As for the rest of your post, I am not going to address everything you have stated. However, I will correct you on a few things...

"You are wildly incorrect"... I did not state it as a fact. I specifically used the word "may" as in maybe, possibly, might etc. I am not aware of the matter ever being tested and therefore it remains a "may". I am sure you would understand it is not possible to be incorrect with a maybe...let alone "wildly incorrect".

My summary is correct...Copyright is AUTOMATIC.

Copyright can be very, very complex. Especially when there are multible owners. For example, a photo can have one owner of the image another owner of the film the image negative is on and yet another owner of the paper the image is printed on...and that is just one SIMPLE example of how complex Copyright can be! In affect a Copyright Owner might need to seek permission to use their own Copyright !

"While your list of excepted activities is correct in some respects,"...No, my short list of 3 examples is correct...It is not correct in some respects...The 3 examples are 100% correct.

It does relate to the subject matter. If a person posts a photo here, for example, as a news announcement, then it would not breach Copyright!

"When writing on legal matters it is important to be precise"...I was. In fact, I will state again, if you are not 100% sure that you are allowed to publish material, then chances are you are not (allowed).

You stated - "Giving credit is more a matter of ethics than of law"
I stated - "Giving credit does NOT give a right of use."

So what is your point?

I agree with your comments regarding Admin and the Forums. However, a small correction, it is public not "private".

In closing, I will state again that it seems people are confused with the Copyright Law and how it applies to them. People should not confuse what the U.S wants with what the Law actually is.

And again I state - At the end of the day the simplest thing to do is what Admin asks...Don't breach other peoples Copyright.

:smoking:

Everyone is entitled to their opinion, but unless you're qualified it's not a good idea to advise other people as to the law. Perhaps I should add that I'm an attorney, although with no particular expertise in Intellectual Property (IP)

No, usually not. It's usually a matter of applying cut and dried rules to a particular factual situation. Opinion is seldom involved.

No. In almost every case, courts determine the facts.

No. Wrong. "Ignorance is no excuse," means you're liable for violating the law whether you know it or not. It does not mean you are "required" to form or hold an opinion.

I asked whether you were giving a lay or a legal opinion. I implied that a person unqualified to opine on a fairly recondite area of the law such as international copyright would serve themselves best by not doing so and appearing a fool. No frowning. Ridi Pagliaccio :lol:.

Where do you get this? You have no affirmative duty to make yourself aware of the law nor to form an opinion upon it. You are simply liable for your breaches, whether made with scienter or through ignorance. Your statement is the pluperfect paradigm of an imprecise statement.

Because you can't. "Ay, there's the rub." The thrust of your original post was that the Berne Convention controlled IP law in the United States, and that the U.S. was limited to whatever authority the Berne Convention confeered if the U.S. sought to alter its IP law. In fact, it doesn't.

Rather, the purpose of the Berne Convention is to insure that ownership interests of IP held in one signatory nation are respected by the other signatories, and to create mechanisms to enforce them. Nothing more. The Berne Convention neither destroys, creates, nor alters the nature and extent of the ownership interests or the rights pertaining to them in any signatory nation.

Why am I not surprised?

You wrote, "Copyright Law is international under the Berne Convention. Every country that is a member of the Berne Convention is bound by the exact same Copyright Law...and that is almost every country." You did not use any terms of qualification, including but not necessarily limited to maybe, possibly, and might. Thus, you were not only incorrect but wildly so.

You also wrote, "My summary is correct...Copyright is AUTOMATIC." Mais non. Temporary protection is automatic. However temporary protection is not the same as a copyright. It is a stopgap which allows a creator time to finish her work and seek copyright. Had you said "protection is automatic," you would have been wildly right, and I would not have quibbled.

My point.

Garbled and wrong. Only one of the people in your example would own the copyright, or the copyright would be held jointly as a result of contract. Ownership means ownership in the normal sense and the owner or partnership is entitled to exercise all of the usual property rights, including alienation. For example, let's take the unlikely example of the person owning the negative but not the copyright, while the owner of the print did. That would mean the owner of the print and copyright could have copies made and sell them for gain, or give them away for public viewing, or anything else he chooses. However, the owner of the negative cannot sell prints, or even give them away for the purpose of "economic benefit." But the owner of the negative can make as many prints as he wants for his own use and even sell the negative without permission from the copyright holder. In other words, the copyright owner exercises the rights of copyright ownership, while the negative owner could not. Understand? I thought not. For clarification, let me add that in the case of a photograph, the copyright and the image are not distinguishable.

In the case of verbal IP, there are limitations on how much may be quoted. In the case of visual IP, there are limitations in what and how much may be reproduced. The amount, type and form of copying determines the actual intent of the user. It is not enough to say you're reporting the news, or even to print the copied material in a legitimate newspaper. As the saying goes, "you may infer intent from action." And, in the case of IP, intent is very important. Your examples, in my opinion, were not "100% correct," because they were incompletely explained, and because the list itself was incomplete. There are other exempted activities.

When I wrote "... does not relate to the subject matter here," I was referred to copyright law as it effects recipes. That is, most recipes are not copyrightable IP. In fact they are not IP. If I was vague or ambiguous, I apologize.

Depends if the image was copyrighted and what restrictions the holder placed upon it. If the photo was theirs, than certainly not. If the photo was by Ansel Adams and reproduced without permission for purposes of gain, as for instance a "news announcement" concerning the publication of a book about Yosemite, than that would be an infringement.

Oy gevaldt.

Interesting statistical assertion. Any data upon which to base it? Or is the foundation of your assertion that non-experts find the subject of IP so confusing it's better to be safe than sorry?

True. You did, and it doesn't.

As you said, certain activities are exempted from copyright. If for instance, I use a few of your copyrighted words in an academic paper without seeking permission but giving attribution, I have not violated your copyright. That would make you wrong. On the other hand, if I quoted your unprotected words without attribution, that would make me an unethical plagiarist.

No, it's private. If it were publicly owned, it would be owned by the government. It is a private space open to the general public under certain conditions. However, this might be a difference between Ozzy and U.S. usage.

True. I can think of one in particular.

U.S. law controls in the U.S. The Berne Convention does not preempt U.S. law in the U.S., and for that matter in Australia. That's the point of the Berne Convention. If Disney owns Mickey Mouse in the United States, and holds a copyright in the U.S., then Oz recognizes Disney's copyright so that Disney owns Mickey Mouse in Oz. If an Ozzy copies Mickey Mouse in Oz without Disney's permission, Disney will have appropriate venues in which to bring suit.

Just peachy.

Indeed,
BDL

From the U.S Copyright Office - U.S. Copyright Office

That means that even under U.S law Copyright is AUTOMATIC...The very moment you make it, you own it and it is protected...Free and AUTOMATIC.

There is no such thing as temporary copyright, verbal IP copyright or as can be seen below "poor man's copyright".

As I stated before, one should not be confused about what the U.S wants and what the Copyright Law is. The U.S would just love it if every person paid them a nice little fee to get what they already have.

From the moment you make a "copyrightable" material it is AUTOMATICALLY Copyright protected. It does not even have to be published. Most things people are told such as what is appearing and being edited and changed at an alarming rate above, is just plain wrong.

At the end of the day...If you did not make it, then it is not yours to use. It does not matter about where you find it, or whether it has a copyright notice attached, or anything else.

If you don't have express (written) permission and you are not sure whether you are allowed to use something or not, then chances are someone else owns it and you are not allowed to use it.

So let me get this straight. If the copyright laws are as Kiss states then the Azzholes at the Big Tree Inn or more specifically Campus Auxillary Services (that's who they were at the time) in Geneseo NY owe me for keeping my recipes when they terminated me? Even though I notified them by registed letter that the recipes were mine and they had no right to them. Now this is been almost 9 yrs that I've held on to it becasue of so many, many, many reasons. PM me if ya want to know some of them but they terminated me while we were on vacation and by certified mail to boot. Anyone interested in a client and 9yrs worth of back sales royalties?:beer: