Copyright Shtuff

Probably the correct thing to do, especially if you are going to publish the recipe in your own book, which is most likely a copyrighted piece, is to ask permission to use the recipe.

On the internet I have seen many tens of posted recipes that are all indentical and they each read as though they belonged to the person posting it. Many of them are in cookbooks I have from before the time of the internet. So I wouldn't be worried about posting them here if I were you.

You're starting, Shel, with an erroneous assumption.

Lists of ingredients cannot be copyrighted. They are, in fact, specifically excluded by the copyright laws. So a recipe could only be copyrighted based on the textural content---that is, the directions and instructions.

There are two open questions posed by your thread. Open because, by and large, most provisions of the copyright law have not been tested in the courts, due to the incredible cost of doing so.

The two questions you pose are:

1. Are the directions and other textural material of sufficient intellectual originality to warrent copyright status.

While we cannot fall back on case studies for the answer to this, we can surmise, based on opinions offered by administrative law judges and other authorities that the answer is "no." The textural material would have to be of compelling originality to warrent copyright protection.

Another aspect of this is that lists fall into a separate class of intellectual production. Any other work that is copyrighted requires significant changing to not be in violation. That is, you can't change a word or six and call it a new work. With lists, what would be minor changes in other contexts are considered significant.

Thus, if a recipe called for 1/4 teaspoon of mace, and you changed it to 1/2 teaspoon, the law says that's a new list.

So, on a very practical level, recipes, per se, are not copyrightable.

2. If published in a book, there is a question as to whether the general copyright of the work (the book itself) applies to the individual components of the work. To put a point on it, does the general copyright pertaining to the book grant protection to a specific recipe found in the book?

Here, again, we have the problem of insufficient case law to draw a conclusion. Nobody in their right economic mind is going to drop 50 large or more protecting a recipe contained in one of their properties. So, again, on a practical (as opposed to legal) basis, copyright doesn't apply to single recipes.

It's important to recognize the difference between ethics and the law. You may have noticed that the recipes accompanying ChefTalk book reviews always identify the source. There is no legal compunction that we do so. And, in all cases, I have actively sought permission from the publishers to reprint those recipes.

Both the credit line and the seeking permission are done for ethical reasons, as a courtesy to the authors and publishers.

If Nicko, in a fit of mindmelt, were to tell me, "don't waste any more time seeking permissions," there would be no practical change, because there is no legal compulsion for us to even identify the source of the recipe, let alone gain permission to reprint it. In short, legally we don't have to do it. Ethically we do.

Finally, something that concerns every writer, photographer, artist and publisher in the country is the simple fact that, for all intents and purposes, the copyright laws may as well not exist when it comes to the internet.

Now then, getting down to your specific questions.

Nicko has continually made the point that ChefTalk will not knowingly violate the copyright laws. If something is copyrighted, and you do not have permission to reprint it from the copyright owner, then don't post it here. Period.

That doesn't apply to recipes that chef's have shared with you. They are not copyrighted, even if they have appeared elsewhere. Certainly, were it me, I would identify the source out of courtesy.

Reprinting in a book you write isn't so clear cut, because we don't know if the copyright of the work as a whole protects otherwise non-copyrightable material. But there are a couple of mitigating factors. Assuming you identify the recipe as coming from Chef John, and maybe including the name of his restaurant as well, there is no way anybody will sue you. It just ain't gonna happen, both because of the cost, and because of the nebulous legal theory such a suit would be based on.

And, again, from a very realistic viewpoint, publishers are so used to people reprinting recipes without attribution that they are overjoyed when you do so.

It gets even murkier: Another confounding point is that the recipe you've received from a chef may not even "belong" to him or her. It's possible that s/he was given the recipe by someone else, or found it somewhere, and then adapted it. Or, if the chef created the recipe for his/her job, the recipe may be considered a "work for hire" that belongs to whomever the chef works for.

As already stated, your best bet is to get permission AND give full credit, even if you have changed the recipe (in which case you can say "Adapted from Chef Jones, Restaurant X").

Finally, as KYH said:
You have no idea how many times I have discovered that the recipes in a book I'm working on were taken right off recipezaar or epicurious, or out of a book, with no credit whatsoever. :mad: This is done mostly by folks who include recipes in their book about some lifestyle topic. They usually don't know anything about cooking anyway, and seem to have no idea of manners or ethics, thinking that if it's on the Web, it's public domain. WRONG. I always make sure the publisher knows what the author has done -- otherwise the legal department could have a lot more work than they want. :p

Ya know, Suzanne, I raised the work for hire issue with Old Timer on his thread about the restaurant that fired him but refused to return "his" recipes. But I did so more to demonstrate that not everything is as clear-cut as it may seem

Work for hire would only enter the picture if the work were copyrightable at all. But, if (as has been pretty well established) the recipe is not copyrightable to begin with, then nobody owns it.

As a general condition, work for hire just doesn't apply. In specific, contractual cases, it might. But my best guess would be that even with a work for hire clause, recipes would be excluded.

I can see quite a few what-ifs regarding work for hire. Even without a contractual clause, wouldn't there be an implied work for hire situation if the intellectual property is produced as a normal part of the job? Let's say a chef designs a new menu. I mean the physical menu, not just the recipes used for it. That's a normal and regular part of a head chef's job. So who owns the menu? The chef, who created the intellectual property? Or the restaurant, because it was created under an implied work for hire arrangement?

Another what-if. A chef, while working at a restaurant where there's a work for hire clause in the contract (although I can't imagine any restaurant even thinking to do that), writes a book. The book is based on his experinces at that restaurant, and includes recipes for dishes he created while employed there, and others which he tested while employed but which never made it to the menu.

Who owns the book?

Questions like that are why we have lawyers, cuz the only answer I have for them is "I dunno." And you can quote me on that.

>You have no idea how many times I have discovered that the recipes in a book I'm working on were taken right off recipezaar or epicurious, or out of a book, with no credit whatsoever.<

It's incredible how widespread that practice is, Suzanne. Even among cooking publications.

About two years ago I sat down with 25 years worth of various cooking magazines. Top end books like Gourmet, and little known, short lasting pubs like Simply Seafood.

When you go through a collection like that, all at once, several things become very apparent. One of which is how widely magazines stea....uh, reprint... recipes from each other with no attribution. In one case I came across the same recipe in five magazines from four different publishers. What made that one stand in my mind is that there was an egregious error that was repeated every time the recipe appeared.

What was it Tom Leher said? If you steal from one person it's plagerism. If you steal from everybody it's research.

No.

Your copyright analysis is wrong, not to the extent copyright does not apply (you're right about that), but there are other aspects of IP. Copyright refers only to the right to publish, not to use.

Why is this your guess? It's not unlike any number of other "trade secrets" or "future employment" conditions. A contract could easily be written including recipe ownership, and I'm sure many have been. Burger King doesn't want to see its signature Breakfast Croissant at Ramsay's, and they can prevent the King from taking the recipe with him when he tries to get a job somewhere else by having him check a box during the box-checking and initialing process that is a normal part of getting hired by a large company.

Proving that a similar published recipe or similar dish at another restaurant was a misappropriation of a trade secret to the point of liability would be very difficult, even for the best attorney. It's perfectly "legal" to "reverse engineer." A formula such as a recipe which can't be patented is not "owned," although a user does have the right to keep it secret in order to maintain proprietary interests. Many recipes are very closely guarded -- take Numero Uno pizza dough for instance. But if you duplicate it exactly, open your own chain of restaurants, and publish the recipe, there's no legal theory under which N. U. could seek relief. This all sounds a lot more complicated than it is. It's mostly getting control of the concept of "ownership as a bundle of rights" and learning some jargon.

The restaurant. The menu was obviously created FOR the employer since it would be of no use to anyone else. The Chef was either compensated for his work by being paid for his time, or he chose to give it to the restaurant gratuitously. Work or gift, it's the restaurant's.

The chef owns the book, but he may be liable to the restaurant for publishing trade secrets. As I said, there's more to IP than copyright. There is no copyright issue whatsoever.

They're very easy questions. Consider yourself quoted.

BDL

Shel,

The answer to your question lies in the nature of the recipes themselves and in the meaning of "use."

As a for instance, let's take one of my favorite examples -- me. You don't need my permission to use my recipes to cook -- even in a restaurant. You have my permission to send them to a friend in an email, or repost them on another forum as long as you credit them to me. You do not have my automatic permission to publish them for profit -- even on your blog. ("Profit" doesn't always mean you get money.)

I can't stop you from using the same ingredient list, or from rewriting the instructions so they are simply bare instructions. But, returning to wonderful me, even the instruction set in most of my recipes are unique, if only in there specificity. That means they're protected. It's the "uniqueness," the law finds valuable.

Same for those recipes you were given. You can cook them. You can cook them for money. If you publish them as is, you're probably encroaching on the chefs' IP -- depending on the degree to which they are more than a list and a set of simple instructions. literary expression. But if you rewrite the instruction sets, you're cool for court. However, complying with copyright laws doesn't mean you're not plagiarizing. That's a matter of ethics not liability.

BDL

Shel,

There shouldn't be a legal issue. But you should consider whether Chef John would want approve and give him credit. Given that you've had these recipes for quite some time, it's probably not an issue.

BDL

>It's not unlike any number of other "trade secrets" or "future employment" conditions. A contract could easily be written including recipe ownership, and I'm sure many have been.<

Trade secrets are protected by non-disclosure agreements, not by work-for-hire clauses.

Virtually all authorities agree that recipes are not copyrightable (and, despite your obfuscation, it's copyright we were discussing). Therefore, there is no way a restaurant can protect a recipe by claiming it was produced as part of a work-for-hire agreement. WFH only applies when there is an ownership issue.

Typical real life example. National Geographic hires you, on a work-for-hire basis, to go to Africa and do a photographic essay.

There is no question that photographs are intellectual property under the meaning of the law. But you no longer own those rights. Any exposure you make on that trip belongs to National Geo, because those were the terms of employment. You cannot, for instance, decide that role of film A is for National Geo and role B is for you. All the photographic fruits of that labor belong to the magazine.

Now, National Geo might, at its descretion, return certain rights to you. But the decision is strictly up to National Geo, which owns all rights to the work.

On the other hand, only a lawyer could state, unequivacably, that one party or another owns something that the law says is not real property to begin with.

First, not true. Trade secrets are protected in a number of ways. Second, that's why I said "not unlike." instead of "are."

There are few, if any, things relating to employment in any way which aren't amenable to contract.

"Work for hire" clauses, by definition, vest copyright interests, patent interests and sometimes but not always other proprietary interests in one party or group of parties to the contract, and not in another or others. The term "proprietary interests" usually but not always means "'certain but not all' property rights."

Are you really saying I was obfuscating? That I was attempting to confuse? That seems a gratuitous insult, very much unlike you. Perhaps you meant something else.

We were talking about ownership rights of material. Whether some of this material was actually subject to copyright seemed in question. There was also an underlying question as to whether ownership or control were subject to other protection besides copyright. Just because someone can't be successfully sued for copyright infringement, doesn't mean they aren't liable for other conversions.

Last things first, "WFH only applies when there's an ownership issue." You're right ab definito on this. Because that's what "work for hire" clauses are about, assigning ownership. Where there is no ownership issue, the clause itself is not at issue and wholly immaterial to the discussion.

However, as to the thrust of your argument that there is no ownership absent ability to copyright -- you're wrong. A restaurant may argue other forms of proprietary interest besides copyright were conveyed by a work for hire clause, or in some other way By way of example, if you google work for hire agreements, you'll see many (and probably all drafted by someone competent) including language which extends beyond copyright and often including the the specific term "proprietary interests." "Proprietary interest" may become a term of art for a reservation of rights broader than those specifically named, and an indication to the court regarding (at least) one party's intent to hold all rights not otherwise relinquished.

Excuse me for interrupting but there's something of a leitmotif developing. Your National Geographic "fact pattern" is a "hypothetical," not a "real life example." A real life example is something which actually happened. I'm not messing with you here, but nailing the language down. Using words exactly is critical to meaningful legal analysis. Within the context of a legal discussion you sometimes use them loosely, ambiguously or incorrectly. Again, no offense intended. IMO, you write well, very well in fact.

"Work for hire" is a common term (linguistically and as term of contract) and a big deal in consultants' employment contracts, more so than anywhere else. (My guess is that why it's such a big deal here.) I've done four or five cases including IP as it relates to employment (both as a "research attorney" for the court of appeals, and as a party attorney). Yet, I've never heard the term "work-for-hire basis" used in quite the way I understand it to be used here; i.e., as a term encapsulating the respective rights and obligations of the parties to the employment contract without any further reference to the clause itself or any other circumstances of the contract. Rather "work for hire" usually describes a specific, written, clause; a part of a larger employment agreement, which describes assignments of rights for intellectual property, the creation of which was at least part of the express purpose of the employment agreement. More on this later.

Photographs are IP, that's true. The "under the meaning of the law" part is true, too; but I'm not sure that means what you think it does. It's certainly not dispositive as to anything else. Photographs are covered by copyright; parts of recipes are not; while others may be.

The metaphor between magazine and menu is inexact, and the hypothetical may or may not be relevant (in the legal meaning of the term) to any given recipe situation and to any given contract which includes an express or implied "work for hire" clause. Whether it does, depends on the wording of the "work for hire" clause in the contract. It's not enough to merely wave the words "work for hire" around as though they're a thaumaturgic talisman. The "legal" meaning of any particular clause is governed by the specific language, the intent of the parties, industry practice, and a number of other factors. But, specific language, if there is any, is usually determinative.

One of the first things law students learn when they take Property is the concept of "property as a 'bundle of rights.'" Included among the "bundle" are the rights to give away, sell, lease, rent, share, lend some of those rights, etc. (collectively, the right of alienation). Had N. G. "returned certain rights" to me, I would be allowed to exercise them -- whatever those rights were. Because the term "returned" is unclear, and because the term "certain" is undefined it's hard to know more. I'm left wondering what you meant by the hypothetical. More than that NG owned the rights to the photographs because that's what the contract said, but that's the totality of the argument.

I'm guessing your point is that photographs are property, and recipes can never be. However, that photographs were property was not in doubt. Nor was there any doubt that recipes per se are not covered by copyright. I think you're actually arguing that recipes can never be property because they're not property which is shown because they're not covered by copyright law like other pieces of IP. If so, the argument is false.

I'm not sure I understand what you mean by "only a lawyer." Are you insulting my profession? Me? Why?

Your remark also begs the question of why you're offering an opinion on a legal issue if you feel that way about the profession. If you felt personally slighted by something I said, I assure you I never intended to offend, merely to inform. I meant no insult. I disagreed with what you said, no more.

If I wanted to be insulting, I'd ask "Why bring in 'real property?' When did the conversation switch to land?"

But obviously you didn't mean "real" as in "real property," you meant "real" as in "actual." However, even that is imprecise because the bundle of rights isn't the same as to all forms of property. Some "actual" interests in property are decidedly different from others just as "actual." Distinguishing the interests is critical to understanding the parties' rights and obligations. In the case of this specific sentence and post, the "something" to which you refer is unclear. Is it the menu from the previous post? Is it some recipe? If a recipe, what does the recipe say? Does it include a vivid description of a visit with the fisherman who caught the fish, along with a vague description of what was for dinner and how it was cooked, like an Elizabeth David recipe? Is it the paradigmatic bare list of ingredients coupled to a similarly spare list of instructions (add, stir, bake at 325F, etc.)?

Some of these things ARE property in which an interest could be held. To whatever extent something is property, someone may assert a proprietary interest. If the law defines a thing as outside the protection of legal ownership, than there can be no legal ownership -- by definition.

Let's get down to cases: If you're talking about ownership of the design and contents of the printed menu that formed the basis for the hypothetical in your prior post, parts of it (at least) ARE subject to copyright. I believed the menu wasn't a mere list, because the hypothetical stated the chef "designed" it and you referred to the "physical menu" itself. The implication is that the "design" itself conferred some value associated with the physical menu, as in artwork. If the chef did no more than type a list and choose a font, then I misunderstood, didn't "know" as much as I thought and was wildly, unequivocally wrong. A published list (qua list) isn't subject to any form of protection of which I'm aware. The prose by Elizabeth David including the "recipe" is not only IP, it's covered by copyright -- up to a point. -- because it's a literary creation .

The bare recipe is not subject ot copyright. Normally, no one has any "rights" to a recipe. However, it's easy to create a hypothetical where rights are held. For instance, if A and B are two parties to a contract and the contract specifies that as to any recipe developed by A for B, that A cannot subsequently use it, publish it, share it , sell it, or do anything else with it, then those are "proprietary rights" conferred by contract. One of the cute things is that, C, a third party, who wasn't party to the contract, isn't governed by them. So, if C somehow discovers the super secret recipe for "coffee with milk and sugar," C could use it without liability.

Note also, that the publish, share and sell are also typically covered by "non disclosure," clauses when they're part of an employment contract.

Take it for what it's worth,
BDL

BDL Can the Russians patent or copy right a recipe for Beef Strogonoff or Chicken Kiev ???????

Nyet. Моё судно на воздушной подушке полно угрей

BDL

Are we done here? Seems like we go through this same thing every two months. KH gets one more post (gotta even up the word count) and then I'm shutting this down.

Be nice.