This is a question that has plagued me for some time now: What are the legalities concerning a recipe? First, to what extent does a copyright cover a recipe? More specifically, how much would have to change before its considered different?
Secondly, what aspect of the recipe is actually covered by copyright? It seems obvious that I couldn’t take a recipe from a cookbook and publish it as my own. But could I use a recipe from a cookbook in a restaurant? Does the copyright cover the food produce? Or would that require a patent?
First off, I see you reside in Canada, which is an important thing for people to note when answering.
In the US, lists of recipe ingredients, and basic recipe instructions, are not copyrightable. The US copyright office specifically notes this exemption on their website. However, descriptive text, commentary, historical notes, personal notes, and other items may be copyrightable. Also note that a compilation of recipes is copyrightable as a work (just as a collection or compilation of public domain resources can be copyrightable).
So as an example, if this is the original recipe:
You can probably use this part:
But keep in mind, there are no hard and fast rules here as to what exactly is overly “descriptive”.
Here a link to a FAQ from the Canadian Intellectual Property Office. Note that they say that:
Since a recipe is a “method” or factual information, a set of instructions, my feeling is that recipes are not protected in Canada, provided you are not infringing on any substantive literary expression accompanying the facts and instructions.
>>Facts, ideas and news are all considered part of the public domain, that is, they are everyone’s property.
So in Canada, as long as I paraphrase what I read on a Reuters feed, I don’t need to actually pay Reuters if I want to publish my own, commercial newspaper?
Just to clarify: I’m a cook now, and my girlfriend thought it would be fun to sell stuff at the market this this summer. Her idea was for me to put together some spice mixture, seasonings, and marinades. After I thought about it for a few days I realized most of my ideas are from a cookbook some where, and so I wondered if it would be wrong for me to “package a recipe” and sell it.
The second issue that’s been on my mind relates to my current employer, a catering company. They have had some strange legal problems in the past, before I arrived, and have since tried proactive measures. One of which was to have new employees sign non-disclosure agreements in an attempt to protect their recipies. Would this fit with what we’ve now learned about copyrighting recipies?
You mean, you’re wondering if making something from a recipe and selling it is a copyright violation? From what I can see, in the US and Canada the answer is that you’re completely in the clear. Even if you attach a recipe to it you should be OK.
That’s a much tougher one to answer, depending on the NDA which was signed, and I think that you need to ask an actual attorney in your jurisdiction for the Straight Dope.
In my non-lawyerly opinion, I’d say it’s completely legal. Wrong? That’s a different matter, and it’s completely up to your personal sense of ethics.
Nothing whatsoever to do with copyrights. Now you’re in the realm of trade secrets. If you are dealing with spice combinations or recipes that have not been published anywhere, and you know them only because you work for the company, you are in possession of trade secrets. If the company cared enough to have you sign the non-disclosure, they’d probably care enough to sic a lawyer on you if you violated the agreement. I’d be really careful, and consult an attorney with experience in trade secrets.
I think it is perfectly legal to reproduce a recipe in Canada, as long as you use your own words. That is because I own a copy of this book, and a copy of this book, and have noticed that the latter book contains each and every recipe that is in the former. The wording of the instructions is different, but the list of ingredients are identical and the method is the same (just reworded). So either it’s legal, or they’re getting away with something.
To paraphrase Cliffy: I am not your lawyer. I am not licensed to practice in your jurisdiction. I am unaware of the precise facts of the situation. You should consult a real, live, actual lawyer in your jurisdiction in full possession of the facts of the situation. I am not your lawyer.
However, in general, a recipe is not considered a copyrightable work. There are some exceptions though, and one of them is materals covered under law other than copyright law. That would include both contract and trade secret laws. I’m not up on my Canadian trade secret law, but contract law kind of says “don’t go there” in your situation. If you signed an NDA agreeing not to disclose the recipes (and spice combinations and what have you), then you can’t really disclose or market those without being in danger of lawyers siced on you
If it’s your own recipes, and not ones from the place you work though you’re prolly okay.
My mistake, I didn’t mean to confuse the two situations.
In the first case, I wanted to sell spice combinations, and wondered if it was illegal/wrong for me to use published recipes. I had always believed that the copyright would protect the author, and prevent people profitting of his/her idea. So I then wondered just how much a recipe would have to change (i.e. how much you have to change the plot of McBeth) for it to be considered new.
The second case was entirely seperate, re the non-disclosure agreement. I have no intentions of selling recipies from where I work, I just felt the paralells were a little strange. The line between copyright and trade secrets is still somewhat blurry to me.
To copyright (or patent) something, you must publish it. If you don’t tell anyone, then it’s a trade secret.
A recipe in a book has been published, so it can be protected by copyright. A recipe in a restaurant that is only known to the chefs hasn’t been published, so can be protected as a trade secret.
For example: Antoine’s in New Orleans has never published their recipe for Oysters Rockefeller. A lot of other restaurants sell 'em, but only Antoine’s sells the origional. That’s a trade secret.
And I know, after lab analysis Poundstone did say the green stuff is parsley, not spinich.
Given that this is now known, can it still be considered “secret”? Or is the fact that Antoine’s has never willingly released the recipe sufficient for legal purposes? If a chef formerly employed at Antoine’s published a cookbook containing the recipe, and I later published a cookbook of my own containing that same recipe, would Antoine’s have any legal recourse against me? What if I got ahold of the recipe as above and kept mum about it, but quietly started selling my own Oysters Rockefeller using the recipe?
Purely hypothetical, mind you, since I’m not intending to write any cookbooks or sell any food.
IANAL, Chronos, nor am I a chef, but I think my experience in microelectronics is germane here. If you “reverse engineer” a design (whether a corn chip or a silicon chip), effectively duplicating it without getting a look at the original plans (or recipe), then you legally have your own product. The reason for having people sign non-disclosure agreements is to prevent them from claiming they reverse-engineered something when in fact it was shown to them.
If something is patented, of course, detailed instructions must be published in the patent, and you may not produce that product using those instructions.
I’d say if you figured out Antoine’s recipe on your own, with no assistance from anyone in a position to know the original recipe, it would be fine for you to sell your own Oysters Rockefeller or to publish your recipe.
It is not oversimplified. For copyright, at least, it is simply wrong.
Under current U.S. law, something is copyrighted in your name as soon as you write it down. It does not have to be published.
In a court case, to be sure, the dating on this might be hard to prove. For something like a recipe, however, the use of it in your kitchen might be known to a fair degree of exactness and its copyright would be established that way. But publishing is absolutely not required.
IANAL! At first glance, your post seemed to say that both books have the same recipes, but I see that one has many more than the other. Since the Amazon descriptions say the recipes are traditional, the smaller one possibly didn’t even use the larger as a reference, so no problem.
There could be a violation even with traditional (and non-copyrightable) recipes if one book showed up with the vary same list as another. Selection and organization of the material can be enough creative input to qualify a work for copyright. The standard example is the phone book; names, numbers, and addresses are facts and alphabetical order is too obvious to rate copyright, but the Yellow Pages[SUP]TM[/SUP] has selected one of many ways to classify the ads, and is therefore protected. Other ad-page publishers need to develop their own classifications.
OK, so Poundstone reverse-engineered the parsley, so he’s in the clear. But what if a competing restraunteer buys the recipe off of a former Antoine’s chef? Now, the chef probably signed an NDA or equivalent contract, so Antoine’s would have a basis for action against him. But could they touch me? I’m using their exact recipe, as conferred on me by a person with access to the original. But I never signed any agreement, myself.
Possibly. If you knew about the agreement that the chef had with Antoine’s, you might be liable under a tortious interference with contract theory. Also, some states have trade secrets statutes that might cover the situation.
