# Legalities of a Recipe **URL:** \ **Category:** Factual Questions\ **Created:** [April 28, 2005, 8:06pm UTC](https://boards.straightdope.com/t/legalities-of-a-recipe/301607 "2005-04-28T20:06:38Z")\ **Posts on this page:** 16\ **Page:** 2
**Author:** ![Gary\_Robson](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gary_robson/32/3448_2.png) [@Gary\_Robson](https://boards.straightdope.com/u/Gary_Robson)\ **Post date:** [May 2, 2005, 7:33pm UTC](https://boards.straightdope.com/t/legalities-of-a-recipe/301607/21 "2005-05-02T19:33:41Z")
> [@Exapno Mapcase](#): > > 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. Perhaps “published” was a poor choice of words on my part. My understanding is, though, that if you write something in a private diary, it is not considered copyrighted. You have to distribute it. Isn’t that correct? ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [May 2, 2005, 7:35pm UTC](https://boards.straightdope.com/t/legalities-of-a-recipe/301607/22 "2005-05-02T19:35:59Z")
> [@InvisibleWombat](#): > > Perhaps “published” was a poor choice of words on my part. My understanding is, though, that if you write something in a private diary, it is not considered copyrighted. You have to distribute it. Isn’t that correct? That is not correct. Copyright rights adhere as soon as an expression is fixed in a tangible medium. Publication, in fact, kills copyright under the common law. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [May 2, 2005, 7:38pm UTC](https://boards.straightdope.com/t/legalities-of-a-recipe/301607/23 "2005-05-02T19:38:05Z")
Furthermore, **Invisible Wombat** , noticing your reference to patents, publishing details of an invention before you have secured patent rights (unlike copyright, you must apply for and wait for a patent to be awarded before you have any rights) will kill your patent. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [May 2, 2005, 8:04pm UTC](https://boards.straightdope.com/t/legalities-of-a-recipe/301607/24 "2005-05-02T20:04:07Z")
Just to make some issues clear, maybe I ought to set out some basic principles: **copyrights** – deals with exclusive rights over _creative expression_ – rights do not extend to ideas or facts, only to the specific expression in question – rights adhere as soon as the work is fixed in a tangible medium – rights are relatively broad and last for a long time – there are some common law copyright protections, but little that is useful in most cases (seeing as publication kills common law copyright); in almost all cases, copyright rights derive from federal statutory law – in order to be copyrightable, a work must be **creative** , **original** , and **fixed** in a tangible medium – works include literary works, musical works, dramatic works, pantomices and choreographic works, pictorial/graphic/sculptural works, motion pictures and audiovisual works, sound recordings, and architechtural works – short things like words, phrases, titles, slogans, names, etc., cannot be copyrighted – the copyright holder has exclusive rights to reproduce, prepare derivative works, to distribute copies to the public, to perform the work, to display the work publicly, and to digitally transmit the work **patents** – deals with exclusive rights over _useful ideas_ (inventions) – rights must be secured by application to authority – grants a broad monopoly over a useful idea, but for a relatively limited time – may be secured only through federal statutory law; there are no common law patents – in order to be patentable, your idea or invention must be **novel** , **non-obvious** , and **useful** **trademarks** – deals with rights over terms and symbols that can be used to indicate _the origin of goods or services_ - but it has to be something that is capable of distinguishing your goods or services – may be secured either through common law or through federal statutory law – you must show that you are using the mark in order to identify the origin of goods or services that you are providing. You can’t just obtain a trademark and sit on it; if you aren’t actually using it in the marketplace, it’s open for someone else to jump in and take it over. – you must actively defend your trademark against hostile uses – you can only stop someone from using your trademark when you can show that there is a likelihood of confusion regarding the origin of goods or services ---
**Author:** ![Manduck](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/manduck/32/256_2.png) [@Manduck](https://boards.straightdope.com/u/Manduck)\ **Post date:** [May 2, 2005, 9:28pm UTC](https://boards.straightdope.com/t/legalities-of-a-recipe/301607/25 "2005-05-02T21:28:32Z")
> [@rjk](#): > > 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. I am sure that the larger book has gathered recipes from many different sources, and one of those sources was the smaller book. Traditional or not, when all the recipes are identical down to the quarter teaspoon, there has to be some copying going on. A major hint about which direction that copying went is that the small book has an _author_, while the large one has _editors_. Also, the recipes in the Rani book are much more verbose that the versions of them in the big book, where the wording has been cut down to a bare minimum (while still describing the same actions). ---
**Author:** ![Gary\_Robson](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gary_robson/32/3448_2.png) [@Gary\_Robson](https://boards.straightdope.com/u/Gary_Robson)\ **Post date:** [May 2, 2005, 10:36pm UTC](https://boards.straightdope.com/t/legalities-of-a-recipe/301607/26 "2005-05-02T22:36:13Z")
> [@acsenray](#): > > Publication, in fact, kills copyright under the common law. Thanks for all the information, **acsenray**. I understood everything except the above quoted material (and I am quite familiar with the patent laws, as I have a patent pending now). How can publishing something kill the copyright? If I have a published book that says on the title page, “(c)2005 by _InvisibleWombat_,” how can that kill my copyright to the material therein? ---
**Author:** ![rjk](https://avatars.discourse-cdn.com/v4/letter/r/ed655f/32.png) [@rjk](https://boards.straightdope.com/u/rjk)\ **Post date:** [May 2, 2005, 11:15pm UTC](https://boards.straightdope.com/t/legalities-of-a-recipe/301607/27 "2005-05-02T23:15:20Z")
> [@Manduck](#): > > I am sure that the larger book has gathered recipes from many different sources, and one of those sources was the smaller book. Traditional or not, when **all the recipes are identical down to the quarter teaspoon** , there has to be some copying going on. A major hint about which direction that copying went is that the small book has an _author_, while the large one has _editors_. Also, the recipes in the Rani book are much more verbose that the versions of them in the big book, where the wording has been cut down to a bare minimum (while still describing the same actions). Yes, that looks like the recipes were copied, or at least came from the same source. The identical measurements give it away, since Indian spice mixtures traditionally vary quite a lot, even from one village to the next. It would be interesting to compare the dates; Rani’s is from 1991, but the big one is a “2nd Reissu edition.” ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [May 3, 2005, 12:44am UTC](https://boards.straightdope.com/t/legalities-of-a-recipe/301607/28 "2005-05-03T00:44:56Z")
> [@acsenray](#): > > – there are some common law copyright protections, but little that is useful in most cases (seeing as publication kills common law copyright); in almost all cases, copyright rights derive from federal statutory law I’m also curious as to what this means. ---
**Author:** ![Shalmanese](https://avatars.discourse-cdn.com/v4/letter/s/45deac/32.png) [@Shalmanese](https://boards.straightdope.com/u/Shalmanese)\ **Post date:** [May 3, 2005, 1:00am UTC](https://boards.straightdope.com/t/legalities-of-a-recipe/301607/29 "2005-05-03T01:00:22Z")
> [@Manduck](#): > > I am sure that the larger book has gathered recipes from many different sources, and one of those sources was the smaller book. Traditional or not, when all the recipes are identical down to the quarter teaspoon, there has to be some copying going on. A major hint about which direction that copying went is that the small book has an _author_, while the large one has _editors_. Also, the recipes in the Rani book are much more verbose that the versions of them in the big book, where the wording has been cut down to a bare minimum (while still describing the same actions). A more mundane explaination might be that struggling cookbook writers are often pressured to sign over **all** copywrite to the publisher in exchange for publication. A fairly successful cookbook writer on another messageboard complained about seeing lots of her recipes from the early days stripped of all identifying features including attribution, mangled beyond recognition and then published in huge compendiums because she didn’t know better about copywrite when she just started out. ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [May 3, 2005, 9:33am UTC](https://boards.straightdope.com/t/legalities-of-a-recipe/301607/30 "2005-05-03T09:33:43Z")
If you came upon the recipe from your employer and have not come across it elsewhere, you must not use it or disclose it. “The duty of the employee to look after and preserve the employer’s property extends to the employer’s physical property and also his intangible property such as his trade secrets, lists of customers and secret processes. The obligation exists while the employee is employed and continues after the employment has terminated. The former employee is free to compete with his ex-employer, either directly by operating his own business, or as an employee of another employer, so long as he does not disclose, or make use of, confidential information belonging to the employer.” _Dix on Contracts of Employment_ (5th Ed.), at p. 113, applied in _Monarch Messenger Services Ltd. v. Houlding_, [1984] A.J. No. 1018 (Alta Q.B.). If you honestly came upon the recipe elsewhere, you may write and publish the formula in your own words. “It is, I think, an elementary principle of copyright law that an author has no copyright in ideas but only in his expression of them. The law of copyright does not give him any monopoly in the use of the ideas with which he deals or any property in them, even if they are original. His copyright is confined to the literary work in which he has expressed them. The ideas are public property, the literary work is his own. Every one may freely adopt and use the ideas but no one may copy his literary work without his consent.” “In my opinion, the Tri-Tex chemical formulae are ideas and as such are not subject to copyright. The fact that these formulae were written or printed on paper or otherwise recorded on computer software does not mean that they are “literary works” within the meaning of the Act.” _Tri-Tex Co. v. Ghaly Tri-Tex Co. v. Ghaly_ et al. (1999), 1 C.P.R. (4th) 160 (Que. C.A.). Although not judicially binding, our government’s copyright policy branch does not quibble with the American stance on recipes per se not being subject to copyright. Robert G. Howell, Professor of Law, University of Victoria: _Database Protection and Canadian Laws_, Second Edition, citing _Publications Int’l. Limited v. Meredith Corp._, 88 F. 3d 473, 479-481 (7th Cir. 1996) and _Barbour v Head_, Unreported, No. G-01-491, Dec. 21, 2001 (S.D. Tex.: 2001). Even if the recipe were copyrighted, such protection would not extend to the food produced. “Were the law otherwise, every person who carried out the instructions in the handbook in which copyright was held to subsist in Meccano Ltd. v. Anthony Hordern and Sons Ltd. (1918) 18 S.R. (N.S.W.) 606, and constructed a model in accordance with those instructions, would infringe the plaintiff’s literary copyright. Further, as Mr. Fullagar put it, everybody who made a rabbit pie in accordance with the recipe of Mr. Beeton’s Cookery Book would infringe the literary copyright in that book.” \*Cuisenaire v. South West Imports Ltd. \*, [1969] S.C.R. 208 (S.C.C.), applying _Cuisenaire v. Reed_, [1963] V.R. 719 (Aus). Don’t worry about the common law / statute issue. In Canada, when the government made the statute law, it wiped out the common law. Here copyright starts when the work is created whether or not it is published. _Copyright Act_, R.S. 1985, c. C-42, at s. 5 (1.2) and 5 (1). Quite apart from the law, always remember that when “stealing” recipes, the chief from whom you are “stealing” may have a knife collection. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [May 3, 2005, 1:51pm UTC](https://boards.straightdope.com/t/legalities-of-a-recipe/301607/31 "2005-05-03T13:51:43Z")
> [@InvisibleWombat](#): > > Thanks for all the information, **acsenray**. I understood everything except the above quoted material (and I am quite familiar with the patent laws, as I have a patent pending now). > > How can publishing something kill the copyright? If I have a published book that says on the title page, “©2005 by _InvisibleWombat_,” how can that kill my copyright to the material therein? The key here is to understand that for at least the last century or so, almost all rights related to copyrights is derived from federal statute, which largely replaced common law copyrights. In our world today, common law copyrights are for the most part irrelevant. They come up occasionally in strange situations, but not often enough to require you to know anything about them. Which is why it might have been a mistake for me to bring the subject up. However, I did bring it up because someone mentioned the significance of “publication.” And, really, for the purpose of establishing ownership of a copyright, publication is not relevant under modern, statute-based copyrights. Publication, however, _was_ an important issue in the common law copyright era. Common law copyrights are quite different from modern statute-based copyrights and the most significant characteristic is that, yes, your rights end with publication. Common law copyright protects only _unpublished_ works, and, unlike statute-based copyrights, they are perpetual. So, so long as you don’t publish, you hold common law copyright. This really is of no significance to any of us here, because whatever we’re talking about is going to be protected by statute-based copyright law anyway. ---
**Author:** ![Exapno\_Mapcase](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/exapno_mapcase/32/1051_2.png) [@Exapno\_Mapcase](https://boards.straightdope.com/u/Exapno_Mapcase)\ **Post date:** [May 3, 2005, 5:22pm UTC](https://boards.straightdope.com/t/legalities-of-a-recipe/301607/32 "2005-05-03T17:22:02Z")
I don’t agree. I’ve never heard that unpublished works in the common law era had perpetual copyright and I don’t even understand what that would mean. And it doesn’t matter under today’s law in any case, because there are statutory provisions for what happens with any work that had not been previously published under one of the older laws. [Here’s](http://www.authorslawyer.com/c-term.shtml) the handy-dandy chart I always refer people to. Note that it has provision for unpublished works of any age. Common law copyright no longer exists in any form under U.S. law, to my understanding. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [May 3, 2005, 6:01pm UTC](https://boards.straightdope.com/t/legalities-of-a-recipe/301607/33 "2005-05-03T18:01:22Z")
> [@Exapno Mapcase](#): > > I don’t agree. I’ve never heard that unpublished works in the common law era had perpetual copyright and I don’t even understand what that would mean. According to _Donaldson v Beckett_, 4 Burr 2408, 17 Parl Hist Eng 953 (HL 1774), common-law copyright protects a work in perpetuity. This right was abrogated by statute; specifically, the Statute of Anne (1709), which put a time limit on copyright rights. Now this does not apply exclusively to unpublished works, of course. However, after U.S. states began adopting copyright statutes, but before the Congress got into the game, the U.S. Supreme Court ruled in _Wheaton v. Peters_, 33 U.S. 591 (1834), that published works were subject to state law, but unpublished works were still protected under common law copyright law. That meant that published works were subject to a limit set by state law (a statute, if one existed), but unpublished works were protected perpetually. That’s when it became of interest whether a work had been “published” or not – it was a matter of applicable law. Player piano rolls could not be read, and, thus, their distribution did not constitute publication. > [@](#): > > And it doesn’t matter under today’s law in any case, because there are statutory provisions for what happens with any work that had not been previously published under one of the older laws. > > Of course, everything changed with the Copyright Act of 1909. But there still are occasional instances when weird issues crop up. For example, in _Capitol Records Inc. v. Naxos of America Inc._ (April 5, 2005), the New York Court of Appeals ruled that common law copyright protected sound recordings that were made before 1972 in England, where they had gone into the public domain. > > [Here’s](http://www.authorslawyer.com/c-term.shtml) the handy-dandy chart I always refer people to. Note that it has provision for unpublished works of any age. Common law copyright no longer exists in any form under U.S. law, to my understanding. As mentioned in the _Capitol Records_, case, they do still exist with regard to sound recordings made before 1972. Prior to amendments adopted in 1971, the Copyright Act did not grant protection to sound recordings. They will continue to exist until 2067, when complete federal preemption goes into effect. So, in this case, there does exist perpetual protection of common law copyrighted works; for the next 62 years anyway. Perpetuity ends thus. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [May 3, 2005, 6:04pm UTC](https://boards.straightdope.com/t/legalities-of-a-recipe/301607/34 "2005-05-03T18:04:38Z")
> [@acsenray](#): > > they do still exist with regard to sound recordings made before 1972. … with regard to _some_ sound recordings made before 1972, I should say. ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [May 4, 2005, 2:07am UTC](https://boards.straightdope.com/t/legalities-of-a-recipe/301607/35 "2005-05-04T02:07:16Z")
And so it is prophesied – the heavens and the earth and the waters, and all perpetual celestial music therein, shall end on the fist minute of the first hour of the first day of the year 2067. :eek: ---
**Author:** ![Muffin](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/muffin/32/4341_2.png) [@Muffin](https://boards.straightdope.com/u/Muffin)\ **Post date:** [May 4, 2005, 2:08am UTC](https://boards.straightdope.com/t/legalities-of-a-recipe/301607/36 "2005-05-04T02:08:59Z")
Anyone know of any common law nations that are not party to Berne? [Previous page](https://boards.straightdope.com/t/legalities-of-a-recipe/301607.md?page=1)