UNABLE TO COPYRIGHT YOUR RECIPE? CAN YOU WRITE A ROMANCE NOVEL?

There are only a few food bloggers that I have opted-in for their update; none as informative and thought-provoking as Dianne Jacob’s blog, “Will Write for Food.”

If you do not know Dianne (I would be surprised, dough) she is an award-winning author, coach and highly sought after speaker. I learned about her expertise by reading her book: “Will Write for Food.” I found the book exceedingly informative and easy read – so much so – that I left my inhibition in the kitchen and contacted her from my bedroom. I was hoping that she would react positively to my seeking to hire her as my coach.

I got lucked out – she was available and I was on my way to make myself as “sticky” as possible. I felt confident that something would rub on me, purely by association.

I definitely felt the improvement in my work after our brief encounter, but I still have a long way to go to meet my goal, so as you can imagine I continue to dream about repeating the experience.

But this is not what I wanted to write about in this post. I got carried away, but rumors tell me that it happens to many people when talking about Dianne.

I never miss her posts because I am receiving it in my inbox and her message will be the first thing I read when I see it.  Her most recent post, titled “Trouble for Two Recipe Adapters” brought to our attention a very important issue in recipe writing: “Whose recipe is it?”

The story is about a TV chef whose show was cancelled abruptly and accused of plagiarizing her recipes, including a chocolate frosting and a lemon bar. WOW! Can you imagine how many cookbook authors, TV chefs, food bloggers, and other food writers should be banned from publishing recipes or having a food show if we would check their chocolate frosting or lemon bar recipes?

In addition, the post also reports about a food blogger who was harassed by a cookbook author for using his recipe, protected by the copyright law, on her blog and refusing to remove it.  Well, actually he is wrong, but I’ll go over this a bit later.

Many of the people that commented on Dianne’s blog (which swelled to over 100 by now) questioned the real motives behind the accusers in both cases and rightfully so. Most likely the recipes in question can be found by the hundreds online, or even in cookbooks. Moreover, most cookbook authors are flattered by spreading the word about their recipes.

This topic intrigued me so much that I decided to look into these issues a bit deeper and create a post from it.   My first question about the ownership of a recipe has to do with how loosely we use the words “adapted”, “tweaked”, “adjusted”  “altered” and “changed.”   Adapted, defined by a FREE Dictionary as “make suitable to or fit for a specific use or situation.”  Ha?!  So, I can adapt a recipe to make it suitable for my blog, right? Or, I can adapt a recipe because it fits into my story.

Webster is adding a definition that I actually like: adapting is “changing to suit a new purpose.” I can change the recipe for my purpose, which is making money with it. I love it.

Tweaking is even better. There are classes of “Tweaking 101”, and there are food bloggers and even chefs that call themselves the “Tweaking Experts”.  BTW the definition of tweaking is “making small adjustments or modifications to improve a system or in this case the recipe.” This makes sense in practice, because most of the times we are seeking to improve a recipe that we think is lacking a pizzazz.

We all know by now, that most recipes are copyright free; meaning you may copy the list of ingredients and even the directions of a single recipe in any media you want. It’s the recipe name and the “method” of preparations that are subject to the copyright law.

What you can deduct from this is that if you are creative in naming a recipe and innovative in crafting a method you can protect your “tweaked”, “altered”, “adapted” work, if you so wish. However, it is still a professional (and common) courtesy to give credit to the originator (which may not be an easy task) and to the site of the original source.

What I see so far the problem with the protection of original recipes is the ambiguous language of the device we use to safeguard our proprietary work; all it does is opens our understanding to a myriad of interpretations. We could drop, or at least cut the number of lawsuits by coordinating and simplifying the rules. Just as we are discussing the benefits of simplifying the tax codes, we could do the same to the copyright laws.

As I was surfing and seeking to find more answers it suddenly dawned on me:  how come nobody mentioned other intellectual property rights like patenting a recipe?

Prior to getting myself deeply involved in mixing chocolates with heavy cream and butter, or whipping lots of egg whites with vinegar, I was mixing powdered hormones into medicinal grade ointment to create personalized suppositories for ovulation, or worked hard to dissolve unruly ingredients in alcohol to prepare rubs. We were approached by lawyers specializing in intellectual property rights to submit a patent application (which we never did because of its complexity and cost)

Here are my questions: what is the difference between mixing food ingredients or medicinal products?  What about genetically modified vegetables, or metabolically engineered fish, or fruit trees that yield years earlier and so on…

Surely enough, I was coming across a myriad of products that use patents to protect their inventions.  Why? Because it is patents that protects creations (i.e. recipes) or discoveries – copyrights protects creative expression (i.e. the creative text in describing the methods of preparation in a recipe)

However, these were all single products, not compositions that combine individual items via a certain method to create a new product. So, I continued my search for patented recipes.   Interestingly, I found an answer to Joanne Gruskin’s comment (or rather question) in Diane’s blog:  “isn’t a banana sometimes just a banana?” Not really Joanne. I found bananas that produce human vaccines against infectious diseases, such as Hepatitis B. Would you think about the use of banana for medicinal purpose?

According to the U.S. Patent and Trademark Office, food recipe patents fall under Patent Class 426 – Food Or Edible Material “intended to be consumed by human beings or lower animals in whole or part via the oral cavity.”  In order to gain patent protection, the recipe must be useful, novel and non-obvious. Here we go again: how you prove that the composition I just created is not obvious to others, except to me?

So, What Can Be Patented

Let’s say you have created a new recipe for hot cocoa.   If some of the ingredients have never been combined/mixed together, or the order of combining them is new, and don’t forget the not obvious part you can get you hot cocoa patented as “a composition of matter.”

Many processes might make your recipe patentable (i.e. heating, frying, sautéing, poaching, baking, bottling, canning, aging, blanching, grinding, whipping, mixing, freezing, melting, dehydrating, layering, stamping, molding, smoking and grilling, all patentable)

I do not want to extend this article to its most boring stage  (although, I am not sure if storing peanut butter and jelly in the same container is patentable, can be called boring; more like ridiculous) so I will be concluding my ranting; but still do not see a conclusion, or a deduction. I got the idea that these issues are complex and not solvable in a one-minute post on a blog – but still, where I am going from here?

The absurdity of what is patentable, or protected by copyright is obvious. If sponge cake that can rise when microwaved (6,410,074), single-dough cookies that store well [(4,344,969) (increase shelf-life)], ingredient that can replace fat (5,466,479) sugarless bakery goods (5,804,242), controlling cookie geometry [(5,374,440) (the shaping of the cookie)] and confections that swim in a carbonated beverage (6,319,535) can be patented than I guess anything goes.

An important thing to consider in patenting your recipe is the writing of it  – if you write the recipe too broad it will be thrown out (not accepted by the agency), but if you write it too narrow than potential competitors will learn your method through the patent, go around your claim with a minor variation and wallah they have a patented product competing against yours.

So, if you are not yet confused enough, I will help you to get confuse even further. This is one of the reasons that some companies prefer to keep their recipe “trade secret.” One of the most famous examples of a trade secret is the formula of Coca-Cola that is kept in a vault of a bank in Atlanta, Georgia. The people who know the secret formula have signed non-disclosure agreements, and it is rumored that they are not allowed to travel together.

One of the advantages of trade secret, aside from protecting the recipe from the competition is that it is open-ended. As long as the secret does not become known in public it is protected; could mean 100ds of years. Copyrights are issued for 100 years and patents are issued for 20 years only.

If you are thinking to patent your grandma’s recipe that you found in the attic, think again. Patent can only be issued to the inventor, your grandma. Also, you can assume that a recipe that old must have been disclosed somewhere, sometimes.

This leads me to another interesting issue with this topic. Lets assume that you created an innovative recipe for making quince muffins and you decided to test market it by taking to a function. That’s it. These muffins can no longer be patented, or declared to be protected by “trade secret” – even if you did not divulge the recipe to anyone. Serving the muffins in public considered public disclosure.

You could copyright it within a cookbook.  If a group of non-copyrightable recipes is collected (“compiled”) into a book, then the compilation is protected, except the single recipe (the quince muffin) that is contained in a compilation (it would be too easy).   However, if the quince muffin recipe is accompanied by a substantial literary expression (i.e. the method of preparation or the direction for combining the ingredients is written like a poem, or like an 18th Century mystery) there may be a basis for copyright protection.

For example, read the following interesting story and use it in your future endeavors:  The following paragraph was taken from a book, titled: The Great American Barbecue & Grilling Manual; specifically, it is the direction for turning a steak on a grill:  “Allow the meat to heat up.  When the grill is right, wipe the steaks dry and place the steaks carefully and firmly upon the grill.  Then leave them alone!  Do not touch them, talk to them or worry them in any way!  Steaks know when they need to be turned and will show you — if you let them.  When a ready steak meets the heated grill, they seize each other with the intensity of newlyweds. At the proper time, they will turn loose.  Flip them over with a spatula, not a fork.  They will grab each other again.  When they turn loose the second time, the honeymoon is over and it’s time to get on with business.”

A perfect example of a copyrightable recipe.  Now I am really going complete this story using Donata Thomas’ comment on Diane’s post:  “I could really care less if Ina or Martha or Julia or whoever has used the recipe before, and quite frankly, have never watched or read anything completely original from any of the fore-mentioned, what I’m looking for is someone who sparks my curiosity, or maybe someone who is a great story teller, or someone who sparks my creativity, or shares a similar world view, or is just so different enough from my self that I want to learn more about their ways.”

Well-said Donata. I hope you will not sue me for using your comment. Actually you can add your comment with a minor tweak as part of the quince muffin recipe and we got a patented product that is also protected by copyright.

Anyone that read this post up to here deserves an Oscar.

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Comments

  1. Okay, do I get an Oscar? I was inspired by your post to read it all the way through. Thanks for your thoughts. I loved the language you used for the steak recipe.

    • Hi Dianne,
      Sorry about the delay; I missed your message earlier. I will certainly vote for your receiving an Oscar. Unfortunately, my connection in that area is limited to watching the ceremony on TV (and checking the fashion). The writeup in the method section of the cooking of the steak is a good example of what a creative writer can do with a recipe if he/she aims to have a shot at copyrighting it.

  2. Whew – I’m exhausted! What a mammoth post, with a remarkable amount of information to absorb.
    As the food blogger in question in Diane’s original post on the matter, I would just like to point out that I had adapted the original recipe as per the dictionary definition, modifying the ingredients slightly to suit my purpose and modifying the method totally to suit making the dish in a Thermomix. I had also credited Mr. Lepard as the source of my inspiration, named where the original recipe was published (in a public domain, on the internet!) and linked directly to it. I had infringed no copyright and fulfilled all my ethical responsibilities according to my conscience.
    I had no idea that taking a stand for myself was going to create such broad discussion, but am very glad it did!

    • Hi Amanda,
      Thanks for your visit and for reading the post. I guess you deserve two thumbs up for standing up for your right and for reading this post in its entirety. As I said in the post the copyright protection for the individual recipe in Mr. Lepard’s book is still a grey area. Based on what I have learned through this research, his book is copyrighted “as the compilation of recipes”, not the single recipe that you used as your inspiration for your own version. Now, of course your recipe cannot be copyrighted either, unless you were a great storyteller in the method section.
      So, just keep the good work and enjoy your creations.

  3. I just was Googling around (When I have time, I Google myself to find the awful things people are saying about me, then I Google my daughter and wonder if I really know her.) and found your reference to my comment about the banana on Dianne’s blog post. I wasn’t literally referring to a banana, but meant to reference Freud’s version. The chemistry of the banana wasn’t what had me baffled, although it probably should have, as bananas give me migraine headaches, but it was the much ado about the lemon whatever it was recipe that inspired the firestorm of verbiage on Will Write for Food.
    Dianne probably thinks I expired because I’ve been working on a cookbook proposal but took the last few months to finish a webinar that my daughter and I have spent the last 2 years working on. We finally finished it and now we’d better figure out a way to protect our work. Back to the cookbook proposal–That’s much more fun.

    • Hi Joanne,
      Thanks for the update, but mainly I am delighted that you found me and cleared the banana issue. I do not remember the story, but I think it was the copyright issue for recipes? That story intrigued me so much that I had to make a post out of it. You are talking about your cookbook but did not mention what is the title? How are you doing with the publishers? What about the Webinar? I mean what ae you doing on the webinar?

      I am looking for partners for webinars, if you want learn more about it, or perhaps you maybe interested to learn about my ideas, please send me a note.

      Sory about the delay in responding but I was not well.

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