Discussions about protecting intellectual property often focus on cutting-edge technologies, corporate branding campaigns, and widely distributed artistic works like movies and music.  But let’s mix things up a bit.  Follow us through this four-part series as we answer a question that is sure to hit home for chefs, bakers, restaurateurs, home cooks, and anyone else with taste buds—can you protect a food recipe?  Join us as we dissect whether food recipes are eligible for copyright protection (Part 1), patent protection (Part 2), trade secret protection (Part 3), and even trademark or trade dress protection (Part 4).

PART 1:          Are Food Recipes Eligible for Copyright Protection?

Copyrights provide a copyright holder with the exclusive right to reproduce, distribute, publicly perform, publicly display, broadcast, and make derivatives of a particular work.  17 U.S.C. § 106.

But copyright protection only subsists in “original” works of authorship that are fixed in some tangible medium of expression (e.g., painted on a canvas, recorded on a hard disk, etc.).  17 U.S.C. § 102(a). Eligible “works of authorship” include literary works, musical works, dramatic works, pantomimes, choreographic works, pictorial and graphic works, sculptural works, sound recordings, and even architectural works.  Id.  Part of the “originality” requirement means that only expressive elements of a work—elements whose creation required at least some creativity—are eligible for copyright protection. See Harper & Row Publishers, Inc. v. Nation Enter., 471 U.S. 539, 556 (1985).  Facts, for instance, are off the table when it comes to copyright protection.  Id. (“The public interest in the free flow of information is assured by the law’s refusal to recognize a valid copyright in facts.”).  Facts are not eligible for protection because they are not created—they are discovered.  And although facts may be presented in an expressive manner, the underlying facts themselves are not expressive. Along that same thread, the Copyright Act expressly states that “[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 17 U.S.C. § 102(b).

Last week, the Northern District of Ohio addressed whether food recipes are eligible for copyright protection in light of the above legal framework.  See Tomaydo-Tomahhdo LLC et al. v. George Vozary et al., no. 1:14-cv-00469, at 1–3 (N.D. Ohio Feb. 28, 2014).  In Tomaydo-Tomahhdo, a restaurant group sued a competitor for allegedly infringing the restaurant group’s copyrights in a recipe book entitled “Tomaydo Tomahhdo Recipe Book.” Id.  The group demonstrated that it owns a U.S. copyright registration covering the recipe book (U.S. Copyright Reg. No. TXU 001885766) and alleged that the competitor had infringed the copyrights by using certain recipes without permission.  Id.

In response, the competitor moved for summary judgment, arguing that the group’s copyright only covered the layout and other artistic embodiments contained in the book—not the recipes themselves.  Tomaydo-Tomahhdo, at 3, 5.  The restaurant group argued that the competitor had infringed by creating derivative works—menus, offerings, recipes, and presentations of food that were virtually identical to the elements of their copyrighted recipe book.  Id.at 5–6.

The court rejected the copyright owner’s arguments and ultimately granted summary judgment in favor of the competitor.  Id. at 6–7.  In doing so, the court explained that “[t]he identification of ingredients necessary for the preparation of food is a statement of facts.  There is no expressive element deserving copyright protection in each listing.”  Id.  The court further concluded that “recipes are functional directions for achieving a result and are excluded from copyright protection under 17 U.S.C. § 102(b)” and confirmed that any available copyright protection would only extend to creative manner in which the recipes were presented.  Id.

Other courts, too, have refused to acknowledge purported copyright protection covering recipes.  See, e.g., Harrell v. St. John, 792 F.Supp.2d 933, 942–44. (S.D. Miss. 2011) (finding recipes not eligible for copyright protection where they lacked any literary expression and were “nothing more than a list of ingredients with very basic assembly or preparation instructions.”); Publications Intern., Ltd. V. Meredith Corp., 88 F.3d 473, 478 –82 (7th Cir. 1996) (finding recipes in a copyrighted recipe book excluded from copyright protection under 17 U.S.C. § 102(b)); Lambing v. Godiva Chocolatier, 142 F.3d 434, at *1 (6th Cir. 1998) (unpublished) (“[R]ecipes are functional directions for achieving a result and are excluded from copyright protection under 17 U.S.C § 102(b).”); Sassafras Enterprises, Inc. v. Roshco, Inc., 889 F.Supp. 343, 347 (N.D. Ill. 1995) (concluding recipes are ineligible for copyright protection because they “dictate themselves and flow from the characteristics and intended use of the product, not form the imagination of any independent author.”).

At least one court, however, has refused to so quickly dismiss the possibility that recipes—or at least parts of them—are eligible for copyright protection. See Barbour v. Head, 178 F. Supp. 2d 758, 762–764 (S.D. Tex. 2001).  In Barbour v. Head, the Southern District of Texas refused to hold that certain recipes in plaintiff’s Texas-themed cookbookCowboy Chow were ineligible for copyright protection as a matter of law. Id. Although the court acknowledged that recipes containing nothing more than recitations of cooking ingredients and instructions are ineligible for copyright protection, it explained that the Cowboy Chow recipes were arguably “infused with light-hearted or helpful commentary” that could conceivably qualify as protectable expression.  Id.  On that basis, the court refused to grant summary judgment in favor of the accused infringer.

The Copyright Office has also weighed in, noting: “Copyright law does not protect recipes that are mere listings of ingredients . . . Copyright protection may, however, extend to substantial literary expression—a description, explanation, or illustration, for example—that accompanies a recipe or formula or to a combination of recipes, as in a cookbook.” U.S. Copyright Office. Factsheet FL-112: Recipes (Feb. 6, 2012).  In its circular entitled Copyright Protection Not Available for Names, Titles, or Short Phrases, the Office states that it “cannot register claims to exclusive rights in . . . [l]istings of ingredients, as in recipes, labels, or formulas.”  The Office also notes, however, that “[w]hen a recipe or formula is accompanied by an explanation or directions, the text directions may be copyrightable, but the recipe or formula itself remains uncopyrightable.”  U.S. Copyright Office. Circular 34: Copyright Protection Not Available for Names, Titles, or Short Phrases, at 1 (Jan. 2012).

Thus, we return to the original question that prompted this four-part series—can you protect a food recipe?  As far as copyright protection is concerned, the answer is “no” with respect to the recipe itself—the identification of necessary ingredients and how to combine them.  But you can potentially protect certain commentary, illustrations, or other expressive elements used to present the recipe.  In any event, however, the Copyright Act affords copyright owners no ability to prevent others from using a purportedly protected recipe to make and sell food.  Stay tuned for the next part of our series as we investigate whether patent protection offers a viable solution for chefs, bakers, restaurateurs, home cooks, and other recipe authors.