Want to Copyright Recipes? Maybe They Should Rhyme

A Cleveland food fight between former partners is a lesson on the limits of copyright protection. Restaurants open and close faster than ever. Big investments become total losses, and teams turn into opposing parties in court. It’s understandable that people search for nuggets of intellectual property to gain competitive advantage or rescue something from the investment. Too often the search starts among the ruins instead of when the structure is being built.

A lawsuit filed by the people behind Tomaydo-Tomahhdo said a former partner who started Caterology was a copyright infringer for copying recipes. There were many other claims based on Ohio state law including breach of contract, but the lawsuit was filed in federal court because that is the only court with jurisdiction over claims under the Copyright Act. Tomaydo-Tomahhdo, LLC v. George Vozary, et al, Case No. 1:14Cv 469 (Northern District Of Ohio). 

Caterology won in a summary judgment order by Judge Patricia Gaughan on January 29. To win a copyright infringement claim, you must have a valid copyright and show the defendants violated one of the exclusive rights granted to copyright owners. Caterology said it did not copy recipes, but that didn’t matter. Judge Gaughan ruled that Tomaydo-Tomahhdo did not have a valid copyright in each recipe.

The problem for recipes is the Copyright Act says in “no case does copyright protection …extend to any idea, procedure, process, …method of operation….” 17 USC §102 (b). And that’s what a recipe is. Ingredients: 9 inch pie shell, two cups of pecans, three eggs, etc. Method: preheat oven to 350°,mix eggs, brown sugar…. The ingredients and steps in the recipe are a method of operation. Each is a fact. Copyright protection does not extend to them.

Tomaydo-Tomahhdo had a copyright registration for a cookbook as a “compilation.” A compilation is a group of pre-existing materials selected, coordinated, or arranged in a way that is protected by copyright. The pre-existing materials are not protected, copyright applies only to the way they are put together. If Tomaydo-Tomahhdo’s cookbook had photos, reviews, interviews, or drawings embellishing the recipes, and if Caterology produced a cookbook resembling it, the outcome may have been different. Apparently the cookbook was naked recipes on one page after another.

A Seventh Circuit decision involving dueling food magazines nearly twenty years ago explained “…the author who wrote down the ingredients for ‘Curried Turkey and Peanut Salad’ was not giving literary expression to his individual creative labors. Instead, he was writing down an idea, namely, the ingredients necessary to the preparation of a particular dish.” Publications Int’l Ltd. v. Meredith Corp Publications Intern., Ltd. v. Meredith Corp., 88 F. 3d 473 (1996).

The Meredith decision carefully avoided saying recipes could never be protected by copyright. If you are determined to protect them, basic copyright law doesn’t prevent protection of literary expression of a list of ingredients and cooking steps. That may make them difficult to follow in the kitchen, or just seem silly. And if people extract the ingredients and steps from the literary elements, they may not be copyright infringers either.

In the 19th and early 20th centuries, however, rhyming recipes were common. As poetic forms served other subjects for centuries, they were memory devices for cooks without cookbooks or 3×5 cards. If you don’t want your recipes kept as trade secrets, and you don’t want them copied without a license from you, memorable meals from memorable recipes might be one of the few ways to go.

About Craig Pinkus

Craig Pinkus is a partner in the Intellectual Property Group. He also is a member of the Litigation and the Sports, Entertainment and Media Groups. He assists clients with a broad range of disputes and transactions involving all areas of intellectual property, entertainment, and other complex business arrangements. He has conducted trials and arbitrations throughout the United States and has argued appeals before the Seventh, Sixth and Federal Circuit Courts of Appeal, the Indiana appellate courts, and United States Supreme Court.
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