Who Owns This Recipe?
Copyright is very confusing in relation to recipes. After all, recipes are passed around from friend to friend, family member to family member. It can be hard to know whether or not sharing a given recipe is OK.
This article will hopefully clarify whether or not a recipe is yours for sharing and/or publishing in a cookbook or online.
“Lists of ingredients are not copyrightable.”
You're exactly correct. What does this mean? It means that if you use all the same ingredients in a recipe (for example, in making applesauce you use apples, cinnamon, and sugar, just as in another recipe you know about) then that doesn’t necessarily mean you are infringing on someone’s copyright. You can use all the same ingredients as another recipe. You can also use ingredients found on an ingredient list. For example, you can copy an ingredient list off a product at the store and formulate a recipe around it, and it’s yours. The amount used is something debatable. I would probably make sure the amount used of each ingredient differs from the original recipe.
“I changed two (or however many) ingredients, so the recipe is mine.”
This is inaccurate. Many people keep the cooking instructions exactly the same as the original recipe, though they may modify the ingredients to be allergen-free. The cooking instructions are, in fact, what is copyrightable in recipes! So even if you changed all of the ingredients, if you kept the cooking instructions the same, then you have infringed on the copyright.
High school and college students are taught that if they have more than two words in a row (for example, three words in a row) without putting them in quotes and giving credit to the originator, they are plagiarizing. This is a more difficult call in the case of recipes. After all, “bake at 350” isn’t exactly copyrightable, and is in many recipes! However, it is the cooking instructions that are protected, so be sure to write these on your own.
“They didn’t file for a registered copyright, so it’s OK to reprint.”
This is no longer true. People no longer need to register a copyright in order to claim copyright protection (this is called “implied copyright”).
“I can take a few recipes out of a cookbook and republish them as my own since they are less than 10% (or whatever percent) of a work.”
Many people erroneously think that, in the case of books and music, for example, they can take a small portion of the work and duplicate it, and they are thus not breaking the law. However, such is not the case.
“I’m not making a profit off it, so it’s fine for me to post it.”
Many people believe that they can reprint something as long as they are not making a profit from it. Not so. I was informed by one cookbook author that I could possibly post one recipe from her cookbook for one month as long as I could guarantee to her publisher that it would not be archived anywhere, and would agree to remove it immediately. I decided it wouldn't work (other websites often hold a cache of webpages), and of course I was not going to make any profit from it (it was going to be free advertising for her book). To reprint someone else’s recipe – even online – you must first garner permission.
If you do make money off a recipe that looks similar to another author’s recipe, you could be in even bigger trouble than if you don’t. So be very careful whether you are expecting to make a profit or not.
“I’m confused. How do I know for sure if it’s my recipe?”
What I do is to ask myself, “If I were the person whose recipe I based this on, would she recognize it as based on her own?” If so, then I feel it is not right for me to post it. Aside from possible lawsuits that could erupt from copyright infringement, you could hurt someone’s feelings. It is a lot of work to make an allergen-free recipe--and very devastating to see it appear with someone else’s name on it!
What I enjoy doing most is copying ingredient lists rather than basing my recipes on old recipes. This is a surefire way to guarantee that I am not going to be in violation of anyone’s copyright.
“But I just want to write one recipe on a recipe card and give it to my friend . . .”
What I ask people to do if they write any FAST recipes on recipe cards is probably what most authors would request. Write down the author, name of the book (or website), copyright information, and publisher or URL (website address). This acts as free advertising for a cookbook or website, and I doubt many authors would argue with this. (This does not go for online posts on mailing lists, but only for sharing with friends.) If you feel uncomfortable with or unsure about this, just recommend the book or website to your friend. And be sure to drop the publisher or originator a snail-mail or e-mail if you feel uncomfortable or unsure about anything.
"How do I officially register and protect my own recipes?"
All you need to do is visit the US Copyright Office website and print and fill out a form, print your recipes, and send them a fee (the last time I filed, it was under $40). Another way to protect your recipes is to not share them with anyone. Of course, this isn't too much fun, since we all want to try your faux cheesecake. However, this is often why so many goodies remain secret family recipes!
For more information, read FL122, available from the US Copyright Office. Also, the following are some articles that member Richard thinks others may find helpful:
U. S. Copyright Office - Recipes
IPWatchdog.com - The Law of Recipes
Recipes: legal protection
(This last one is for Australia.)