Guide Through the Legal Jungle

More Legal Issues in Julie & Julia

In my last posting, I began discussing the book Julie and Julia: 365 Days, 524 Recipes, 1 Tiny Apartment Kitchen. I noted that while I saw no copyright issues with respect to Julie Powell’s discussion of Julia Child’s recipes from Mastering the Art of French Cooking, I did see other rights issues.

The real rights issue with respect to Julie and Julia is right of publicity. Julia Child’s estate could have accused Powell and her publisher of using Julia Child’s name and persona to promote Powell’s book. Julia Childs name forms part of the book title. Also, there’s a book promotional trailer that includes Julia Child’s image. As an aside, I highly recommend viewing the trailer which you can find here.  It is hysterical and very well-done.

Are Recipes Copyrightable? – Rights Clearance Observations about Julie & Julia, Deceptively Delicious, and The Sneaky Chef

I recently listened to – and enjoyed – the audiobook version of the memoir, Julie & Julia: 365 Days, 524 Recipes, 1 Tiny Apartment Kitchen.  It’s the story of Julie Powell, an aspiring actress who works in an unfulfilling temp. secretary job and who struggles for some direction in her life as she approaches her 30^th birthday.

Powell takes on the project of cooking every recipe in Julia Child’s Mastering the Art of French Cooking. Her hope is to use cooking as a therapeutic method that will save her soul and rescue her life.  She shares her progress in a blog which soon becomes wildly popular and generates an offer from Little, Brown and Company to write a book about the project. Powell’s Julie & Julia has sold over 100,000 copies.

Recipe Copyright Issues in Julie & Julia

It’s a professional hazard of entertainment attorneys to contemplate rights issues as we watch movies, read books, and view other means of media. The first rights question occurring to the reader might be the use of Julia Child’s recipes in Julie Powell’s blog and book.

Raspberry Recipe Rip-Off

 

A Guide Through the Legal Jungle Trivia Question

Next week, I’ll begin a blog series on recipes and copyrights. The series will include my commentary on rights issues in two culinary-related books, Deceptively Delicious: Simple Secrets to Get Your Kids Eating Good Food a cookbook written by Jessica Seinfield, the wife of comedian Jerry Seinfeld, and Julie & Julia in which a New Yorker chronicles her project of  cooking every recipe in Julia Child’s Mastering the Art of French Cooking.

This recipe-related Saturday trivia question is a kick-off for the series. Colleen Mulcrone, a law school student who worked with me as a summer 2007 research assistant, contributed an initial draft of this question.

Frankey has created her own special raspberry pie. She writes down the recipe, signs it, and distributes copies of the recipe at the Bonaroo Music Festival. A couple months later, she sees her recipe, printed almost word-for-word, in a newly published cookbook, Munchies for Music Fans. Does Frankey have a copyright infringement claim against the writers of the cookbook?

1. Absolutely Yes.
2. No. Recipes are not copyrightable. Frankey’s recipe is a procedure, and procedures are not copyrightable.
3. Maybe. If Frankey's recipe contains expressive elements that were duplicated in the Munchies for Music Fans. cookbook,she may have an infringement claim.
4. It depends on how distinctive the ingredients in Frankey’s recipe are when compared to other raspberry pie recipes.

How Not to Write a Cease & Desist Letter

A cease and desist letter is a letter that a rights owner or her attorney sends to someone who is allegedly infringing the rights owner’s copyright, trademark, or other intellectual property asset. In the letter, the rights owner explains how your actions are violating her rights and demands that you stop such activities.

Cease and desist letters usually carry the threat of additional le­gal action, usually a lawsuit, if the activity does not stop. Sometimes, the rights owner means busi­ness and has the intention and the resources to follow through with a lawsuit if you fail to comply. However, other cease and desist letters are the equivalent of the rights owner huffing and puffing with no real power to blow your house down. The rights owner may have a weak or no valid legal argument against your activities and hopes that the cease and desist letter will scare you into compliance. In effect, the rights owner is just bluffing. Sometimes the recipient calls the bluff. A cease and desist letter too strongly worded can backfire as bad publicity for the sender.

Step Number One in Understanding the Music Business. Distinguishing the Song, the Sound Recording, and the Phonorecord.

Whenever I do a seminar on music law, I always start by explaining the differences in a song, a sound recording, and a phonorecord. To understand music law, it’s crucial not to confuse the three.

A song consists of a melody and any accompanying lyrics. The Copyright Act refers to songs as musical works. Typically, the copyright in a song is owned by the songwriter or by the songwriter's music publishing company. 

A sound recording is the recorded rendition of a song. The copyright in a sound recording is typically owned by the record label that released the recording. Within the music industry, a sound recording is often referred to as a master.

Phonorecord, another term coined by the Copyright Act, is any material object onto which sound can be recorded such as an audiocassette, a compact disc or a vinyl record. Note that phonorecords contain audio only so motion pictures, home videos and other audiovisual productions are not phonorecords. When you obtain digital version of a phonorecord via the internet, the Copyright Act refers to the output as a digital phonorecord delivery or DPD.

Copyright Seminar in Arlington, Virginia on Saturday, January 12

On Saturday, January 12, 2008,  at 2:00 p.m., I'll offer a presentation on “Copyrights and Licensing for Creative People” at the Arlington County Central Library.  The presentation covers copyright and licensing issues relevant to your books, websites, music, artwork, and video productions.  A book signing of The Permission Seeker’s Guide Through the Legal Jungle follows the presentation.  There is no admission fee.  The library is located at 1015 North Quincy Street, Arlington, Virginia, 22201.  The library offers free parking and the Ballston station metro stop on the Orange Line is three blocks away. For additional information, call the Arlington County Central Library at (703) 228-6321.

Five Good Reasons to Clear Rights Properly and to Request Permission When Needed

I recently participated in a Women In Film & Video (WIFV)-sponsored panel discussion about legal issues for producers.  Having just written a book on the topic of rights clearance, I was tasked with explaining the rights clearance process to the attending film and television producers.

Here’s my shorthand explanation of rights clearance - When you clear rights, you verify that there’s no material in your production that is going to get you sued or prevent distribution of your production. Clearing rights properly involves considering copyright, trademark, privacy, publicity, defamation, and other laws. Getting the permission you need can also involve doing paperwork, incurring legal expenses, and transgressing down more than a few dead ends.

So why bother to go through rights clearance process? I decided to start my panel remarks by addressing that very question: