This two-part blog posting on recipes is inspired by a comment asking me to address some questions that arose during a forum discussion among bed & breakfast owners. In the first part of this blog posting, I discuss the various ways one might protect a recipe. In the second part, I’ll provide general information responding to the commenter’s questions.
It’s not easy to protect a recipe. Legal methods by which one might try to protect a recipe include copyright, trade secret, contract, and patent. Each method has its problems when applied to recipes.
Protecting Recipes via Copyright Law
Copyright is the method people typically turn to first for recipe protection. However, many recipes are not eligible for copyright protection. Copyright law does not protect basic facts and it does not protect procedures and processes. A recipe that simply lists ingredients and basic cooking directions qualifies as a procedure or process and is not protected by copyright law.
In contrast, a recipe that incorporates expressive elements might qualify for copyright protection. These expressive elements might be sug¬gestions for presentation, advice on wines, and information on the origin of the dish. In The Permission Seeker’s Guide Through the Legal Jungle, I provide examples of a basic recipe that does not qualify for copyright protection and a more expressive recipe that might qualify for copyright protection. Even if an individual recipe is not copyrightable, a cookbook or a group of recipes may receive copyright protection as a compilation.
What Does It Mean for a Recipe to be Copyrighted?
If a recipe is protected by copyright, you cannot offer a verbatim or substantially similar copy of the written recipe in your own cookbook or website. The copyright does not prevent you from making and offering a dish based on the same recipes – even if you offer the dish for sale. Likewise, the copyright does not prevent you from extracting the raw information offered by the recipe – such as the list of ingredients and the preparation instructions – and using that information in your own recipes.
Methods Other than Copyright to Protect Recipes
Other potential legal methods to protect a recipe include trade secret, contract, and patent law.
Trade Secret. A trade secret is confidential information that provides a competitive business advantage to the individual or company that owns the confidential information. For example, the recipes for Coca-Cola and for McDonald’s secret sauce might qualify as trade secrets. As the name implies, the information must be a secret in order to be a trade secret. A published recipe is never a trade secret.
Contract. Technology companies often rely on contract when they are uncertain whether other forms of intellectual property law protection apply to their technology. People have tried the same contract approach for recipes. The contract might be in the form of the Terms of Service of a website you visit or a Non-Disclosure and Confidentiality Agreement your employer asks you to sign. Reliance on contract law sometimes requires and almost always works better if the recipe is treated as confidential information or is at least distributed to a limited group of people.
Patent Law. Patents apply to inventions and discoveries. Unlike copyright protection, patent protection is available for procedures and processes. Hence, it is possible for a recipe to obtain patent protection. However, most recipes do not meet all the patententability requirements of novelty, usefulness, and nonobviousness. For an in-depth explanation of how unique a recipe must be in order to receive patent protection, see the article on the IPWatchDog website, “The Law of Recipes: Are Recipes Patentable”. The author’s examples of patentable recipes include fat and egg yolk substitute, nut butter and jelly food slice, and sealed crustless sandwich.