Are Recipes Protected? Part Two.

In Part One of this two-part blog posting, I discussed the various methods one might use to protect a recipe. In this second part, I’ll apply those methods to issues raised by a commenter who has been discussing recipes in an online forum of bed & breakfast owners. The commenter’s questions are in italics. my responses are in regular type.

Commenter: I run a B&B and there’s a discussion in an Innkeeper forum about copyrights and recipes. Many of us use recipes that we’ve found online or through other means that were not developed by us originally. Many also publish their own internal cookbooks that their guests can buy. Here are a few points brought up:

If you list ingredients but change instructions, you’re okay

As noted in Part One, while recipes can be protected by copyright law, many are not because they are a basic list of ingredients and procedures. Nevertheless, it is risky to make and distribute verbatim copies of recipes from a cookbook or recipe-website. Even though the individual recipes themselves may not be copyright-protected, the collection of recipes itself may be copyright-protected as a compilation. I discuss copyrighted compilations in depth in The Cyber Citizen’s Guide Through the Legal Jungle.

Also as noted in Part One, even if a recipe is copyright-protected, you can still extract and share the facts within that recipe. Hence, you can take the list of ingredients from a copyright-protected recipe and explain the process of preparing those ingredients in your own words. However, note you might still encounter a compilation copyright infringement claim if your book includes all or a significant number of recipes from a single source – even if you do express those recipes in your own words.

(Note: This response does not necessarily apply to recipes that might be protected by trade secret, contract, or patent law.)

Commenter: If you attribute the original author you’re okay. Others believe you can still be sued in certain situations, i.e.., a recipe from a subscription-based website)

If there is a legal prohibition against your duplicating the recipe (e.g., copyright protection, contract), attributing the original author will not make duplication legal. Yes, there may be certain situations in which you can be sued for including in your book recipes that are verbatim copies of or substantially similar to recipes you find elsewhere. In the example you provide, a subscription-based website might include in its Terms of Service a provision that contractually obligates you not to publish the recipes elsewhere.

Commenter: If you change a few ingredients, quantities, you’re okay

The ingredients and quantities are some of the “facts” offered within the recipe. Copyright does not protect raw facts. There is no copyright prohibition on taking the same exact ingredients and quantities indicated in a single recipe and explaining how to prepare the dish in your own words.

Commenter: Do the rules for recipes vary by state?

It depends on what method you’re using to protect your recipe. Copyright law and patent law are federal laws so they are the same nationwide - though there may be local variations on how a specific court interprets those federal laws. Contract law and most of trade secret law are based on state law so they do vary from state to state.

Commenter: If the rules for recipes do vary by state, under what rules would you fall if you’re in Florida using a recipe originating in Montana?

The questions of which state’s law applies and in which state you can be sued are complicated. The short version of the answer is - It depends. If you gain access to the recipe via a contract (such as the Terms of Service of a subscription-based website), the contract will probably indicate which state’s law applies to any disputes. In the absence of a contract, if you reside and/or operate a business in Florida, you can definitely be sued in Florida. If you are a Florida resident or business owner who engages in sufficient activities in Montana, it may also be possible to sue you in a Montana court