Guide Through the Legal Jungle

Free Artomatic Presentation, “Content Clearance for All Content Producers” on Thursday, June 7 at 7 p.m. in Arlington, VA.

Next Thursday, June 7, 2012 at 7:00 p.m., I will offer a presentation on content and rights clearance issues. The presentation is sponsored by the Washington Area Lawyers for the Arts (WALA) and is part of the month-long Artomatic arts festival currently taking place in Crystal City, Arlington, Virginia. The presentation is free and open to the public.

Presentation Description:

Have you ever wondered how and if you can incorporate other people’s materials into your own work? The material you want to use might be an image, quotation, song, real-life event, celebrity name, or other material protected by copyright or similar laws. These are rights clearance questions. In this interactive presentation, attorney and author Joy R. Butler will explain how to identify rights clearance problems and provide guidance on what you need to do before you incorporate other people's material into your artwork, websites, advertisements, books, films, and other creative work.

The Details:

• DATE: Thursday, June 7, 2012


• TIME: 7:00 p.m. – 9:00 p.m. ET


• COST: Free


• LOCATION: 1851 S. Bell St., Arlington, Virginia (1 block from the Crystal City metro stop). For directions (driving, parking, metro, and bike), see http://artomatic.org/plan-your-visit

 

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

Are Recipes Protected? Part One.

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.

Should Doctors “Friend” Their Patients on Facebook and Other Social Media?

The Federation of State Medical Boards just released guidelines for how doctors should (and shouldn’t) use social media. You can read the Model Policy Guidelines for the Appropriate Use of Social Media and Social Networking in Medical Practice here.

Some Guidelines Reflect Common Sense

Many of the guidelines are reasonable. For example, of course doctors should not divulge patient confidences online, post insulting comments about identifiable patients, or provide specific medical advice (as opposed to general medical information) to people who are not their patients.

Other Guidelines Are More Difficult to Grasp

However, other guidelines seem far too conservative. The guidelines recommend that doctors avoid “friending” or interacting online on a personal level with current or past patients. While that prohibition might be appropriate for some doctor-patient situations (e.g., psychiatrist-patient), making social friending a universal no-no seems overly cautious as well as slightly arrogant.

Many of my doctors send me newsletters – either via email or regular snail mail. Those newsletters contain a combination of the doctors’ medical tips, professional achievements, and personal news such as photos of the doctor at an event or on vacation. As long as the social media interaction does not extend into harassment or other offensive contact, what is the problem with those doctors sharing the same information via social media networks?

Tell me what you think about this topic in the comments below.

Do I Need Permission to Use that Picture?

In addition to being worth a thousand words, a picture can spawn numerous permissions issues. The use of a photo may trigger privacy, publicity, defamation, trademark and other issues – depending upon who appears in the image and how you intend to use it.

Multiple Permissions May Be Required

You may need to obtain permission from more than one person or organization before you can use a particular picture. For example, in addition to getting permission from the photographer who took a photo, you may also need permission from any people depicted in the photo; from the owner of any trademark appearing in the photo; and from the copyright owner of any painting, sculpture, or other artwork depicted in the photo.

Stock Images as an Easier Alternative

An easier option for photo permissions may be licensing stock images. Licensing stock images is becoming easier as more stock houses computerize the process, offer online catalogs, and issue licenses online. A downside to using stock images is that they may have been in many other projects and may have been seen many times before. Stock materials can generate other unexpected consequences. Consider the rather negative experience of Hillary Clinton during the 2008 presidential primary campaign when she used stock footage – a close cousin to stock images – in one of her political ads. Also, using stock images does not always negate the need to obtain additional permissions for people or objects depicted in the image.

The Permission Seeker’s Guide Through the Legal Jungle includes an extensive discussion on using materials from stock houses and getting permissions for images.