There’s no doubt in my mind that many chefs are creative people. But are their culinary creations entitled to copyright protection? A recent legal dispute between two former restaurant owners addressed this issue.
The case is Tomaydo-Tomahhdo, LLC v. George Vozary. Rosemarie Carroll and Larry Moore owned several restaurants, including one named Tomaydo-Tomadhho (oh geez, let’s call it T-T from here on out.) Moore was responsible for developing the recipes.
In 2007, Carroll bought Moore out. In 2011, Moore, along with a former T-T employee, George Vozary, opened a catering business. Carroll, as the owner of T-T, sued on several grounds, including a claim that Moore and Vozary’s recipes infringed on copyrights owned by T-T.
In the ruling I linked to above, the judge considered whether or not the copyright claim should go forward.
Let’s start with this: facts are not protected by copyright. Nor are ideas. Also, you can’t use copyright to keep your chocolate out of my peanut butter.
17 U.S.C. 102 states, in part:
(a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression…
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
So is a recipe (a) an original work of authorship, or (b) an idea, procedure, process, system, and method of operation? If you guessed B, you’re right.
Copyright law does not protect recipes that are mere listings of ingredients. Nor does it protect other mere listings of ingredients such as those found in formulas, compounds, or prescriptions. Copyright protection may, however, extend to substantial literary expression—a description, explanation, or illustration, for example—that accompanies a recipe or formula or to a combination of recipes, as in a cookbook.
The judge in T-T cited a previous case:
The identification of ingredients necessary for the preparation of food is a statement of facts. There is no expressive element deserving copyright protection in each listing. Thus, recipes are functional directions for achieving a result and are excluded from copyright protection under 17 U.S.C. 102(b).
Copyright can, however, be used to protect a compilation of facts; however, as the T-T opinion states:
[T]he copyright protection afforded to compilations extends to the “order and manner of the presentation of the compilation’s elements, but does not necessarily embrace those elements.”
So copyright can protect the unique creative expression associated with a recipe. If I write a recipe in such a way that actual creativity is involved – let’s say I wrote it as a poem – that may be protected, but the actual ingredients, measurements, and cooking processes would not be. Likewise, the particular layout and composition of a compilation of recipes (also known as a cookbook) may also be protected, but the underlying recipes would not.
Accordingly, the judge ruled in favor of Moore and Vozary and declined to allow the copyright infringement claim to go forward. There was no evidence that the defendants had violated the artistic expression embodied in the recipes or had copied an actual cookbook. They simply used the recipes themselves to prepare the resulting dishes. And that’s OK. Let’s call the whole thing off.