14
Jan/06

Can Recipes Be Copyrighted?


Via Kottke, a Washington Post article on protection of recipes
One should distinguish between a recipe, a textual rendering ofa recipe, and a compilation of recipes. Publications Intl. v. Meredith, 88 F.3d 473 (7th Cir. 1996) dealt with alleged infringement of a recipe book:
“The identification of ingredients necessary for the preparation of each dish is a statement of facts. There is no expressive element in each listing; in other words, the author who wrote down the ingredients for “Curried Turkey and Peanut Salad” was not giving literary expression to his individual creative labors. Instead, he was writing down an idea, namely, the ingredients necessary to the preparation of a particular dish. “[N]o author may copyright facts or ideas. The copyright is limited to those aspects of the work–termed ‘expression’–that display the stamp of the author’s originality.” Harper & Row, 471 U.S. at 547, 105 S.Ct. at 2223. We do not view the functional listing of ingredients as original within the meaning of the Copyright Act.
Nor does Meredith’s compilation copyright in DISCOVER DANNON extend to facts contained within that compilation. As the Supreme Court stated in Feist: Facts, whether alone or as part of a compilation, are not original and therefore may not be copyrighted. A factual compilation is eligible for copyright if it features an original selection or arrangement of facts, but the copyright is limited to the particular selection or arrangement. In no event may copyrights extend to the facts themselves. Feist, 499 U.S. at 350-51, 111 S.Ct. at 1290. The lists of ingredients lack the requisite element of originality and are without the scope of copyright. The Copyright Office itself has stated that “mere listing[s] of ingredients or contents” are not copyrightable. 37 C.F.R. s 202.1. The next question is whether the directions for combining these ingredients may warrant copyright protection.
The DISCOVER DANNON recipes’ directions for preparing the assorted dishes fall squarely within the class of subject matter specifically excluded from copyright protection by 17 U.S.C. s 102(b). Webster’s defines a recipe as: a set of instructions for making something … a formula for cooking or preparing something to be eaten or drunk: a list of ingredients and a statement of the procedure to be followed in making an item of food or drink … a method of procedure for doing or attaining something. WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (Merriam-Webster 1986). The recipes at issue here describe a procedure by which the reader may produce many dishes featuring Dannon yogurt. As such, they are excluded from copyright protection as either a “procedure, process, [or] system.” 17 U.S.C. s 102(b).
Meredith fashioned processes for producing appetizers, salads, entrees, and desserts. Although the inventions of “Swiss ‘n’ Cheddar Cheeseballs” and “Mediterranean Meatball Salad” were at some time original, there can be no monopoly in the copyright sense in the ideas for producing certain foodstuffs.
Nor can there be copyright in the method one might use in preparing and combining the necessary ingredients. Protection for ideas or processes is the purview of patent. The order and manner in which Meredith presents the recipes are part and parcel of the copyright in the compilation, but that is as far as it goes. As Professor Nimmer states: This conclusion [i.e., that recipes are copyrightable] seems doubtful because the content of recipes are clearly dictated by functional considerations, and therefore may be said to lack the required element of originality, even though the combination of ingredients contained in the recipes may be original in a noncopyright sense. 1 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT s 2.18[I], at 2- 204.25-.26 (May 1996).”

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