Imagine a few weeks before Christmastime in the Duffie house – twinkling lights on the tree, the females start meticulously planning and coordinating the meals to celebrate this season and somewhere daddy T.D. is making more than one trip a week to Sam’s Club. There is not just one meal during the holiday season. Oh no, that would be entirely too simple. There is the Christmas Eve lunch, the Christmas Eve dinner, the party food after the dinner, brunch on Christmas day and finally the Christmas day meal. All of these occasions are complete with specialized desserts, snacks, salads and drinks to correspond. As my Granmaw would say “there is a world of food” during this time of year. And, she would be right.
The ladies usually bring out some old favorite recipes, but always throw in a few new ones to keep it interesting. Throughout the meals you can hear “what’s in this?” and “be sure to mail me that recipe.” You will also hear a bunch of whispering about how the recipe is a “secret,” and they cannot share exactly how it is made.
This might come as a shocker to my two sweet grandmothers, mom and sister, but contrary to what they believe about their “secret” recipes there is nothing overly protectable about the recipes from a copyright standpoint. Generally speaking recipes are not subject to copyright protection due to the fact that copyright only protects the way in which an author creatively expresses an idea. Ideas by themselves are never subject to copyright protection. And, while in the Duffie family Cooking Club one might agree a chocolate/peanut butter pie is tasty, it is not subject to intellectual property protection. And, to copy the recipe would not be copyright infringement. Copyright only protects the expression, but never the idea by itself.
Whether a work can receive copyright protection is narrowed as a work becomes less original. Because of their factual nature, recipes by themselves will never receive protection. Facts are not original. A cup of sugar, 2 cups of flour and a pinch of salt mixed with semi-sweet chocolate and baked at 350 degrees for 45 minutes is a list of facts. There are only so many ways you can explain a recipe, how to combine the ingredients and how to cook the dessert.
However, when you combine those recipes with a narrative of how it came about, coupled with photos, design elements, page layout and form a cookbook, you then have sufficiently provided creative expression to facts. Then, the cookbook as a whole, because of the creative expression mixed with those facts, becomes able to receive copyright protection. Copying of the creative expression will lead to infringement. Simply rewriting the ingredients and steps of the recipe will not.
Of course, in Duffie Cooking Club Law (subject to the whim of whomever is spouting the “rule” at the time) none of the above really matters. In the Duffie house the real fun begins in the weeks following the holiday gathering. If a recipe does get shared it’s because you swore on some dead relative’s grave. The recipe for Coca-Cola is not nearly as guarded as some of those recipes shared around the Duffie holiday table. (It should be noted that the recipe for Coca-Cola is considered a trade secret, which will be discussed in a later post and falls outside of this post).
The stealth like tendency to secure any of these recipes is very much like Marie in the hit television show Everybody Loves Raymond. Marie teaches mom Debra how to make her “famous” meatball recipe. But, Marie intentionally leaves out and does not tell Debra of one key ingredient so that Debra’s dish never tastes as good as Marie’s version. The main scene where Debra realizes the omission occurs at about 15 minutes into the episode posted below.
The idea of protection for recipes has recently received more attention by way of the invention of the Cronut by Dominique Ansel from New York. The cronut is a mix between a donut and croissant. I have not had the joy of trying this new dish; however, anything that is described as a fried croissant can’t taste all that bad. Ansel is currently seeking trademark protection for the name Cronut; however, he has no real claim for a copyright in the actual cronut or the recipe for the cronut for the reasons explained above. You can read an article about the Cronut Trademark by visiting THIS CNN Money article.
So, while your relative might make a mean greenbean casserole you can rest assured that there is nothing overly proprietary about what they use, how they use the ingredients or how they combine them to produce the dish. May you go forth to your holiday gatherings with the knowledge that Aunt Myrtle can no longer deny you the right to her truffle ball recipe. But, you’re on your own with actually convincing her to hand the recipe over. 🙂 I’ll have my own Cooking Club members to contend with. Happy holiday meal planning and Stay Tuned In!
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- What is a cronut? (adventuresofadietitian.com)