Monday, January 16, 2006

More on Recipe Copyrights

reposted from the Washington Post without permission because I don't trust an article link to stay permanent...

Summary: Article doesn't really say anything definitive about recipes and copyrights, except to always attribute and be polite (what we've been saying here since the beginning!)

Previous Blog S'cool post: Published Recipes

Can a Recipe Be Stolen?

By Joyce Gemperlein
Special to The Washington Post
Wednesday, January 4, 2006; Page F01

Like most teenagers, Dana Simms and 11 other members of the Tilden Woods Swim Team know more about iPods and Google than about pea pods and kugel. So when they began soliciting recipes for a cookbook to benefit cancer research last summer, they were startled that technology and cooking converged.

"We all know about plagiarism, copyright and intellectual property rights issues, but we hadn't given them a thought when it came to the cookbook," said Simms, a junior at Walter Johnson High School in Bethesda. When a potential contributor fretted about handing over a recipe for Toll House cookies that appears online, in many cookbooks -- and on bags of semisweet chocolate chips -- "we did begin to worry a little," she said.

The girls knew the legal concepts from high school, and copyright and intellectual property issues were being drummed into them because of lawsuits on downloading music into MP3 players and iPods. But here were similar issues in the kitchen.

Some friends and relatives were hesitant to contribute favorite recipes that had been culled from cookbooks or online databases. Could they be accused of plagiarism or a violation of intellectual property rights? What if the recipes were tweaked? Is using a smidge more mayonnaise in a chicken salad and substituting mango chunks for peaches enough to call the recipe your own? It's one thing to hand down a family recipe from one generation to the next, but what about offering a not-entirely-original recipe for publication in a cookbook, even for a charitable cause?

"What this reflects is a rising awareness over the last 20 years of copyright issues . . . and the chilling effect of copyright enforcement . . . people being intimidated out of using basic common sense about things that would or should never generate a lawsuit," said Siva Vaidhyanathan, author of "Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity."

It's highly unlikely, he said, that anyone would be sued for putting someone else's published recipe -- with or without attribution -- in a charity cookbook or posting it on the Internet where it can be disseminated to millions of cooks almost instantly. In fact, said Vaidhyanathan, an assistant professor of culture and communications at New York University, it would be unusual even to receive a nasty letter about it. "There isn't [big] money at stake."

U.S. copyright law addresses recipes, but what holds sway can be called either ethics or etiquette. Cooking is not considered inventing; rather, it evolves. Copyright law specifies that "substantial literary expression in the form of an explanation or directions," such as a cookbook, can be copyrighted but that a mere list of ingredients cannot receive that protection.

The ethics guidelines of the International Association of Culinary Professionals focus on giving proper attribution to recipes that are published or taught. The association advises using the words "adapted from," "based on" or "inspired by," depending on how much a recipe has been revised. ("Adapted from" is the phrasing favored by The Washington Post and many other newspaper food sections, which, along with culinary instructors, enjoy "fair use" of someone's creation for the purpose of teaching, news reporting, scholarship or research.) The only time a recipe should be printed without attribution, the association contends, is when it has been changed so substantially that it no longer resembles its source.

In cyberspace, however, there's some confusion about where to draw the line. Many Web sites carry warnings about posting "copyrighted" material, but most do not define what that means in cooking circles.

Rachel Rappaport, a Baltimore teacher, operates a blog called Coconut & Lime in which she shares recipes she has liked. She says her understanding -- a common one -- is that if she changes two or three ingredients in a recipe, it becomes her own and requires no attribution.

At the eGullet Society of Culinary Arts & Letters, an online site for epicures, copyright laws and courtesies are a constant topic of discussion, said founder Steven A. Shaw, a lawyer-turned-food writer. Shaw contends that posting a lengthy discussion of legal and ethical conduct, enforcing detailed membership requirements and constant monitoring of content -- including recipes -- keep his site from joining what he calls "the Wild West" of online copyright violations.

For amateur cooks who participate in the Pillsbury Bake-Off, the recipes they are passing off as their own had better be their own. Bake-Off officials perform "originality" searches on the 100 finalists, said Marlene Johnson, senior public relations manager. Contestants whose recipes do not have at least "several significant differences" from any found in a thorough search, she says, are disqualified.

Professional cooks who publish recipes that blatantly copy colleagues' work without attribution are often shunned or gossiped about, but even then, lawsuits are rare.

Washington chef and cookbook author Nora Pouillon said she would not sue if she saw her formula for, say, cherry clafoutis, on a Web site. She'd be the first to say that she based her recipe on versions of the French specialty featuring kirsch-soaked fruit that she had seen or eaten during her childhood in Austria.

Wonderful food, she points out, is more than a recipe. It also is the sum of a cook's experience, eye for detail and technique, plus the quality of the ingredients.

Pouillon said she's flattered if somebody passes along one of her recipes. "It's nice to get credit, but I really feel that a recipe is something to share," she said. On the other hand, if someone is a terrible cook, she said, she would rather that person not tell people that the formula for yam vichyssoise came from her.

All proceeds of "Cooking for the Cure" are donated to cancer research. For a copy, send a check for $15 plus $3 shipping to "Cooking for the Cure," 6900 Stonewood Court, Rockville, Md. 20852, or e-maildanabari89@yahoo.comfor more information.

Joyce Gemperlein, a former food editor, lives in North Bethesda.

posted by McAuliflower of Brownie Points Blog, who seems to be living at her computer this holiday...


Chubby Hubby said...

Interesting article. On a tangential note, I've been approached by a publisher whom I understand is approaching several food bloggers internationally. They're going to publish a cookbook, compiling recipes from food bloggers. Proceeds of the book, they tell me, will go to UNICEF.

Because I'm a bit of a stickler for certain details, I emailed them several questions before deciding whether to take part. One of my questions related to copyright and whether we (blogger-contributors) would retain copyright of submitted recipes and images. They informed me that they would not be using our images but have merely asked for them to use as reference for their own photographer who will be reshooting the dishes. (What's up with that? I think many of us shoot well enough to be published.) Further, and more importantly and more relevant for this discussion, they've informed me that they intend to own the copyright of OUR recipes. In other words, they're not paying bloggers to take part in this, but they expect us to sign over copyright of our recipes for free. Which, hypothetically, means they could take those recipes and re-use them anytime they wanted in any project in the future.

Elise said...

Hi Chubby,
I got that invite too. They are probably not asking for the copyright because for the basic recipe, none is needed and none exists. Recipes, including ingredients and basic instructions, are considered methods and are not copyright-able. (Patent-able yes, copyright-able no.) Extensive literary expression that accompanies the recipes, which you "sometimes" do find with directions or which includes the introduction to recipes, are copyrightable. But perhaps they aren't planning to use the introductions and are planning to apply their own editorial guidelines to streamline the instructions submitted.

BTW, there is a good thread going on at Maki's blog about this:

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