Monday, September 11, 2006

Recipes and copyrights (adaptations)

Food Blog Scool covered this issue pretty well over the last months, so I won't go into detail here (links to former discussions and links to useful articles can be found in the right sidebar) and the broad consensus on this topic is, that recipes and basic directions are methods and are not subject to copyright protection - as long as you re-write the recipe's steps in your own words and credit the original source. Most foodbloggers have one thing in common, they can for the life of it never follow a recipe just as-is. That's creativity, that's how you develop new recipes and I never ever would have spent a second thought on these widely known as "inspired by" or "adapted from" recipes, well, until yesterday. I was searching foodnetwork for a Jamie Oliver recipe I couldn't find in his books, when I noticed this strange text passage:

---
The copyright of this recipe is owned by Jamie Oliver. All rights of the owner are reserved and asserted including the right to be attributed as the author. Unauthorised copying, adapting, display or re-publication of this recipe (or any part of this recipe) in any material form is strictly prohibited. Link to recipe
---

While I'm not really surprised, that foodnetwork.com puts disclaimers everywhere on their website, I'm a little puzzled about them using the word "adapting". Is this a good showcase of some lawyer taking it too far, or do they really believe they could sue somebody for adapting a recipe? Where does adapting start and end, when is adaptation substantial enough that you created a whole new recipe? Where is Jamie O. getting his inspiration from and is not adapting other recipes... ?

Any thoughts?

This Post was written by Nicky from delicious:days.

22 comments:

Erin S. said...

huh! I've never seen anything like this before. On the opposite side of things, I've noticed that Oliver's fellow Brit Nigella Lawson's cookbooks often reference other cooks/recipes. A recent recipe I used said that it came directly from Marion Cunningham and the SF Chronicle Cookbook--not even adapted or anything. Perhaps she checked with Cunningham first?

Anyway, it seems to be the opposite approach to what you found.

Julie said...

Wow, I've never noticed anything like that before. I suppose they could sue (any lawyers out there?). If I adapted this recipe and wrote "adapted from" could I be sued because I violated the specific terms of the copyright? On the other hand, if I published the same adaptation on my blog, but did not refer to it as an adaptation or credit the source because I believed I had altered the original recipe to a significant degree, I would think that I would have a leg to stand on in court. I could claim that any similarity is coincidental. Very weird... In reality, I would just stay away from a recipe like this and hope that this type of copyright protection does not catch on. It seems a bit extreme in most cases.

Amy Sherman said...

Copyright does give exclusive rights to create derivative works (works that adapt the original work).

Unfortunately, the word "adapt" is vague. Copyright does not extend to "ideas" so if you got the "idea" from Jamie Oliver and adapted that...

paul said...

Perhaps this is a British legal thing that doesn't apply to Americans? The word adapt could be argued about, but the 'any part of this recipe' wouldn't stand up. Does that mean I can never mention using 'Sea salt and freshly ground black pepper' again without paying royalties?

I'll worry about it if the International Convention on Cybercrime ever goes into action.

And the other issue- if a million food bloggers, sat down at a million keyboards, for a million years, they'll eventually come up with a recipe for sweet potatoes and cream cheese without ever knowing who Jamie is.

In the meantime I've got a patent pending for the combination of sweet potato and cream cheese.

stephen said...

...thanks for pointing this out...next time I adapt a recipe from Mr. Oliver I'll be sure not to credit him...since if I did I'd be giving his lawyers the only piece of evidence they could ever find that would prove that I adapted his recipe...it goes against my fair-play tendency, but if that's the way they want it, no problem...

Piperita said...

This is absolute non sense: Jamie Oliver did publish a lot of traditional Italian recipe, and he can't have the right to say that I can't write an adaptation of one of his recipes, because are themselves adaptation form somewhere else! Can my mommy sue him for making a pasta salad exactly in the way she does it since I was a child, and so since Jamie wasn0t even born???
I agree with Paul: sometimes Jamie's recipes are so simple and basic that anyone can come up with something similar without even knowing who Jamie is...

Amy Sherman said...

This is really about US copyright law. The law states:

"Copyright protection may extend to a description, explanation, or illustration"

It does not extend to a list of ingredients. Nor does it extend to ideas.

http://www.copyright.gov/fls/fl122.html

Barbara said...

I am with Amy--US copyright does not extend to a list of ingredients, nor does it extend to cover ideas.

And since the Food Network is a US company, the copyright laws here cover their issue.

So, if I were to cook sweet potatoes with cream cheese and some legal dweeb from the Food Network were to send a cease and desist letter to me because I wrote about it on my blog and didn't credit Oliver or whatever, I would simply send a letter back quoting the US copyright laws with a politely worded, "bite me" included.

My theory about the notice--it is for people who don't know the law, and who might be intimidated by legalese on websites.

cybele said...

Kate at Accidental Hedonist did a great post where she went through what is and isn't covered by copyright when it comes to recipes:

http://www.accidentalhedonist.com/index.php/2006/08/07/copyrights_and_recipes

People post crazy and intimindating things on their websites all the time in an effort to protect "their" intellectual property.

BoingBoing.net has covered some even crazier stuff about corporate "linking policies" where companies say that you have to GET PERMISSION to post a link to their site or page within their site. Just cuz they developed their policy, doesn't mean it's legal or will hold up.

In the end, I'd say do the right thing - give credit where credit is due and only copy the ingredients list.

Kalyn said...

I see I'm missing a lot of interesting discussions now that I'm busy teaching school all day. I can understand how a famous cook like Jamie Olive might feel; I was very irked recently to discover my roasted tomato post (copied word for word) posted on RecipeZaar as someone's personal recipe for roasted tomatoes. But I do think some of you are on to what's happening here, and Amy, thanks for finding us the exact language. It's simply an attempt to intimidate people into not using the recipes so the only way you can get them is by buying the books.

Pascal said...

The copyright text is pretty clear that it does not apply to the ingredient list, not even the method of mixing the ingredients.

However, it does apply to the text itself. What's usualy before and after the ingredients. That's what you can not "adapt", but most people seem to agree that if you use your own words to describe the steps you take, you would not be violating copyrights.

Copying verbatim is not something you can do without permission.

And just changing a few words would be too close to call (that would be adapting) and I would stay away from that (although for a very simple recipe, this might be hard, but then again, if it is that simple, chances are there are thousands or variations already...).

Nicky said...

Thank you all for your prompt feedback!

You provided interesting thoughts on this topic, yet - on second thought - this whole issue doesn't make much sense to me. I won't blame Jamie Oliver for it, there is such a huge PR department behind him, I'm not sure he even knows or cares about issues like that.

What is it they are trying to accomplish with this disclaimer? If somebody reprints (verbatim) some of J.O.'s recipes in a book or online collection, they have enough reasons to sue them - without the extra wording. On the other hand: (adapted) cookbook recipes I stumbled upon on the net have led me more than once to actually purchase the book it was taken out of - my personal NCPM (new cookbook per month) ratio went through the roof since I started foodblogging.

I personally doubt, that cookbook authors themselves do credit every source, e.g. there is a famous cake (Nathalie's chocolate cake) I first came across in a book from Trish Deseine and then later on in various other cookbooks. One of them must have published the recipe first, chances are neither of them did ;)

Cooking is about sharing experiences and I don't like the notion, that a recipe belongs to somebody. Proper credit should be given where it is due, but this disclaimer has only one effect on me: I leave the page and don't return.

kitchenmage said...

what a dweeb! the best part is that is doesn't even sound good... wonder if he objects to the kids he's so proud of working with 'adapting' his recipes...

Sam said...

I have had one of Jamie's recipes - a truly adapted one for Bakwell Tart where I think he uses too much butter and I say so, sitting on my website for a while with links going out to one of his websites and I haven't ever had a complaint from Team Oliver.

I don't think it is him saying this stuff, just Food Network, no? And they are probably just trying to intimidate people who might just steal the recipes pretty much word for word.

Since his Bakewell recipe is freely available at Leite's Culinare website, copied word for word, I can only assume he has given his permission for it to be on the net.

Afterall, it is pretty safe to say Jamie didn't invent Bakewell Tarts.

Sam said...

yeah - i think this is a food network thing not a Jamie thing - surely???

c'mon people he doesn't write the legal stuff for food network's website.

Maybe we should have an event and all make that recipe on the same day? Bit of simple cheesemaking anyone?

Kevin said...

In general I agree with everyone here, but I have one thing to add -- megacorps and their lawyers can sue whether they've got a leg to stand on or not. Being "right" is a defense against losing, not against being sued.

Rachael said...

Eek. I adapted a Jamie Oliver recipe last summer and attributed it to him. So far, no one has bothered me.

According to my publishing business sources, the likelyhood of a cookbook author trying to sue a blog is pretty slim. Plus, it would just be bad PR. Im sure if Mr. Oliver, The Food Network or his production company really had a problem, they would write a nice note first.

As a matter of interest, this is from his actual site, regarding his ownership of materials submitted to him:

"Finally, many of you like sending or posting up recipes, stories, blog comments, other ideas and messages for my podcast. I love receiving these things and sometimes want to share them with the rest of you on the site or in the podcast, but in order to do so, please be aware that when such material is submitted you will be deemed to assign all rights in such material to me (including the right to edit and/ or reproduce such material on the website and/ or in the podcast, newsletter or otherwise), and you will be deemed to waiver any so-called moral rights you may have in the material."

kitchenmage said...

"Finally, many of you like sending or posting up recipes, stories, blog comments, other ideas and messages for my podcast. I love receiving these things and sometimes want to share them with the rest of you on the site or in the podcast, but in order to do so, please be aware that when such material is submitted you will be deemed to assign all rights in such material to me (including the right to edit and/ or reproduce such material on the website and/ or in the podcast, newsletter or otherwise), and you will be deemed to waiver any so-called moral rights you may have in the material."

He can steal your unpublished ideas and use them as his but you can't operate within standard copyright law and use his published content with appropriate credit? This is a load of crap and makes me think that he did vet the FN blather.

I am really rather tired of celebrity "chefs" who become more focused on the celebrity than the chef. Get the frack over yourself!

OTOH, it's another person whose books I can skip buying...because if I want an attitude with my food I can supply my own!

Amy Sherman said...

How is that stealing? All he is saying is if you send me stuff I may edit it and use it. Why do you think people send stuff in to begin with? Because they want him to incorporate it into his podcast.

Sam said...

I have met jamie oliver - he is not a bad selfish guy. the amount of work he has done for other people goes beyond the call of duty and is far more than any other 'celebrity chef' I have ever encountered. Sure - he's not perfect, but he is basically a good guy trying to do some good in the world and use his fame for improving other peoples' lives and health and food experience.

i really dont think he is in charge of these details. he has a whole team. its the same disclaimer every one puts on his websites. it is just self protection and probably guided by his legal advisors.

the guy wants to share his public's contributions, they want to share with him. he just has to have a legal way to be allowed to do that without getting comeback.

thats how i see it.

As I say I met him, and you can't fake genuine niceness. I think he is guinely nice. He was to me.

kitchenmage said...

Amy, maybe "stealing" is too strong of a word, but it's at best taking advantage of the uninformed.

This: "...you will be deemed to assign all rights in such material to me (including the right to edit and/ or reproduce such material on the website and/ or in the podcast, newsletter or otherwise), and you will be deemed to waiver any so-called moral rights you may have in the material."
goes rather beyond what I would consider a standard copyright grant, which only allows limited use (generally with credit). What that language says is that a TOTAL relinquishment of copyright is part of the deal if you write to the guy.

Maybe I'm just touchy about such things, or maybe it's fresh in my memory because I just finished working out the details of a book contract, but this is not standard. Most represented writers (those who have the counsel of agents/lawyers) would not sign such a thing unless there was something substantial in it for them. I would do it for cash (lordie sam, that line will help your google hits) but not for free...and almost never without recognition--that costs extra!

Bottom line: the two copyright related notices are very different; in both cases, his terms rock while yours suck. So we'll call it taking advantage rather than stealing, but, nice guy or not, it's still unfair, unbalanced, and kind of tacky.

Owen said...

Getting in late to this discussion but....

I work at an online media company. I know how this legal farfaddle gets done. Some junior legal person is asked to put together a legal notice. They go and copy about three other existing ones, take the bits they like and then rewrite it all to fit their site. In this case the Food Network.

Note - this has NOTHING to do with Jamie Oliver. NOTHING.

Then they get it reviewed by more senior people who all make changes and eventually it goes up. At no point does somebody who is a true expert in something specialised like recipe copyright law look at it. Ever.

So the answer is that even the lawyers here don't know what they are talking about.

After all - taking a strict interpretation of the words they used, I may use the recipe to make a dish for myself (possibly - that might be prohibited too) but I cannot change anything in that recipe. We aren't talking about republishing here - we are talking about adapting the recipe. I have no almonds - I'll use the hazlenuts that I do have - oh, wait, the Food Network won't allow it. Obviously that's total nonsense but a strict interpretation of that statement means that you can't do that.

Clearly even the Food Network doesn't want that.

My solution to all websites that do this kind of thing is to stop reading them. THe same information is available elsewhere.

And you know, the original Jamie Oliver cookbook doesn't say that. So how do they know where I got the recipe?

I also would advise people that you won't go wrong if you simply do things that are the right thing to do morally. If you copy something or enough of it that it is susbstantially someone else's work then give them the credit they should get. If you have been making a dish for ten years and over those ten years have modified and adjusted most of the recipe then the new recipe is YOURS - YOU are the one that put in the ten years of work to get it right.