Secret Recipes

January 29, 2009

Though I can't remember where, years ago I read about many American families guarding a secret family chocolate chip cookie recipe...often handed down from grandma on a yellowed note card. But it turned out that they all had the exact same recipe and that it matched the one on the back of the bag for Original NESTLÉ® TOLL HOUSE® Chocolate Chip Cookies! If any of our readers remembers this and can share the source, we would appreciate it.

Even though “secret recipes” are as old as time, at Foodista, we believe there is great value in openness and sharing. Since we encourage our users to contribute recipes, below are some simple information resources to help you understand some of the legal doctrines regarding recipes and intellectual property.

Copyright
Can a recipe be copyrighted? In short, no. Recognizing this is a common question, the U.S. Government created a special page on the Copyight Office Website .

Here’s an excerpt:

“Mere listings of ingredients as in recipes, formulas, compounds, or prescriptions are not subject to copyright protection. However, when a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a combination of recipes, as in a cookbook, there may be a basis for copyright protection.

Protection under the copyright law (title 17 of the United States Code , section 102 ) extends only to ‘original works of authorship’ that are fixed in a tangible form (a copy). ‘Original’ means merely that the author produced the work by his own intellectual effort, as distinguished from copying an existing work. Copyright protection may extend to a description, explanation, or illustration, assuming that the requirements of the copyright law are met.” (Visited January 29, 2009)

So the basic components of a recipe, ingredients and the preparation method, cannot be copyrighted. Furthermore, the “substantial literary expression” and “original works of authorship” standard is hard to meet for many recipes since they tend to describe commonly understood cooking techniques. Read more about Copyright at Wikipedia.

Patents
On the surface, it seems most appropriate form of intellectual property protection for recipes would be a patent, but proving you invented a recipe would be difficult given how long people have been putting foods together and cooking them! Read more about Patents at Wikipedia.

Trade Secrets
Another way to protect intellectual property is through Trade Secrets. Rather than publishing an invention or creation, individuals keep them a secret and get anyone they share with to agree to keep it a secret by contract. Some of the most famous examples of trade secrets are the recipes for Coca-Cola and Kentucky Fried Chicken’s “Eleven Herbs and Spices.” So it would be illegal for some who has been given access by those companies, under a non-disclosure agreement to share them, but if you figured out the ingredients and process independently in a lab, you would be free to share. Read more about Trade Secrets at Wikipedia.

Other interesting areas of law related to the use, modification, and publication of recipes are (links go to related Wikipedia pages):

Fair Use

Copyleft

Public Domain

Digital Millennium Copyright

At Foodista, we have adopted a Creative Commons License that gives everyone free and broad rights to reuse content from Foodista. We also encourage everyone to give credit where credit is due. Above all, we do not condone the violation of anyone’s rights.

NOTE: I am not a lawyer, the above analysis is my own understanding of these issues after a lot of reading, but should not be considered professional legal advice.