protecting recipe copyrightsProtecting recipes with the traditional tools of intellectual property is difficult. That’s why so many valuable recipes are maintained by their owners as trade secrets. Thomas English Muffins, Coca-Cola, KFC Fried Chicken, Chartreuse, and Mrs. Fields Chocolate Chip Cookies are a few well-known examples. But that does not deter some people from pushing the envelope of intellectual property protection.

Take for example, Ms. Carroll Moore who recently sued her former business partner for stealing (i.e., infringing) recipes from her published recipe book, which she had registered with the U.S. Copyright Office. Against arguments that her recipes could not be copyrighted, she maintained that her “recipe book” possessed sufficient creativity to merit copyright protection.  The trial court disagreed and granted the defendants summary judgment without even reaching that question. Instead, it found that her recipe book and the purported infringing recipes were not sufficiently similar to be infringing.

Apparently, this left a bad taste in Ms. Moore’s mouth so she appealed the trial court’s decision to the U.S. Circuit Court of Appeals for the Sixth Circuit where she fared no better.  But this time the court — relying on well-understood legal precedents — reached the question of whether her recipes were protectable under U. S. copyright law.  The principle question considered by the court was whether a recipe book meets the constitutional requirements that copyrightable works be “original” and possess “at least a minimal degree of creativity.”    Remember, under the law, a list of ingredients is merely a factual statement and that the instructions contained in a recipe are merely functional directions, which do not deserve copyright protection.

Although the court recognized that a compilation of recipes could conceivably possess enough originality to deserve copyright protection, it couldn’t find any in Ms. Moore’s recipe book.  The court wrote that merely characterizing “how recipes are developed and further perfected,” as did Moore, “does not identify a creative element of the recipes.”  According to the court, the “unoriginal” elements of a compilation do not deserve copyright protection. So, to prove that her compilation of recipes is copyrightable, Ms. Moore would have to demonstrate that her recipe book contained creative elements, a task that she failed to do.

If a recipe book is not original, the defendants could not have infringed it. And that’s it!

— Adam G. Garson, Esq.

*Originally posted on October 6, 2015