Cream of the Crop: Exploring the Protection of Recipes among Chefs • Law and the Senses

A piece of cake on a plate Description automatically generated — Picture of a dessert served at Chef Thomas Keller’s Per Se

Danielle Maor
BCL/JD II
Faculty of Law, McGill University

1 December 2020

In 2011, pastry chef Anne Thornton found her Food Network show Dessert First cancelled amid a recipe plagiarism scandal. Thornton allegedly copied recipes from other Food Network chefs, notably Martha Stewart and Ina Garten, with only minor modifications. In her defense, Thornton said: “I get inspiration from all my heroes […] As for the lemon squares, there’s only so many ways you can make them, so of course there will be similarities.”

Incidents like this raise important questions about the limits of copying and the different protections provided to recipes. This probe will explore these legal and normative protections. Part I will look at the copyrightability of recipes, outlining its limited history. Part II will argue that social norms within the culinary community are better suited to protect high-end chefs’ interests than formal intellectual property law.

Part I: The Copyrightability of Recipes

Before delving into the history of the copyrightability of recipes, an account of the legal mechanisms governing copyright is in order. In the United States, copyright protection is afforded by § 102(a) of the 1976 Copyright Act, which protects “original works of authorship fixed in any tangible medium of expression.” It includes eight protectable categories:

(1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8) architectural works.

Although recipes do not appear on this list, scholars have noted that the Copyright Act does not necessarily exclude them from protection given that this list is deemed “illustrative and not limitative.”

Section 102(b) of the Copyright Act follows, specifying that copyright does not extend “to any idea, procedure, process, system, method of operation, concept, principle, or discovery.” Considered a more significant barrier to copyright protection for recipes, § 102(b) encapsulates the idea-expression dichotomy, which limits copyright to the “expression” of an idea as opposed to the idea itself. The United States Copyright Office has further stated:

A mere listing of ingredients is not protected under copyright law. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a collection of recipes as in a cookbook, there may be a basis for copyright protection.

Although the question of the copyrightability of recipes has seldom been treated by courts in U.S. legal history, it has come up in a handful of cases with the courts taking varying approaches.

In 1924, the Eighth Circuit heard Fargo Mercantile Co v Brechet & Richter Co, a case about the copyrightability of a product label containing a recipe. Taking a very liberal approach, the court separated the label into (1) the emblem and other identifying information and (2) the recipes. While the court found that the emblem was uncopyrightable, it did not hesitate to grant copyright protection to the recipes, finding that they “are not mere advertisement; they are original compositions” that “serve to advance the culinary art.” In other words, the court found that the recipes on the product label displayed the requisite originality to merit copyright protection.

Despite the court’s ease in granting copyright protection in Fargo Mercantile, modern courts have exhibited a general reluctance to do so as in the 1996 case Publications International, Ltd v Meredith Corp. Meredith Corp had published a cookbook titled Discover Dannon – 50 Fabulous Recipes with Yogurt, for which it had received a registered copyright as a “compilation.” Meredith Corp alleged that Publications International, Ltd had infringed its copyright by issuing twelve publications containing recipes from Discover Dannon. Publications International argued that Meredith Corp’s copyright protection extends only to the work of compilation – i.e. the order and manner in which the recipes were collected and assembled – as opposed to the individual recipes.

A box filled with different types of food Description automatically generated — Cover page of Discover Dannon – 50 Fabulous Recipes with Yogurt

Whereas the district court found that the recipes were protected under copyright, the Circuit Court found that they were not as they were mere lists of ingredients that contained “no expressive elaboration.” Moreover, the Seventh Circuit found that recipes fit squarely within the exception provided in § 102(b) of the Copyright Act, which excludes copyright protection for “any idea, procedure, [or] process.” Scholars have noted that the court did “soften its ruling” by acknowledging that certain recipes mat be copyrightable if, for instance, authors “lace their directions for producing dishes with musings about the spiritual nature of cooking or reminiscences they associate with the wafting odors of certain dishes.”

Following the Publications International case, the Sixth Circuit court heard Lambing v Godiva Chocolatier (1998). Lambing sued Godiva Chocolatier for copyright infringement, alleging that Godiva copied both the recipe and design of her “David’s Trinidad” truffle. Relying on Publications International, the court held that recipes are not copyrightable as they are “functional directions for achieving a result and are excluded from copyright protection under 17 U.S.C. § 102(b).”

Buccafusco posits that the lack of copyright protection for recipes in U.S. law can be traced to traditional Western attitudes towards the sense of taste. Ever since ancient Greece, philosophers have been ranking the five senses – vision, hearing, touch, smell, and taste (in that order) – based on their perceived importance and objectivity. Because they allegedly provide the best and most accurate information about the world, the senses of vision and hearing have traditionally been ranked highly. As Classen and Howes and Classen observe, touch, smell, and taste, on the other hand, are considered sensations felt inside the body, and are thus subjective and unreliable, according to the conventional western hierarchy of sensing.

The sense of taste in particular has been denigrated by religious traditions for its association with overindulgence and gluttony – one of the seven deadly sins. As such, Western traditions have long treated food, and by extension the sense of taste, as a practical necessity residing outside the realm of aesthetics and artistic creation. Buccafusco therefore argues that “historical ideas related to taste and food […] have hindered the law’s recognition of cuisine as an expressive work of authorship.”

Part II: Social Norms in the Culinary Community

Given the minimal legal protection afforded to recipes, many scholars argue that the social norms within the culinary community might provide better ways of protecting recipes from being copied. Research reveals that chefs themselves often object to formal copyright protection for their recipes and do not enforce their intellectual property rights. After interviewing a number of leading American chefs, Buccafusco found that there is a culture of sharing and hospitality within the culinary community, which makes chefs uncomfortable with the idea of exclusive ownership of a recipe. In his interview, Thomas Keller – renowned chef and owner of restaurants The French Laundry, Per Se, and Bouchon – expressed: “There’s a hospitality gene that we have as chefs that makes us want to share what we do.”

Despite this culture of sharing, chefs still desire to be recognized for their contribution if other chefs use their recipes. In their study of French Michelin-star chefs, Fauchart and von Hippel found that rather than resorting to formal copyright protection, chefs follow a norm-based intellectual property system. This system consists of three important social norms: (1) “a chef must not copy another chef’s recipe innovation exactly,” (2) “if a chef reveals recipe-related secret information to a colleague, that chef must not pass the information on to others without permission,” and (3) “colleagues must credit developers of significant recipes as the authors of that information”. Those who violate these norms can face sanctions such as shaming and loss of reputation within the culinary community.

A prime example of the functioning of these norms can be seen in the culinary theft scandal involving Australian chef Robin Wickens. In 2006, a user of the online food forum eGullet claimed that Chef Wickens was serving dishes identical to those served by Chef Grant Achatz at his restaurant Alinea in Chicago and by Chef Wylie Dufresne at WD-50 in New York. Following this claim, the staff at eGullet posted a series of photographs comparing Chef Wickens’ dishes to Chefs Achatz and Dufresne’s creations, confirming their similarity not only in terms of recipes but also in terms of plating. This scandal caused outrage in the culinary community, which led to Chef Wickens being shamed and losing his reputation for his blatant copying.

Side-by-side comparison of Chef Wickens’ (right) and Chef Achatz’s (left) dishes, both presented in an unusual glass serviceware

Though the case of Robin Wickens demonstrates the power of culinary social norms, Lawrence argues that these norms apply solely to chefs of high-end restaurants who are bound by industry standards. Culinary norms do not pertain to food bloggers as they are not governed by these standards. In fact, as stated by Fauchart and von Hippel, “norms-based IP systems [may] apply to a more limited scope of actors than do law-based systems.” A study conducted by Attributor, an online content-tracking company, found 10,000 incidents of food bloggers copying recipes directly from the three recipe websites that were studied: Allrecipes.com, Epicurious.com, and RachelRayMag.com. In more than 60 percent of these cases, the food bloggers responsible did not credit the original source. Because of the rising tendency within the food blogging community to copy others’ recipes without giving credit, Lawrence believes that the only way of truly protecting recipes is by expanding copyright law.

However, an expansion of copyright law might not be desirable as it may be ineffective in preventing copying. Cuisine is said to exist in intellectual property law’s “negative space,” remaining unprotected by formal legal rules. Despite receiving limited legal protection, the culinary community continues to flourish, which is why the restaurant industry is said to function in a “low-IP equilibrium.” The constant sharing of ideas and techniques in this industry plays a big role in innovation. If copyright law were to expand, it would only protect recipes as “literary works.” In essence, this means that only the literary elements of the recipe – the exact wording and literary style employed – would be protected, whereas its culinary aspects – the ingredients, quantities, and methods – could be freely reproduced by other chefs or cooks. Additionally, the “performance” of the recipe, i.e. cooking the dish, would not be protected, rendering the expansion of copyright law futile.

As for the more radical idea of copyrighting not only the recipes themselves but also the performance of the dish, innovation within the culinary world might even be stifled. As argued by Buccafusco, this type of copyright would grant copyright holders the exclusive right to perform the dish publicly, “thereby dissuading other chefs from experimenting with the dish for fear of running foul of the law.”

Given the legal system’s unwillingness to grant copyright protection to recipes, it could be argued that chefs must turn to the social norms governing their industry to protect their creations. Although these norms seem to be effective in the small group of high-ranking chefs, however, they lose their grip in the broader group of food bloggers. Because the expansion of copyright law is both unlikely and undesirable, food bloggers should perhaps attempt to establish their own norms to protect their recipes and promote creativity.

All links accessed on August 4^th, 2020

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