Your IP Valentine: Can Recipes Be Protected by Copyright?

According to the code of ethics of the International Association of Culinary Professionals, a culinary professional must not knowingly "appropriate [...] any recipe or other intellectual property belonging to another without the proper recognition." And, in addition to the ethical, there are legal issues. While copying culinary creations might not sound like a big deal to millennial food bloggers and vloggers, lawsuits—sometimes with high stakes—have been filed over (mis)appropriated recipes. But whether claims to a signature dish will hold up in court is a different question and will likely depend on the scope of protection of the applicable copyright law(s).

The Literary Work

The written expression of a recipe (explanations and directions) is likely to be protected as a "literary work" in most jurisdictions. For example, the Court of Justice of the European Union (Case No. C‑5/08) held that even an 11-word newspaper article extract may be protected subject matter under the Copyright Directive (2001/29/EC), provided that it is original in the sense that it is the author's own intellectual creation. One can, therefore, safely assume that quite a few recipes that were published online or in print could be considered literary works subject to copyright protection. However, the copyright in a literary recipe only prevents unlicensed copying of the text, not the functional means for achieving a culinary result. Whether the recipe itself could be eligible for protection is another matter entirely: ideas like the ingredients necessary to the preparation of a particular dish are generally not copyrightable.

The Mere Listings of Ingredients

The US Copyright Office, for example, issued a factsheet that "copyright law does not protect recipes that are mere listings of ingredients." This view was backed by the US Court of Appeals for the Sixth Circuit in the non-precedential case Tomaydo-Tomahhdo, LLC v. Vozary , 629 F. App'x 658 (6th Cir. 2015). The court held that while there can be a copyright in the arrangement and creative expression contained in a recipe book, protection did not extend to the recipes themselves. A list of ingredients was "merely a factual statement, and [...] not copyrightable." However, a compilation of such facts could be eligible for protection, if it was an original selection. For example, on 28 March 2012, the Regional Court of Frankfurt am Main (Case No. 2-06 O 387/11), Germany, held that a selection of recipes suitable...