Copyright Protection for Recipes?

Published by An Katrien Jacobs | November 24, 2011

I. Recipes – What’s in a Name?

Many chef-owners work very intensively and competitively on new food-creations and want to protect their investments. Many high profile chefs are becoming household names, and thus their investors want copyright protection too. There exists significant value in what high profile chefs produce and thus it might be wise to demand intellectual property protection. [1]

Where does the creative cooking find its inspiration? Many chefs openly admit that they base their dishes on versions that they have previously seen or eaten. Chefs often borrow or expand on fellow chefs’ ideas and derive new dishes from them. However, ethical guidelines of – for example – the International Association of Culinary Professionals stipulate that their members may not knowingly use any recipe of another Chef for their own financial or professional advantage. [2]

However, cooking traditions are slowly changing and many chefs are trying to create a “nouvelle cuisine.” Therefore, many chefs desire increased intellectual property protection for their creations. This marriage between food, chemistry and technology reflects an important turning point in the history of cooking. Chefs are now looking to expand intellectual property laws to certain culinary related creations. [3]

There are two questions at stake in this article:

  • Firstly, do recipes and dishes constitute intellectual property?
  • Secondly, should the copyright law protect them?

II. Recipes and Copyrights: Requirements to Be Protected?

The question whether recipes are protectable under copyright laws is not easy to answer. Firstly, the individual recipe always has some kind of personal stamp of the creator. No creation without inspiration! [4] On the other hand, the dish made on the basis of the recipe is a different issue.

Concerning recipes, there exist a dichotomy between the idea and the expression. It is clear that the basis of the recipe, i.e. the idea, is not protectable under copyright law. By contrast, one might argue that the expression of the recipe, i.e. fixed and made public, may cause the recipe to enter into the scope of copyright law.

     1. Recipes and Copyright protection

In a written form, recipes are merely lists of ingredients, combined with a list of instructions. These ‘formulas’ are easy to adept and can be multiplied. It follows that such mere lists do not fulfil the condition of original work of authorship and thus are not subject to copyright protection. However, if the recipe is accompanied by substantial literary expression, such as advice on wine pairings or table settings or hints on appropriate music, or when there is a combination of recipes such as in a cookbook, there may be a basis for copyright protection. It must be noted that the copyright is limited to the particular selection or arrangement, and does not cover the recipes themselves. [5] A Belgian First Instance Commercial Court concluded in the same way stating that a recipe cannot be considered as a ‘literary and artistic work’ and the recipe as such does not possess a personal stamp of the author, since recipes are part of the public domain. [6] It thus surprisingly follows that anyone can read a cookbook and use a recipe it describes and accordingly create a dish based on the recipe, without infringing copyright protection.

Concerning recipes, there exists a dichotomy between the idea and the expression. It is clear that the basis of the recipe, i.e. the idea, is not protectable under copyright law. By contrast, one might argue that the expression of the recipe, i.e. fixed and made public, may cause the recipe to enter into the scope of copyright law.

     2. Dishes and copyright protection – Lessons to be drawn from perfumes?

While recipes are detailed series of instructions to prepare a dish, a dish is the result of embedding an intangible taste. The issue of copyrightability of perfumes is very closely related to the issue of copyrightability of dishes, since a perfume can be defined as an intangible aroma of liquid or solid substances. The common factor is ‘intangibility’, which makes it very difficult to decide on copyrightability. [7] Both the creation of a perfume or dish are creative and artistic endeavours. Creators of fragrances and cooking recipes continuously strive to create new scents and recipes. It thus might be argued that the protection of perfume creators, and creators of cooking recipes through copyright laws must be in the same way as other artists are protected.

Dishes and fragrances are often considered to result from know-how and therefore, it is argued that they are not creations. Know-how is beyond the scope of copyright protection and thus is only covered by contractual rights, not exclusive rights. However, fragrances and dishes cannot be considered as simple results of know-how. One should thus ask whether fragrances makers and cooking chefs could be considered as creators of copyrightable art. [9]

The Dutch Supreme Court decided recently in Lancome v. Kecofa [10] that the perfume (Trésor) was protected by copyright law. Even though the nature of perfumes is fleeting, variable and depending on the environment, “material (liquid) that gives off the scent can be perceived through the senses and is sufficiently concrete and stable to be considered as ‘work’ under the Dutch Copyright Act.”[11] The Dutch Supreme Court thus concluded that the liquid would satisfy the fixation requirement and that the perfume was a creative composition. For these reasons, the perfume qualified as a work under the Dutch Copyright Act and thus was protected by copyright law. [12]

By contrast, the French Cour de Cassation decided twice that works intended for consumption primarily through the sense of smell lack the creativity to constitute copyrightable subject-matter. For example, in the Bsiri-Barbir v. Haarman & Reimer case [13], the French Supreme Court decided that the fragrance “does not constitute a tangible form of expression and therefore is not subject to copyright protection.” According to the Court, fragrances are manufactured through the application of merely technical knowledge and thus are not expressions of the mind of the person who compiles perfume ingredients. Therefore, perfumes are not copyrightable since it is merely putting together chemicals, an act that lacks the creativity necessary to constitute copyrightable expression under French law.

However, some French courts kept ruling that perfumes should be eligible for copyright protection since it was not merely the product of technical skills but original work. They all decided that perfumes were not excluded a priori from the French Copyright Act and that the Act did not require the work to be fixed, only perceptible. Therefore, according to the French Appellate courts, perfumes should be copyrightable if they are original and reveal the creativity of the author. [14] Still, the French Cour de Cassation reversed the Appellate Court’s decision in Beaute Prestige Int. v. Senteur Mazal [15] that perfumes could be copyrightable “precisely because they could embody the imprint of their creators’ personalities.” In conclusion, according to the French courts, perfumes are eligible for copyright protection, while the Supreme Court keeps deciding otherwise.

The main problem for the French Supreme Court was that perfumes were not copyrightable because its creativity did not rise to the level of art. However, there are several arguments stating that dishes could be defined as works of art. Firstly, works of art are expressed forms of human creations, destined to be communicated through a specific form. This expressed form can be perceived by all five senses, including smell and taste. It follows that not only the mechanical senses, i.e. used for graphics, statues and music songs are to be considered. However, smell and taste work of art is often considered as not objective, nor stable. Still, the perception of the expressed form may be subjective, since every work of art is. [16] Secondly, article 2 of the Berne Convention contains only a non-exhaustive list of protectable works of art. It follows that fragrances and dishes are not excluded a priori. These authors argue that dishes should fall within the scope of protection of copyright. [17]

III. Should copyright law protect culinary gastronomy?

Copyright protection is an intellectual property right that is granted to creative works of art. As all intellectual property rights, copyright is a strategic tool for development. The ultimate goal of copyright protection is to stimulate artistic creativity for the general public good. It seems that this goal would also benefit the intentions of cooking chefs, trying to create new recipes and cuisine.

In my opinion, however, it must be noted that even without copyright protection, significant incentives remain to exist for chefs to create new and interesting cuisine. For example, the omnipresence of food critics and a desire for professional reward, the desire to satisfy consumers, … push a chef to make his restaurant different from the rest. [18] It might be that industry norms – which condemn the merely copying of recipes – or public humiliation of a copying chef, are enough to prevent other chefs from using recipes from other chefs. However, indirect protection, i.e. outside copyright protection, is certainly not what chefs and cooking-inventors have in mind.

Therefore, it is interesting to look for any alternatives. Some recipes can be patented! However, only novel and inventive recipes can be protected. For a recipe to be novel, it must have never been published or used before. To be inventive, the recipe must be one that a cook of ordinary skill would not be expected to devise. It follows that only few recipes would meet both requirements. Still, for example, a recipe to cook lasagne in only 30 minutes instead of 45 minutes was patented. [19] If a recipe is patented, you only can use the recipe to create a dish with the permission of the patent owner.

In addition, some chefs are trying to keep their recipes a trade secret. Trade secrets may effectively protect any new method of making food and the dish itself. [20] Very famous examples are the Coca Cola formula and the ‘special sauce’ of McDonalds’ Big Mac. However, trade secret protection offers little legal resources once a trade secret “gets out”. Moreover, non-disclosure agreements also could be a possibility for protecting recipes or dishes.

IV. Conclusion

Since copyright law only protects “original works of authorship”, it follows that the concept of copyrightable recipes assumes that chefs are able to create an original dish. [21] However, culinary traditions are often collective inventions. One might even say that it is a heritage created by hundreds of generations of cooks. These dishes are all in the public domain and thus belong to everyone. For this reason, it must be considered whether a minor change to or trivial variations on an underlying work – even if the recipe were in the public domain already – would render a new recipe original and worthy of copyright protection. It seems that most legal scholars are very much against the idea of granting copyright protection to recipes. Ideas always should remain outside the scope of copyrights. However, others argue that recipes and dishes should be protected by copyright law. This highly debated issue shall remain unanswered for some time. Unfortunately, today, there exists very poor protection for chefs and their investors who would like to see their creations to be protected by intellectual property law.

[1] E. CUNNINGHAM, “Protecting cuisine under the rubric of intellectual property law: should the law play a bigger role in the kitchen?”, Journal of High Technology Law 2009, Vol. IX, No. 1, 22-23.

[2] International Association of Culinary Professionals, IACP Code of Professional Ethics (http://www.iacp.com/displaycommon.cfm?an=1&subarticlenbr=9). (1) Where one obtains a recipe from another source and makes minor changes, but the recipe remains fairly intact, one should credit the source; (2) Where one has made changes to a recipe, but the original essence still remains, one should indicate that the recipe is “adapted from” or “based on” another; and (3) Where one has changed a recipe considerably, but still wants to indicate derivation from the original, one should indicate it as “loosely adapted from” or “inspired by” another recipe.

[3] E. CUNNINGHAM, “Protecting cuisine under the rubric of intellectual property law: should the law play a bigger role in the kitchen?”, Journal of High Technology Law 2009, Vol. IX, No. 1, 25-26.

[4] P.B. HUGENHOLTZ, “Recept, Gerecht en Auteursrecht”, in D.W.F. VERKADE and D.J.G. VISSER, Intellectuele eigenaardigheden. Opstellen aangeboden aan Mr. Theo R. Bremer, Deventer, 1998, Kluwer, 175-179.

[5] S. SHENK, “A recipe for a non-traditional intellectual property proctection”, Communication, Culture and Technology 2009, 4.

[6] Commercial Tribunal of Liege (6th Chamber) of 26 November 2009, N. Darchambeau v. SA Editions du Perron et autres.

[7] C. SAPPA, “Non-conventional Copyright Subject Matter: Fragrances and Gastronomy”, Theme 5 WIPO International Convention on Intellectual Property and Competitiveness of micro, small and medium-sized enterprises, 9 December 2010 (www.wipo.int).

[8] D.A. EINHORN and L. PORTNOY, “The Copyrightability of Perfumes: I Smell a Symphony”, Intellectual Property Today 2010, 8.

[9] C. SAPPA, “Non-conventional Copyright Subject Matter: Fragrances and Gastronomy”, WIPO-CNEL Conference 11 December 2010 (www.wipo.int).

[10] Supreme Court of the Netherlands of 16 June 2006, Lancome v. Kecofa.

[11] D.A. EINHORN and L. PORTNOY, “The Copyrightability of Perfumes: I Smell a Symphony”, Intellectual Property Law Today 2010, 8.

[12] D.A. EINHORN and L. PORTNOY, “The Copyrightability of Perfumes: I Smell a Symphony”, Intellectual Property Law Today 2010, 8.

[13] French Supreme Court of 2006, Bsiri-Barbir v. Haarman & Reimer.

[14] D.A. EINHORN and L. PORTNOY, “The Copyrightability of Perfumes: I Smell a Symphony”, Intellectual Property Law Today 2010, 9.

[15] French Supreme Court of 1 July 2008, Beaute Prestige International v. Senteur Mazal.

[16] C. SAPPA, “Non-conventional Copyright Subject Matter: Fragrances and Gastronomy”, WIPO-CNEL Conference 11 December 2010 (www.wipo.int).

[17] C. SAPPA, “Non-conventional Copyright Subject Matter: Fragrances and Gastronomy”, WIPO-CNEL Conference 11 December 2010 (www.wipo.int).

[18] E. CUNNINGHAM, “Protecting cuisine under the rubric of intellectual property law: should the law play a bigger role in the kitchen?, Journal of High Technology Law 2009, Vol. IX, No. 1, 36-37.

[19] Pat. No. 5,939,113 USA.

[20] E. CUNNINGHAM, “Protecting cuisine under the rubric of intellectual property law: should the law play a bigger role in the kitchen?”, Journal of High Technology Law 2009, Vol. IX, No. 1, 50.

[21] E. CUNNINGHAM, “Protecting cuisine under the rubric of intellectual property law: should the law play a bigger role in the kitchen?”, Journal of High Technology Law 2009, Vol. IX, No. 1, 37.

[22] E. CUNNINGHAM, “Protecting cuisine under the rubric of intellectual property law: should the law play a bigger role in the kitchen?, Journal of High Technology Law 2009, Vol. IX, No. 1, 24.

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