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Recipe Copyright Law. What is Commerical Use?
Everywhereasign
Registered User regular
Registered User regular
Here's the deal,
My mom is making a cookbook to be published with all the money going to a Non-profit charity, and is polling her family for recipes to use. (I am not asking for any here, but you can PM me if you feel generous)
The thing I'm stuck on is she wants to use a bunch of my favorites that I got from FoodTV. I know that these are their property and I can't reproduce them, print them, read them offline, or think dirty thoughts about them without expresss consent of the copyright holder. Reading their disclaimer though, they talk about these things is relation to "Commercial Use." She was told by "higher ups" at the company that she only has to alter a few ingredients and she can call them her own. O_o I don't think this is correct, but she's sure of her source (after all, they will hang, not her).
From Googling I can see that many people are publishing these FoodTV recepies online on other sites (I would read this as a violation of the copyright) is this kosher?
If any of my favorites *do* get used, it will be for a non-profit company. Is this considered "Non-Commerical"?
Any help or suggestions are appreciated. I want to help my mom, but I don't want the company to get sued because someone told her she could use "Inspired By" to cover her legal ass when stealing recipes. Either that, or I give them to her, and let her deal with the "higher ups." If that's the case, I'll also need a "I Steal Recipes Off The Internet" apron for her.
My mom is making a cookbook to be published with all the money going to a Non-profit charity, and is polling her family for recipes to use. (I am not asking for any here, but you can PM me if you feel generous)
The thing I'm stuck on is she wants to use a bunch of my favorites that I got from FoodTV. I know that these are their property and I can't reproduce them, print them, read them offline, or think dirty thoughts about them without expresss consent of the copyright holder. Reading their disclaimer though, they talk about these things is relation to "Commercial Use." She was told by "higher ups" at the company that she only has to alter a few ingredients and she can call them her own. O_o I don't think this is correct, but she's sure of her source (after all, they will hang, not her).
From Googling I can see that many people are publishing these FoodTV recepies online on other sites (I would read this as a violation of the copyright) is this kosher?
If any of my favorites *do* get used, it will be for a non-profit company. Is this considered "Non-Commerical"?
Any help or suggestions are appreciated. I want to help my mom, but I don't want the company to get sued because someone told her she could use "Inspired By" to cover her legal ass when stealing recipes. Either that, or I give them to her, and let her deal with the "higher ups." If that's the case, I'll also need a "I Steal Recipes Off The Internet" apron for her.
"What are you dense? Are you retarded or something? Who the hell do you think I am? I'm the goddamn Batman!"
Everywhereasign on
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Not necessarily, and in fact, probably not. If she were questioned about this in a court of law, she'd be required to admit that she copied and altered the recipes. This would constitute fairly blatant creation of a derivative work, and creation of derivative works is an exclusive right of the copyright holder. Putting "inspired by" would just cinch the deal - it's an admission that you're creating a derivative work.
Without a license to copy these recipes, that is a violation of copyright. This is unless the copying sites can claim fair use (for example, reproducing parts of the recipes for criticism) but wholesale copying (even for non-commercial use) is pretty straightforward infringement.
Maybe, but I'd ask a lawyer first, or just ask the FoodTV people for permission to reprint. Since you're doing it for charity, they will probably say "OK, as long as you include an acknowledgement that you got it from us, etc."
Looking up their actual policy indicates that you're not correct, by the way:
Reprinting in a cookbook is not "personal noncommercial home use" by any stretch of the imagination. Effectively, you can print out these recipes and keep them in, for example, a personal binder in the kitchen.
From the sounds of it, she's going to have to ask.
What you were saying about derivative work. One of my favorite recipes came from the "I Hate to Cook Book". Again, Google revealed this
A restaurant owner/chef is reproducing it, creating a derivative work and it's being published on the CBC web site. Although I wouldn't put it past him to have asked permission, it's not obvious that he did. This should also be pretty straight forward copyright infringement, no?
The more I get into this, the more I wish I hadn't. It seems that people think that because they're easy to reproduce and alter, recipes some how belong to whomever is cooking. They're all over the net, with and without listing who the original creator is.
I guess what I need are recipes with the Creative Commons non-Commercial licence. Their site indicated that with this, a non-profit company could use it as long as they kept the same copyright.
Reading the FoodTV legal info it sounds like you can't reproduce them outside of personal use.
I know that you can't patent recipes, that's why there is so much cloak and dagger around "secret ingredients"
But reproducing published work is different, or so I assumed.
EDIT: Wow, this is really interesting stuff. Check out this
It seems that recipes are not original works, they are an evolution. So the list of ingredients cannot be copywritten, as long as you don't recreate word-for-word the "creative" aspect of the reciepe. Not only that, but using "Adapted From" is common and accepted.
So it seems FoodTV is posturing to prevent theft. But I can publish any recipe on their site so long as I restate the instructions in my own words, give the author credit, change a thing or two and say "Adapted from" all within copyright law.
Some recipes can't possibly have a copyright, you see them in every single cookbook. Take biscuits for example. 2cups flour, 2tbspn baking powder, 1tbspn salt, 1/3 cup of shortening (or 1/2 cup lard), 3/4cup of milk. Every book is pretty much exactly the same (except for the measurement - some use 4tspn instead of 2tbspn).
You don't know this. At best, you're in a gray area of copyright law (and copyright law has an intentionally large gray area).
Your reading of the Washington Post article is flawed. While it says that cooking is not an "invention" but rather an "evolution," that's both colloquial and legally misleading. Copyright does not, nor has it ever, covered inventions. Patents grant intellectual property rights over inventions. Copyright covers fixed forms of expression. "Evolution" is not a core concept in either patent or copyright law, as far as I'm aware, but derivative works are.
Copyright law, and the parts of it covering derivative works, are broad and somewhat ambiguous. They are, for example, the reason why you can't legally create fan-fiction or fan-films without permission (whether or not you can do so and get away with it is a different story). A strong case could be made that a reworded recipe is indeed a derivative work.
Regardless, due to the fact that litigation is expensive and you're a small target, you could probably put in an attribution and get away with it. However, the Food Network would be well within its bounds to pay a lawyer $50 to send you a nastygram if thery were, for example, publishing a compendium or cookbook of their own and found out about yours.
Remember that nothing is legally true until it is litigated, especially with respect to IP law. The opinion of one guy in a Washington Post article means very little, and so unless you have clear case law, you're gonna have to use your own judgment on the matter. Without that, any assumption you make that you are somehow legally in the clear is specious.
Copyright protects the expression, not the idea. Recipe's are unprotectable essentially because it is a set of ideas all of which are useful (can't protect things that have utility). +
What you can protect is the phrasing of the instructions, which it looks like they are claiming proteciton for. Also, when copying whole sets of recipes in blocks, they could possibly go after you for their arrangement and selection (which is protectable on its own).
(Maybe a spring-loaded pie or something. That's always good for some comedy...)
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So she takes the recipe, learns it, and writes it back down. The ingredients are the same and the actual process being described is the same. The words are a little different in places.
They call it a derivative work, which is a sole right of the copyright holder. She's placed under oath. She admits that she re-wrote their recipe. She's infringing.
Think about it this way: Written music is pretty much the basis for all copyright law. It's why we have copyright laws. Written recipes are to recipes what written music is to music. I'd have a hard time believing that they're NOT protected by copyright law.
You can't take Harry Potter, re-name him Larry Dotter and write the same basic story as appears in any given Harry Potter book, you're still infringing because copyright is a little more fundamental than that. This should probably be the same.
I'd suggest that it'd be unlikely that the recipes would be discovered by someone who would result in the mother/non-profit being sued, but that if they were, that you'd be running a pretty decent risk. Even winning in court is expensive if you're the defendant.
CUZ THERE'S SOMETHING IN THE MIDDLE AND IT'S GIVING ME A RASH
That's my thinking, but I understand what DrFryLock is saying. I called a chef I know, (turns out he just published a book of his own) and he said that the only thing I could get in hot water for was if I copied the directions word for word. If someone rephrased it in their own words, I wouldn't have a problem. He restated what other have said as well, you cannot copyright a list of ingredients or even their quantities. The creative aspect is how they are put together and that can, and is, under copyright.
Although, yes, DrFryLock is right that FoodTV could send the company a Nasty'O'Gram, cooking as all about derivative work. There is no such thing as a truly original recipe. Mark, (the chef) also said that including "adapted from" is being polite but, again, not required by law so long as you aren't recreating their work word for word.
The only issue, is all of this is still speculation without precedent, or something written into law.
From the government.
A recipe book can be copyrighted. A recipe show can be copyrighted. A long historical writeup, or a story that accompanies a piece, or similar extensive additions to the content of the recipe itself can be copyrighted. The recipe itself (ingredients and basic instructions on how to put it together) are not copyrightable. It's inherent in how recipes are created that they build on previous knowledge and combinations of different parts. I've heard lectures from a large handful of copyright lawyers and they all explicitly state that recipes are one of the odd things that you'd think would be subject to copyright but aren't.
I was gonna say this. I don't think you can copyright the ingredients in something. You could directly take the ingredients list and then rewrite the instructions. I don't just mean paraphrasing, I mean really rewriting it.
If you did this I doubt they'd touch you.