Law of Recipes

Every week I get a handful of questions about whether recipes are copyrighted or copyrightable, and whether a recipe can be patented. This page is intended to shed some light on these common questions.

Are recipes copyrightable?

First, mere listings of ingredients as in recipes, formulas, compounds or prescriptions are not subject to copyright protection. 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 combination of recipes, as in a cookbook, there may be a basis for copyright protection.

It is worth spending a moment to discuss what is meant by “substantial literary expression.” In US Copyright Law there is a prohibition against protecting even original expression if there is only a limited number of ways to convey said expression. The best example I can give is from an actual case where the creator of a mail in sweepstakes claimed copyright infringement because someone uses substantially the same language in their mail in sweepstakes rules. The court found that there is only a limited number of ways to say “send your name, address and telephone number to…” You could alter this to say “in order to enter send to …. your name, address and telephone number.” There does not need to be exact identity for copyright infringement, all that is required is substantial similarity. If the former is copyrighted then the later would infringe under this substantial similarity test. Therefore, there is a prohibition against protection when there is only a limited number of ways to express an idea. This is referred to as idea/expression merger. This has significant impact for recipes as well. Simply listing generic steps or directions cannot, in my opinion, be protected. So a recipe that lists the ingredients and then says “mix together, pour into pan, put into oven at 350″ seems to me to lack “substantial literary expression.” Of course, the more originality that is infused the more likely some copyright protection will exist, but taking the component pieces of a recipe is no violation.

It is also worth spending a moment to discuss copyright protection for compilations. While you could copy a recipe from a book, copying the entire book would violate the copyright in the book, which is a compilation. Protection under the copyright law extends only to “original works of authorship” that are fixed in a tangible form (a copy). “Original” means merely that the author produced the work by his own intellectual effort, as distinguished from copying an existing work. Important for our discussion here is an understanding that the originality requirement is very low indeed. It is enough originality to take unprotected component pieces and arrange them in an original fashion. The book itself would be entitled to an arrangement copyright but the component pieces would not be protected. Therefore, you could copy a recipe but not copy and republish the entire book. The book is what would be protected, not the individual component pieces.

Are recipes patentable?

I know of no reason why one could not obtain a patent on a recipe. Patents can certainly be obtained on a method of making something and on compositions of matter. It seems to me, therefore, that there can be no reason to believe there is an absolute prohibition on obtaining a patent on a recipe or a food product.

In order to obtain a patent it is, however, essential that the patentability requirements be satisfied. If the patentability requirements are satisfied then the patent applicant is entitled to a patent. In my opinion, when dealing with recipes the critical patentability questions are whether the recipe or food product is novel and nonobvious in light of other recipes. In most (if not all) instances the answer is likely to be no.

Another question that a would-be recipe patentee should consider is how will the patent be used? Enforcing patent rights can be expensive, and in many circumstances I suspect a recipe patent or food product patent would be rather narrow and afford little real protection. Nevertheless, one important reason to obtain a patent is for advertising. Once a patent is applied for you can use in advertising the coveted term “patent pending.” If a patent issues you can also advertise “try my patented recipe.” The public at large knows very little about patent law, but most recognize that to get a patent means something special (i.e., that it has somehow been anointed by the federal government). If you are looking for this kind of reward from the fruits of your patent labors, then trying for a recipe patent could be well worth your time and money, particularly if you are a restaurant owner.