Copyright attorney Lesley Ellen Harris.
When Copyright Educator and Author Lesley Ellen Harris asked if I had any copyright questions for a blog post, I put the word out on social media. Food writers asked several questions. Lesley has generously answered them — in plain English.
Here are 8 answers to copyright questions about recipes and books:
1. When someone re-publishes my recipes word for word (headnote, instructions, variations, etc.) without attribution, I usually write to them and try to work it out. But if that goes nowhere, is there a legal avenue?
Copyright law doesn’t protect the list of ingredients in a recipe. However, the language used to describe the recipe’s instructions and the headnote are protected by copyright. Attribution may be a copyright issue but it’s also an issue of ethics. No one should be completely copying your recipes without your permission and without attribution.
There are several things you can do if someone uses your recipes without permission. Calling or writing the person is always a good first step. If you get no response or a response you’re not happy with, the best next step is to begin the DMCA notice and takedown process, or hire a lawyer to send a cease-and-desist letter on your behalf. Also, it’s always prudent to put a copyright notice on your recipes to remind people that copyright exists in them, and that they need to contact you to reproduce them.
2. Someone pirated a great deal of my online content, cutting and pasting it to a website registered outside of the U.S. The content included my photos with metadata. What can I do to stop them?
Use the same remedies as above, except for the DMCA takedown notice, which only applies to US-based sites. You could file a lawsuit for copyright infringement against a website owner in another country, but this might be a lengthy and costly process and its outcome less predictable.
3. I worked in a Chicago restaurant 20+ years ago, and kept all the fabulous recipes. The restaurant is now long gone. Can I publish these recipes? How long can a restaurant that no longer exists lay claim to recipes?
While a list of recipe ingredients can’t be copyright-protected, other elements can be. Copyright would reside in either the author of the recipes, or the restaurant if the author created them in the course of employment or certain commission circumstances. The duration of copyright in the U.S. is until 70 years after the author’s death; whether or not the restaurant still exists is immaterial.
The legal route in this situation is to make every effort to locate the restaurant owner, or the recipe author if you know who they are, for permission to use the recipes. If you’re unsuccessful, you could use the list of ingredients and write your own headnotes and directions, but make sure you make the ethical choice of providing attribution for the recipes. For example: “I enjoyed this pork roast with a caramel glaze at Harry’s Diner in Chicago back in the early 90s. The restaurant may be long gone, but the recipe remains a family favourite!”
4. If I develop recipes as an employee, who owns the rights to them?
Under U.S. copyright law, the employer owns copyright in a work that an employee creates in the course of employment, unless there is an agreement in place otherwise.
5. Many Kindle books on Amazon have copied my pressure cooker recipes. They’ll change a word or two in the name of the recipe, rearrange the ingredients but not change the ingredients or amounts, and reword the directions slightly. One book is basically an index of my recipes. Do I have any recourse?
Use the same remedies as mentioned in the first answer. This situation could be an infringement of your copyright with respect to the recipe directions. If you wish to pursue this further, consult a copyright lawyer.
6. Someone used the same title of my book for his book. Should I have tried to trademark the title when mine came out? If yes, is it too late to do that now?
Titles, names and short phrases are not copyright-protected under U.S. law. In some circumstances you can trademark protect a title, and you can initiate a trademark application after you’re already using it. Be aware that the trademark process is a complex legal process and the U.S. Patent and Trademark office advises that you consider use of an attorney. You should also consult a lawyer for other remedies outside of copyright law.
7. I wrote recipes for a publication six years ago. Now I want to reuse them. I was a freelancer at the time and there was no contract. Am I entitled to put them in a book?
In this situation, with no agreement that the commissioned work was a work made for hire, then, as the author of the recipes, you remain the first copyright owner and are free to use the recipes as you wish.
8. What about when someone uses your recipe to make a popular video and they don’t give you credit on the video or link to you. It’s a very specific recipe, not scrambled eggs or lasagna. Any recourse?
When you write and publish a recipe, anyone can make that recipe. It is not copyright infringement for someone to make a video of themselves making the recipe, but ethically they should be attributing the recipe to you.
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Lesley Ellen Harris is a copyright lawyer, author and educator. Lesley is the founder and publisher of the copyright resource site Copyrightlaws.com, where she explains the law in plain English. Copyrightlaws.com offers eTutorials to educate nonlawyers about legally using images and other copyright issues.
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