One of the most confusing aspects of the food industry seems to revolve around recipes and copyright. Can you copyright a recipe, really?
The answer is really not that complicated.
Recipes are copyrighted to some degree when they are published, either on the Internet or in a hard copy venue. An ingredients list cannot be copyrighted but the instructions given are always protected under copyright laws. If you have a food and recipe blog you can use any recipe you want to but you must always make sure to create the recipe yourself, write the directions in your own words, and it’s always nice to link to the original blog or state where the inspiration for your recipe came from.
If you copy a recipe and publish it without following the suggestions above then you will be in violation of the original writer’s copyright and can be taken to court. If you have advertisers the original recipe creator can contact them and ask that they remove their ads from your site because of content theft. You don’t want to go there.
What about Images?
An image is always copyrighted. It is owned by the blogger (or photographer) whether it is watermarked with their name or not. Finding a random image on Google and publishing it to your blog is a direct violation of copyright and can get you in the same hot water as stealing a recipe.
Many bloggers are happy to let you use and image when you link back to the original site. It is imperative that you ask permission before “lifting” an image — even if you plan to link back. Be warned, many bloggers (myself included) will send you an invoice for an image if it is published without permission.
Can I Sell Items Created from a Copyrighted Recipe?
Sure! There is no reason that you can’t sell items that you have made from a particular recipe. Have you ever seen all of the knock-off foods in the grocery store? For example, there are Oreos and then there are five other brands of the same cookie. What you can’t do is sell the recipe along with the item, nor can you use any of the original wording or images in the packaging.
What Is Literary Expression?
Literary expression is protected by copyright and covers the wording in the description and instructions of the recipe. For example, if I am writing a recipe for Double Dark Chocolate Chip Cookies with Bittersweet Glaze I might describe the cookies like this —
Deep, dark chocolate cookies are crispy on the outside with chewy centers. The shiny, bittersweet chocolate glaze intensifies the flavor and provides a beautiful finish to this easy cookie recipe.
That entire description is part of the literary expression and copyrighted. The directions and any notes are also part of the literary expression in a recipe.
What Are the Consequences of Recipe Copyright Violation?
There are a lot of consequences to violating the copyright of a recipe. The first, and the one that would bother me the most, is the fact that you lose respect and credibility among your readers and peers. The legal ramifications are serious and may include—
- Receiving a DMCA, or a take down notice. This is from Google and requires that you remove the offending material from your site. Your adsense account can be revoked and you can be removed from the search engines.
- Taken to court. The original publisher of the recipe can take you to court for copyright violation. This will usually be done in a court in the writer’s home state and you will be required to attend or the court will rule in favor of the copyright holder. You could be fined, sued for damages and loss of income, required to pay court costs and legal fees as well as many other expenses.
- Social media attacks. This may seem like a small thing but if the blogger has a large following and calls you out on social media it could mean the end to your blog. You need readers and if you get the reputation as a content thief you’ll lose them by the truckloads.
What Can I Do?
In a nutshell you can cook any recipe from anywhere, photograph it, rewrite the recipe in your own words (remember it’s nice to give attribution), and publish it. You can cook any item from any recipe and sell it. Anything other than that requires a quick email to the copyright holder to ask permission.
It’s all really just about good manners and consideration of other people’s property — even their intellectual property.
What if I Want to Copyright a Recipe?
Remember — you can only copyright the literary expression not the list of ingredients. To legally copyright a recipe you will have to go through the copyright office, at least in the United States. You’ll need to send at least one copy of the work you want copyrighted. This is from the U.S. Copyright Office Website —
If the work is unpublished, one complete copy
If the work was first published in the United States on or after January 1, 1978, two complete copies of the best edition
If the work was first published outside the United States, one complete copy of the work as first published
If the work is a contribution to a collective work and was published after January 1, 1978, one complete copy of the best edition of the collective work or a photocopy of the contribution itself as it was published in the collective work
A recipe that you post to your blog is automatically copyrighted upon publication. You don’t need to do anything else. Remember, it’s just your own, original intellectual property that you can claim.
When in doubt always contact the original recipe holder.