So You Want to Be A Recipe Poacher?


NoteThis article is the result of academic musings of a not-yet-barred, nearly incompetent law student. It is not intended in any way to serve as legal advice, nor should it be construed as such. 

“Intellectual property,” broadly construed, covers a multitude of intangible, personal creations. But some creations, although within the scope of the term “intellectual property,” nevertheless lie outside the legal protections afforded certain subsets of IP. Think of jokes. Comedy is doubtless a creative endeavor, but comedians don’t receive much protection [if any] under the Copyright Act. Instead, comedians rely on social norms to “police” their community and ensure no content is poached.

What about poaching recipes? While someone can’t copy and paste my exact post and call it their own, can they take just my recipe? Although the recipe is often the core of the post, it’s merely a list of ingredients. But then again, it’s a list of ingredients that I’ve spent a lot of time, research, and practice measuring, sampling and perfecting; that I’ve ordered in a certain way; that I’ve described in a certain way; and that I’ve placed in a particular manner into this post. The content is “mine” [save for the recipes that I’ve clearly marked as “not mine”], but what does “mine” mean?

The U.S. Copyright Office advises: “Copyright law does not protect recipes that are mere listings of ingredients.” An actual cookbook compilation, with illustrations, anecdotes and more is a different story – but the individual recipe standing alone doesn’t appear to be “copyrightable subject matter.” In a particularly illustrative Seventh Circuit opinion, in which a plaintiff claimed that its recipes were taken and put into a cookbook without its permission, the court found the recipes un-copyrightable:

The recipes involved in this case comprise the lists of required ingredients and the directions for combining them to achieve the final products. The recipes contain no expressive elaboration upon either of these functional components, as opposed to recipes that might spice up functional directives by weaving in creative narrative…The identification of ingredients necessary for the preparation of each dish is a statement of facts. There is no expressive element in each listing; in other words, the author who wrote down the ingredients for ‘Curried Turkey and Peanut Salad’ was not giving literary expression to his individual creative labors. Instead, he was writing down an idea, namely, the ingredients necessary to the preparation of a particular dish. ‘[N]o author may copyright facts or ideas.’…”

[Publications International, Ltd. v. Meredith Corp., 88 F.3d 473 (7th Cir. 1996) – the opinion is pretty amusing as a whole, take a look] There’s a general notion that the lists and steps, in and of themselves, are just that and do not rise to the level of copyrightable material.**

So returning to my previous question: can someone just “take” my recipe? The answer, regardless of the Copyright Office and the Seventh Circuit, still seems to be no. This is so not because of any legal protection, but instead because of the “norms” of the blogging community.

Much like the aforementioned comic community, the blog world is self-regulated, following a certain code that even includes sanctions. In the world of comedy, if you’re accused of taking someone’s joke and found “guilty” by your peers, you’re liable to be publicly reprimanded by that person, kicked off of a comedy circuit, or shunned by producers.*** The blog world is similar, although there’s not as much of an outright ban on utilizing others’ content. The top rule of the blogosphere is: credit where credit’s due. When I use someone else’s recipe, like Angela‘s or Kathy‘s, you’re sure to find their names, links to their site [multiple times], links to the specific recipe, and notes as to where I diverged. Before I even began blogging about food, I knew this was exactly what I had to do if I was going to be testing other people’s content. I didn’t need a law to tell me that, it’s accepted [and expected] practice in the blogosphere.

Failure to credit the true author or creator of the recipe risks all sorts of “sanctions” ranging from being “shunned” from the foodie community [meaning no one will engage or experiment with your content] to being shut down by your domain host if complaints abound.

So, is it “legal” to take others’ recipes? Maybe, but that’s irrelevant, because being a recipe poacher is inappropriate and not accepted. It’s not financially feasible for most of us bloggers to hire a lawyer to vindicate our right to our favorite cookie recipe; but that doesn’t mean we don’t expect fellow bloggers and readers to follow the rules, and hold ourselves to the same standards. For the most part, this system seems to work.

* This post was inspired by an article prepared by two of my professors on the “copyrightability” of jokes and how the comic community enforces protection of content through social norms rather than copyright law. Dotan Oliar and Christopher Sprigman, There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, 94 Va. L.Rev. 1787 (2008). For the PDF, go here.

** For more information, see Nimmer on Copyright § 2.18[I], at 2-204.25.26 (May 1996): “Th[e] conclusion [i.e., that recipes are copyrightable] seems doubtful because the content of recipes are clearly dictated by functional considerations, and therefore may be said to lack the required element of originality, even though the combination of ingredients contained in the recipes may be original in a noncopyright sense.”

*** For Oliar and Sprigman’s discussion of enforcement of sanctions against “joke thieves,” see 94 Va. L.Rev. 1787 at 1815.


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Categories: Food

Author:ryesandshine

Courtney grew up in Reading, PA, and has lived in New York City (where she earned a bachelor's degree at NYU), Prague, Philadelphia, and Charlottesville (where she received a J.D. from UVa Law). Courtney and her new husband will settle in Philadelphia following a six-week Euro-trip extravaganza in September of 2012. Courtney's interests include music, writing, criticism, fitness, travel, cooking, and sports. Please enjoy the blog. LinkedIn: http://www.linkedin.com/pub/courtney-marello/1a/375/b30 Tumblr: http://abarrelofoddsandends.tumblr.com/

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8 Comments on “So You Want to Be A Recipe Poacher?”

  1. November 9, 2011 at 5:37 pm #

    Very interesting. I wonder about these topics sometimes. I’m glad I’m not alone.

    • November 9, 2011 at 5:40 pm #

      Yeah. I like to just make sure I always credit anyone I write on. A few bloggers I follow that write posts about beginning a blog ALWAYS write on giving credit/acknowledging the original author. I think it goes without saying.

      • November 9, 2011 at 5:43 pm #

        I sure hope it does. This is a creative outlet for me. I don’t want my content stolen. It would be like someone taking my artwork.

      • November 9, 2011 at 10:58 pm #

        I think it’s a LOT like taking someone’s artwork. It’s your personal expression, too, just not with paints or oils 🙂

  2. November 9, 2011 at 8:50 pm #

    Very nice post! I have come across a few recipes that have been “poached” so many times that it’s difficult to find out who the original author was. You are very right that the blogosphere is self-regulating. I often never visit those blogs again! ~Ruth~

    • November 9, 2011 at 10:57 pm #

      Same. It goes to the character of the author almost, I think. I’d rather engage with writers who are truthful and supportive of their communities, and who promote progress by offering their own content, whether it’s a new recipe or their own opinions, etc. If someone was “caught” taking others’ recipes, I think I’d be with you, Ruth, and stop following them!

  3. November 9, 2011 at 9:03 pm #

    I always credit and am obvious if a recipe is not mine. I do however see some posts crediting the original author in the smallest of font at the bottom edge of the post. Not sure why, there are tons of bloggers out there that never create recipes of their own and it does not seem to impact them in any negative way.

    • November 9, 2011 at 10:58 pm #

      Exactly, it almost seems like it would be in your best interest to credit loudly if you’re sharing someone else’s recipes. That way, they know you respect them and they’re more likely to treat you the same!

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