Recipes: Shared And Improved On For Years... Now Targeted By Copyright Cops?

from the using-this-recipe-may dept

Fri, Oct 19th 2007 7:34pm — Mike Masnick

Earlier this year, we noted that intellectual property issues were moving into the restaurant business, as one restaurant owner accused another of stealing both a restaurant concept and recipes from her restaurant. Last year we also had a story about some chefs trying to get additional copyright protection for their meals, which was a silly request. However, it seems like intellectual property concerns continue to flood the food space, with the firm Attributor, who sets themselves up as something of an online policing system for copyright infringement, has come out with a report about just how common it is for recipes to get passed around the web and posted by multiple people, potentially violating someone's copyrights. As the US Copyright Office makes (somewhat) clear, you cannot copyright a list of ingredients -- but you can copyright "substantial literary expression in the form of an explanation or directions." In other words, the explanation of what to do with the ingredients could be subject to copyright.

But the real question is whether or not this is really an issue. Attributor comes up with a bunch of made up numbers about how much this is "costing" certain sites, but that's not true. As with any bogus copyright "loss" stats, the numbers are both made up and exaggerated -- and have nothing to do with "losses." Rather, they represent dollars that the copyright owner failed to capture, meaning that it's a marketing problem, not a legal one. The story notes that top recipe sites like Epicurious and Allrecipes are losing out on traffic, but it fails to explain how. I use Epicurious quite a bit, and I go to the site not just because I trust it to have good recipes, but because of the additional features Epicurious provides -- including user ratings and reviews. In other words, even with the same recipes being available all over (and, perhaps infringing on copyrights) Epicurious has effectively bypassed this legal issue through smart business practices: building in additional features that make the site valuable enough to me that it's better than just searching out any random recipe online.

Furthermore, it seems especially silly to worry about copyrights in the recipe space. The purpose of copyrights (broken record, I know) is to encourage the creation of content. It is quite difficult to believe that anyone out there believes there is insufficient efforts in creating new recipes. In other words, without enforcing copyrights, there is already sufficient incentives for people to continually create new, interesting and delicious recipes. Historically, recipes have always been a type of content that was eagerly and willingly shared and passed around -- and it has always been common for people to create "derivative works" in modifying and adjusting the ingredients and the instructions to try to improve upon the product. To suddenly bring copyright protections into the space seems both a rejection of that history as well as against the entire purpose of copyrights.

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Filed Under: copyright, recipes

42 Comments

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Sal, 19 Oct 2007 @ 9:06pm

So now I can only get chicken parm at one restaurant?
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Lorraine, 19 Oct 2007 @ 9:10pm

I wanna be the first to copyright the recipe for toast!
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Danny, 19 Oct 2007 @ 9:13pm

How the hell...
do you calculate the losses from the infringment of a recipe? This is crazy. I'm waiting for new organizations to start claiming copyrights over the events they cover.
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Anonymous Coward, 19 Oct 2007 @ 10:22pm

So...
does this mean I can get a copyright for "mixing a flavored powder into water" and then proceed to sue Tang, Kool-Aid, Flavor-Aid, Crystal Light, Nestle, Nestea,...?
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Scott Gardner, 19 Oct 2007 @ 11:49pm

No, that would be a patent.
What you're talking about doing would require obtaining a patent on a process, not a copyright on a literary work.

And as for getting the patent for powdered drinks, the process you described would never pass the "non-obvious" test. I'm sure the makers of the drinks you mentioned DO have patents, but they probably involve things like how to prevent clumping in the dry powder, accelerating the dissolving of the powder in water, particular additives used to preserve freshness, etcetera
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PaulT (profile), 20 Oct 2007 @ 2:52am

Interesting fact:
I had never heard of Epicurious before reading this article. So, yeah it's a marketing problem, not copyright.
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Tempest, 20 Oct 2007 @ 3:12am

Another recipe site you might be interested in is recipezaar.com. I use it all the time.
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GeneralEmergency (profile), 20 Oct 2007 @ 6:23am

Ummm...Errr....
...Real men don't use recipes!
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Anonymous Coward, 20 Oct 2007 @ 6:38am

copyrights are getting rediculous
How can anyone do anything at all with all the copyrighting crap.I want to copywrite the entire earth then or just the letter s,r,t,a,e,i,o,and u.how about spike since that bitch spike lee sued spike tv,or windows since msn thinks windows have not been around for hundreds of years.Copyrights on 1 word or nouns is friggin stupid and just plain WRONG
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David King, 20 Oct 2007 @ 6:54am

A good sauce is a melody
Traditionally, there has also been great effort in creating new music, independent of copyright. Music was willingly shared in the folk tradition, often with resulting derivative works. Do we need copyright in music?
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CrazyDave, 20 Oct 2007 @ 7:01am

Trade Mark?
To poster of #9, I think you are referring to trade marks.

Don't worry it is hard to wrap your head around where one term ends and the next picks up. Or even how to apply ether one. Heck even lawyers don't have a clue.

http://techdirt.com/articles/20071017/092927.shtml
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Uncle Deercamp, 20 Oct 2007 @ 7:05am

Finally
Finally I may exact revenge on all who stole my recipe for ice! Muu-waaaa haaa haaa haaa!
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mermaldad (profile), 20 Oct 2007 @ 7:37am

Isn't recipe copyright already covered?
If a copyrighted recipe whose "substantial literary expression" is put onto a website (such as someone copying a recipe from a book and posting it), isn't the remedy already pretty clear? The copyright holder sends a DMCA takedown notice and then, if necessary, lawyers sort things out.
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Rich Pearson, 20 Oct 2007 @ 8:20am

How we measured the traffic "loss"
I work at Attributor and helped work on this study - thanks for pointing out the lack of methodology - we should have definitely asked CNET to include it in the story. Here's how we came up with the traffic "loss" numbers. - We started with the monthly traffic numbers from Alexa to each of the sites. - We assigned a .0025% click rate to the pages that had copied the recipe but failed to give an attribution link to epicurious.com, rachraymag.com or allrecipes.com as the source of the article. (NB Attributor excluded the list of ingredients when determining a match.)
One of the key points of our study was the impact on search engine rankings; in fact, over 50% of the matches we found had a higher organic search engine rank than the recipe on epicurious.co, rachelray.com or allrecipes.com. Studies have shown that the top 3 organic rankings get >70% of all the clicks. Still, this was hard to estimate, so we did not include it in the traffic loss numbers.
We also had to make some assumptions to turn the traffic loss into revenue. We took the publicly available advertising rate cards and cut them by 50% to get to a dollar figure.
Definitely not an airtight methodology -- and one that we should be more transparent about -- but we feel that it accurately illustrates the scope of the problem. I hope that helps and thanks again for pointing out the methodology question
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Rich Pearson, 20 Oct 2007 @ 8:22am

Re: How we measured the traffic "loss"
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Rich Pearson, 20 Oct 2007 @ 8:23am

yikes - sorry about the bold (eom)
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Tarky7, 20 Oct 2007 @ 9:57am

Add one ingredient
and the recipe is different. It is common knowledge in the food biz that you cannot copyright a recipe.

Red Herring !
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mkam, 20 Oct 2007 @ 10:29am

Re: Ummm...Errr....
Amen. add, taste, adjust. The only way to cook.
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Mike (profile), 20 Oct 2007 @ 11:22am

Re: How we measured the traffic "loss"
I work at Attributor and helped work on this study - thanks for pointing out the lack of methodology - we should have definitely asked CNET to include it in the story. Here's how we came up with the traffic "loss" numbers.

Rich, thanks for explaining the methodology... but once you read through the methodology, once again it becomes clear that these are not *loss* numbers you are talking about, but revenue the company failed to capture through marketing. That's not a copyright problem, but a marketing one.
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Iron Chef, 20 Oct 2007 @ 12:09pm

Methodologies? Naah, it's societal.
I recently read a fantastic article at the Harvard Business Review some of the generational issues we're currently seeing.

In the article, a strong case is made that the current generation in power focuses on several factors, which can be evidenced by lawsuits like this, and things of importance covered in the media today:

The Current Generation, transitioning out, power has these values/characteristics (Listed as "The Unraveling Generation"):
Maximum Individualism
Contributed from a Nomad childhood
A guilt motivation
Weak family values
A world view that is overly complex
Eroded Institutions
Ideals need to be debated
Yields a "Do what feels right" attitude.

The me-me-me attitude...

The article makes a case that the next generation has the social motivator of "Honor". This is why I think the 20-year olds and teens of today are naturally gravitated toward communities with practical culture (Colbert Report), and have a urgent need to fix the outer world.

It's a very curious read, indeed...

http://www.hbsp.com/hbsp/hbr/articles/webArticle.jsp?articleID=CA_26020&rep=true
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Iron Chef, 20 Oct 2007 @ 1:29pm

Cited Works
The Next 20 Years: How Customer and Workforce Attitudes Will Evolve
The Harvard Business Review
JULY - AUGUST 2007 Edition Featured Article
http://www.hbsp.com/hbsp/hbr/articles/webArticle.jsp?articleID=CA_26020&rep=true

Syn opsis: an analysis of accuracy of theories presented in the Book "The Fourth Turning", published in 1997.

http://www.fourthturning.com

Dear Reader, Subscribe to HBR, and check out the comments in the Amazon link provided above.

From the HBR Article/Analysis:
"Over the entire course of a Fourth Turning the economy undergoes dramatic structural change. Industries linked to security, large-scale public works, and middle class consumption enjoy new opportunities. Industries linked to exotic niche markets face new challenges. The economy's long-term innovation cycle enters a new phase, characterized by centralized breadth rather than competitive depth. The multitude of high-risk start-ups initiated in a Third Turning give way to a smaller number of big-brand winners whose solutions will get locked into a new economic and social infrastructure. We can look back and see how this happened in history with canals and steam, railroads and steel, cars and television. Unruly innovations before a crisis became economic cornerstones after a crisis.

As the crisis approaches, the nation may face a decision: whether to leave national leadership in (Baby)Boomer hands or shift power to another generation. If the public turns to an older (Silent) leader, it will be following an example that has occurred only once in American history--ominously, before the Civil War. If the public turns to a younger (Gen X) leader, as the past shows, it will be very difficult for (Baby) Boomers ever to return to executive power; America's top institutions will be fully in Gen X hands while the crisis resolves.

As the rising hero generation, Millennials will provide a fulcrum for the nation's hopes and fears about the outcome of the crisis. With their youthful energy and team ethic, they will appear capable of glorious collective deeds and of potently executing any commands that may be issued. Whereas Boomer youths once screamed against duty and discipline, Boomer elders will demand and receive both from young Millennials, whose heroic actions and sacrifices will cement the national resolve. When a crisis-era president commits the country to sacrifice for a brighter future, Millennial voters--now well on their way to becoming a political juggernaut--will stand squarely behind their respected commander in chief, just as earlier generations of young adults stood squarely behind Lincoln and Roosevelt."

I've never read anything so inspiring before. Keep you eyes on the win, and checkout Ron Paul.

http://youtube.com/watch?v=FG2PUZoukfA
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Greybeard, 20 Oct 2007 @ 2:04pm

> add, taste, adjust. The only way to cook.

My lawyer will be contacting you to extract proper payment for stealing my copyrighted recipe. Be prepared to fork over $52,232 in licensing fees.
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Iron Chef, 20 Oct 2007 @ 2:11pm

Alton Brown, Maybe you've seen him on "Good Eats", often says--

"Before you know it, people will be asking you for recipes that don't exist. Don't be afraid to play around in the kitchen."
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Iron Chef, 20 Oct 2007 @ 2:45pm

Re: Sorry bad reccomendation as of late...
I just saw a few episodes from the 2007 Series. It Sucks. I'm half way tempted from removing it from my TiVo.

Anything other than the 2007 season is Good Eats.
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Larry Welner, 20 Oct 2007 @ 3:34pm

Re: Re: Sorry bad reccomendation as of late...
Anything other than the 2007 season is Good Eats.

I have to agree. I imagine Good Eats has a new production crew or something changed to "better appeal" to different demographics. You can see Alton's signature touch on "The Next Iron Chef" series.

He was in charge of writing, and most of the creative activities until Food Network moved him to focus on The Next Iron Chef Series...

Irony Ensues...
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Michael McMannus, 20 Oct 2007 @ 3:47pm

Only thing on Food Network I watch
As for The Food Network, I've moved on to "Dinner Impossible"...

Iron Chef is old, originally from Japan... FoodNetwork is trying to capitalize something way too old and dated...
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Iron Chef, 20 Oct 2007 @ 4:03pm

@Michael McMannus - Dinner Impossible - Two Thumbs
I agree!

I met Marc Summers during a shoot for Unwrapped on Food Network. My friend was working on the Post production. I am real interested in why "Marc Summers Productions" owns Dinner Impossible. I struggled with understanding why Shooters (the Post Company) was out of Pennsylvania, and Marc is a Denver Resident, when he was already working on Unwrapped, which was shot, and run through Post at "The most important building in the US for Media Production."

Anyways, I'm happy Marc found his groove, and am looking forward to the next series of Dinner Impossible. My only ask is that he puts it on iTunes so I can share it with people at work.

From Iron Chef, I learned that cooking isn't about following a process, but satisfying the needs of others, just like life in general.

In watching Iron Chef, I learned that the best cooks don't follow a fully prescribed recipe. In a recent "Good Eats" episode, Alton couldn't read a recipe for Tollhouse Cookies for fear of legal repructions. It was humorous.

Tivo Dinner Impossible, and check it out.

http://www.foodnetwork.com/food/show_ie/0,3151,FOOD_28496,00.html
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CrazyDave, 20 Oct 2007 @ 5:52pm

Here is one somple work around.
Go a head let any one copy right a recipe. I will just have to reword the procedure portion each one to make it my own recipe. So easy it's a joke.

The closest thing I can think on how to lock down your recipe is to use a patent. But even those laws don't really describe type of control discussed in this article. Plus even if it did EVERY recipe out there would be riddled with prior art.
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Rich Pearson, 20 Oct 2007 @ 10:33pm

copyright vs marketing . . .
Mike - I agree that this is a marketing issue. We aim to give visibility to the original content owners and let them decide if/how to act on any copying. Increasingly, relevant links are gold, so we're finding more interest from the marketing side than other functions.

Rich
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ipanema, 20 Oct 2007 @ 11:26pm

Re: Ummm...Errr....
you got it! it's learned by heart. :)
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Anonymous Coward, 20 Oct 2007 @ 11:30pm

IRAA = International Recipes Association of America
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Mike (profile), 21 Oct 2007 @ 12:30pm

Re: copyright vs marketing . . .
I agree that this is a marketing issue. We aim to give visibility to the original content owners and let them decide if/how to act on any copying. Increasingly, relevant links are gold, so we're finding more interest from the marketing side than other functions.

So, why position your research as being about "losses"?
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MBC, 21 Oct 2007 @ 1:08pm

Copyright law
You can copyright "substantial literary expression in the form of an explanation or directions."
But the explanation or directions themselves are not protectible, only the 'substantial literary expression' is.

"In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." 17 U.S.C. 102(b).

You can separate the directions themselves from the directions (i.e., the "procedure") without violating a copyright in the literary expression.

If the literary expression cannot be separated from the directions, then you can't get a copyright on it in the first place.
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Anonymous Coward, 21 Oct 2007 @ 1:09pm

RIAA is making a branch called the FIAA and yes, you will be sued if you cook your kids a dinner, and your kids WILL be taking the stand unless you settle.

and dont even try and hold a wedding.
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Rich Pearson, 21 Oct 2007 @ 1:27pm

lost opportunity vs losses
While it's definitely a lost opportunity, I agree that "losses" is a stretch.
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Ajay, 21 Oct 2007 @ 6:46pm

Copyright Goons
I know a family with two kids who started cooking and making crafts when they were seven and eight years old. One watches the cooking shows obsessively, figures out a way to adapt cookie and cake recipes, and she sells the goodies at bazaars and holiday sales. Her sister takes apart other people's holiday crafts and figures out a way to make them better, cheaper and faster. Technically, she's been a trademark violator since the age of seven.

These kids have always paid for their own sports uniforms and equipment, summer camp, music lessons, because their parents can't afford to pay for these things. The danger in the overzealousness of the copyright goons is that innovation is stifled. Can you imagine serving a cease-and-desist order on two little girls for borrowing your damned chocolate chip cookie recipe?
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MAtt, 21 Oct 2007 @ 7:54pm

oh yeah
I just patented posting comments on the Internet and copyrighted a bunch of common phrases. You all owe me a lot money.
Seriously, when is this crap going to stop? Who knew lawyers would find the next fad for squeezing money out of the Internet? I just hope they won't kill it in the process.
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Anonymous Coward, 21 Oct 2007 @ 10:00pm

Re: No, that would be a patent.
How about "mixing a flavored powder into water ... and 20% of profits to whatever greedy dude signs this piece of crap."? Think that would make it?
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Anonymous Coward, 22 Oct 2007 @ 7:58am

Oh great...
Then I have a question. Give the way the NFL has gotten about claiming control over the term Super Bowl if I come up with a chili recipe called "Super Bowl Chili" does this mean that not only do I have to worry about the possibility of it being someone else's recipe but I also might get sued by the NFL for claining since the name has Super Bowl in it they have control over it?
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nipseyrussell, 22 Oct 2007 @ 9:06am

i hate epicurious (which otherwise has good content) because they have some weird thing where whenever you search and/or click on another page, it somehow launches a pop up telling you to activate cookies (cookies blocked in firefox). Uh, no thank, dude, i'm good. Anyone know how to get that pop-up to stop popping????
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Iron Chef, 22 Oct 2007 @ 6:36pm

Wikinomics
What the lawyers don't understand is that the best cooks don't use recipes. Watch and learn from the best-- any show on Food Network with Bobby Flay, Alton Brown, or Robert Irvine.

You'll soon learn that cooking is about knowing basic techniques for each ethnicity, and adapting them... Great cooks ADAPT to create something slightly different than what the end consumer expects.

I really enjoyed Boy Meets Grill, and I hope they don't cancel Throwdown. While it was entertaining seeing him loose time and time again, I still learned a LOT from Bobby and his unique flair. His recipes weren't traditional, but I've come to enjoy them at home!

I know how to make the world's best BBQ sauce and ribs thanks to Bobby... Can you tell that I love Food Network? And yes, I gave up on Epicurious and Recipies.com a few years ago.

It's real sad to see FoodNetwork go commercial for the 2007 season-- It's like the shows should be on MTV. Yeech. Learn from Discovery and consider a Web 2.0 implementation similar to what MythBusters did-- Setup a website with a forum for each show. I imagine this methodology would be more successful than changing the content to appeal to a different demographic and alienating your previous audience. Embrace a feedback model.

I think ScrippsHoward owns Food Network, I don't remember for sure, but someone at a C or ED, or D level over there needs to read Don Tapscott's Wikinomics.

Sorry for the ranting. It was my primary source for Good Eats, and still like the network, but find myself watching National Geographic, CNBC, and Discovery more these days.

Jim Cramer is hillarious!
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T.Edith Wilkey, 14 Nov 2007 @ 10:33am

Program/receipts
Paula Deen is great. I would like to have the receipt of the pumpkin,pecan pie.
I enjoy your program you are a very talented young lady.
Thanks for all your encouragement and help.
Have a great day.
Edith
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