This Thanksgiving, we’re diving into the world of intellectual property and recipes. Can chefs own their culinary creations? Can a recipe be copyrighted? From Turducken trademarks to creative cookbooks, we’re discussing the legal side of your favorite holiday dishes. Tune in to The Briefing’s milestone 200th episode with Scott Hervey and Tara Sattler for all the tasty legal details.

Watch this episode on the Weintraub YouTube channel here.

Scott:

There are numerous ways to cook a turkey and thousands and thousands of recipes for turkey. Some are old fashioned like roasting with stuffing, some are newer like Tandoori Style, and some, well, I still just don’t get like the turducken. But who exactly owns all of these turkey recipes, not to mention all the recipes for stuffing and cranberry sauce.

I’m Scott Hervey, a partner with the law firm of Weintraub Tobin. And today I am joined by my partner, Tara Sattler. We’re going to talk about IP protection for recipes on this special Thanksgiving episode of the Briefing.

Tara, welcome back to the Briefing. Happy Thanksgiving to you.

Tara:

Thanks, Scott. Thanks for having me. And this is an exciting topic to dig into.

Scott:

Yes, I see we both have our like, fall themed backgrounds up, despite the fact that it’s 71 degrees here today in Los Angeles.

Tara:

Well, not for much longer.

Scott:

Yeah. Well, so today we’re diving into the fascinating and often murky world of intellectual property protection for recipe recipes. So can a chef actually own their culinary creation? And what about their cookbooks? And what happens when recipes are copied and shared?

Tara:

All great questions. So let’s start with the basics. Protection of a recipe. So some famous chef creates a dish that is huge and a really big hit. But legally, how much protection does a recipe actually get?

Scott:

Well, that’s a great question. So U.S. copyright law protects any original work of authorship that’s fixed in a tangible medium of expression. So one would think that an original recipe that a chef creates and writes down and may include in the cookbook or online is protected by copyright. However, that is not necessarily the case. In the United States, recipes generally don’t receive strong intellectual property protection. Copyright law does not cover lists of ingredients or basic instructions on how to use setting ingredients. In 1996, the SEC, the Seventh Circuit case of Publications International Limited versus Meredith Corporation involved claims of copyright infringement of a number of recipes. And in that case, the court said that recipes that were involved in that case comprised merely of the list of required ingredients and the directions for combining those ingredients to achieve the final product. The recipes contained no expressive elaboration upon either the functional components or how to create the end result. And as a result, the court found the recipes to be not protectable. Now, this is as opposed to recipes that might spice up functional derivatives by weaving in creative narrative.

Tara:

But digging into what the court said, if a recipe included expressive elaboration, then that may be protectable. This probably explains why some cookbooks and food bloggers weave personal stories into Their recipes.

Scott:

That is true, and probably the case. But regardless how creatively a cookbook may lay out a recipe filled with stories from the chef’s childhood pictures, et cetera, the ingredients and the process for making the dish itself are not protectable.

Tara:

Okay, so this probably accounts for the thousands of Turducken recipes that we can find on the Internet.

Scott:

It probably does. But speaking of Turducken, let’s talk about what can be protected. And that’s a trademark. So, Tara, did you know that Turducken is a registered trademark?

Tara:

I did not know that.

Scott:

Yes, it is. So that mark was registered in 1986, and it covers the combination of turkey, duck, and chicken entree for consumption on or off the premises. And it was originally registered by Chef Paul Prudhomme and his his company entity. Now, I couldn’t find any evidence of the chef suing over the use of Turducken, but that trademark is still registered. It’s on the principal register. And it has prevented other potential registrants from registering similar trademarks covering similar food items.

Tara:

So if a chef comes up with a unique and distinctive name for a dish, that can be protected as a trademark. And the chef can, if he or she wants to prevent others from using that mark in a competitive manner.

Scott:

That’s true. Think of the Big Mac and how much strength that trademark has. However, if a trademark begins to be used by the public at large to describe the food product like Turducken, I think that mark runs the risk of becoming generic.

Tara:

But just because the chef owns a trademark doesn’t mean that he or she can stop others from making the dish. Trademarks are more about branding. A chef can trademark the name of a dish, like Traducan or Big Mac or the Bloomin Onion, as long as it’s distinctive and tied to their business. But trademarking won’t stop someone from recreating the dish and just using a different name.

Scott:

That’s right, Tara. Since we’re talking about what can be protected now, let’s talk about cookbooks. A cookbook can be protectable as a compilation if the selection, arrangement, and the coordination of the included recipes is creative. Also, everything other than the list of ingredients and the instructions on how to create the dish are protectable. So all the photographs are protectable under copyright law, as well as all of the other text content.

Tara:

So with the lack of protection around recipes themselves, it is a bit odd that chefs so readily share recipes. However, I can see that by doing so, it may raise the profile of.

Scott:

The chef that’s true. I mean, it’s also a great way to sell cookbooks. Right. And I know from my own experience, while I might go to a website and print out a specific recipe from a specific chef to try if it’s a chef that I know and if it’s a recipe I like, and even if it isn’t a chef that I know and it turns out to be a recipe that I love, I’m more likely to seek out more of those recipes from that chef and buy a cookbook or two from that chef.

Tara:

Yeah, I think that’s right. And I also like to buy cookbooks that have a particular theme, so from notable restaurants or acclaimed restaurants around Los Angeles. And that is all very chef-driven as well.

Scott:

Right. And I think, I don’t know, chefs have kind of become the new celebrity, so to speak. So you may buy a cookbook or two that actually might sit on your coffee table and you may open it maybe once or twice in the entire time that you own it, but you might not even use it for any of the recipes, lest you get the book itself messy. At least you would if you cook the way I cook with stuff all over the place.

Tara:

Yeah. Cookbooks as a form of art.

Scott:

Yeah. So I guess we can close out this Thanksgiving episode by being thankful that copyright law allows for the sharing of recipes, because where would we be if it didn’t? And that we’re lucky enough to have a culture where chefs share their recipes, including Paul Prudhomme’s famous Cajun recipe, a turducken, so we can try making them at home. So with that, Happy Thanksgiving, Tara.

Tara:

Happy Thanksgiving, Scott. And good luck with cooking your turducken.

Scott:

Well, yes, my I won’t be cooking at Turducken because, as you know, we’re pescatarian. How very California of us. So we’ll find some other thing to shove inside of a fish. So Happy Thanksgiving, everybody.

Tara:

Happy Thanksgiving.

Scott:

Well, that’s all for today’s Thanksgiving episode of the Briefing. Thanks to Tara for joining me today and thank you, the listener, for viewing or tuning in. We hope you found this episode informative and enjoyable, and if you did, please remember to subscribe, leave us a review and share this episode with your friends and colleagues. And if you have any questions about the topics we covered today, please leave us a comment.