A client of mine recently approached me with a question: “How protected are recipes?”
My initial instinct was that recipes, like other creative works, satisfy the main criteria of copyright: originality, fixation and territorial connection.
The third is easy to satisfy. But what about the other two? My thinking was that a recipe requires some intellectual effort, generally a recipe created from scratch (or derived from another) has an element of originality at minimum, and once written down or published, it is in a fixed or more or less permanent form.
I didn’t trust my instincts. Instead, I did a quick Google search to see what came up. Turns out that, in the United States, copyright can not be attributed to simple lists of ingredients. In fact, the U.S. Copyright Office website has a section on this, stating, “Copyright law does not protect recipes that are mere listings of ingredients. Nor does it protect other mere listings of ingredients such as those found in formulas, compounds, or prescriptions.”
OK. What about Canada?
I was unable to find anything speaking to lists specifically in Canadian copyright law. At first, I thought the doctrine of merger would apply. I mean, you could argue that the idea of the chocolate cake and the expression of the chocolate cake in the form of ingredients are merged. However, this misses the point of merger – the idea is the intellectual notion of the chocolate cake – the expression is a cake, not the recipe for the cake. Fail. (For more on copyright in the actual cake read this).
Nevertheless, it is fairly clear that methods and factual information are not copyrightable. Is a list of ingredients a method or a set of facts? I’d argue that although a list of ingredients are not a set of facts (i.e. 1 tsp. of sugar is, arguably, not a “fact”). However, the combination of those ingredients might be construed as a method. And since methods are not copyrightable in Canada, nor under the WIPO Copyright Treaty,
“OK,” I thought. “It’s probably safe to assume that the ingredients of a recipe themselves are not copyrightable – even if it takes significant amounts of intellectual effort and originality to come up with new and innovative lists of ingredients for all sorts of culinary creations - but what about narrative surrounding recipes?”
On one hand, the instructions are a method – a simple process which one would follow to end up with the desired outcome from the list of ingredients. On the other hand, once written down or recorded, the directions to cook a recipe are a narrative – a literary work – of the recipe. Depending on the level of creativity utilized, the recipe can even take on the form of a story.
The Final Product
If the instructions are recorded, published or not, and since literary works are protected as long as they satisfy the requirements for copyright, I would argue that the set of instructions corresponding to the ingredients, at minimum, is copyrightable. Of course, once the ingredients are fixed in some form accompanying the directions to which such ingredients would apply, it is arguable that they too form a part of that copyrightable work.
***This article is not intended to serve as legal advice and is for information purposes only. Please contact a lawyer if you have further legal questions in regards to the above subject matter***