Recipe Book Held Uncopyrightable Due to Insufficient Proof of Creative Content or Arrangement
Longstanding interpretation of the Copyright Act establishes that recipes are not copyrightable. The reasoning for this determination is twofold: cooking ingredients are considered statements of fact, and instructions for food preparation are deemed merely functional directions. A recent appellate court involving a plaintiff with the Gershwin-inspired name of Tomaydo-Tomahhdo, LLC goes even further, holding that a book of recipes at the center of a dispute between former restaurant co-owners also was not copyrightable. See Tomaydo-Tomahhdo, LLC, v. Vozary (No. 15-3179) (6th Circuit Oct. 20, 2015).
The 6th Circuit decision acknowledges that original narrative content contained within a recipe book could potentially be copyrightable. In addition, a recipe book as a whole could constitute a protectable compilation based on creative aspects in the selection and arrangement of the recipes included in the book. The plaintiffs in Tomaydo-Tomahhdo fell short on both theories of copyright protection. The book at issue did not contain protectable narrative content and the plaintiffs also failed to articulate anything original and creative about their arrangement and selection of recipes. The conclusion? No copyright, and therefore no infringement. While the Court did not expressly say so, the bottom line of the decision, in the immortal words of George and Ira Gershwin, was “Let’s Call the Whole Thing Off.”
The lesson here is that if copyright protection is desired for a recipe or cookbook, authors need to wax eloquent about their culinary creations or inspirations. For example, an author’s reminiscence about the sublime experience of eating tartufo for the first time in the Piazza Navona in Rome would likely qualify as a copyrightable portion of an Italian food cookbook. Alternatively, or in addition, copyright protection could attach to the creative manner in which recipes are arranged in a cookbook. The presentation of recipes in accordance with a chosen list of holidays or social occasions might pass muster. In contrast, ordering recipes by meals of the day, from breakfast to dinner, might be considered the culinary equivalent of presenting a telephone directory in alphabetical order – in either case (or eyther or nyther), the compilation would not be sufficiently original to qualify for copyright protection.