How to Write Recipes That Are Harder to Steal

Mar 182014
 

Recipe-RobberI’ve written many times about how individual  recipes can’t be copyrighted here in the US. But did you realize that you can defend a copyright if parts of your recipe contain “substantial literary expression?”

What exactly is that, and why should you bother?

“Substantial literary expression” establishes the information in a recipe as yours. That could be just as important as copyright, when it comes to theft.

Let me explain. US copyright law defines substantial literary expression as:

“a description, explanation, or illustration, for example—that accompanies a recipe or formula or to a combination of recipes, as in a cookbook.”

The point is to write information easily identified as belonging to you, based on what you say in the headnote (introduction) or method (instructions). Here’s another definition from the findings of a recipe-based lawsuit between Meredith Corp. and Publications International, Ltd.:

“There are cookbooks in which the authors lace their directions for producing dishes with musings about the spiritual nature of cooking or reminiscences they associate with the wafting odors of certain dishes in various stages of preparation. Cooking experts may include in a recipe suggestions for presentation, advice on wines to go with the meal, or hints on place settings and appropriate music. In other cases, recipes may be accompanied by tales of their historical or ethnic origin.”

This is not a complete list of what constitutes “substantial literary expression.” The point is to make the recipe your own. You could also include stories about your family and friends, specific serving suggestions, an explanation of a technique, or a million other things that customize a recipe as yours.So even if the thief stripped out your headnote, if you added “substantial literary expression” to the method, your recipe could be copyrightable.

As to the question of whether you should bother adding these layers, the answer is yes. Not only does adding this kind of information make the recipe identifiable, it adds reader interest.

If you’re a blogger, though, do you think people will still steal your recipes if you add these details? Elise Bauer experienced just this situation when someone scraped her content into an e-book. Does the idea that your recipes might be copyrightable give you hope that people will stop taking them?

(Photo courtesy of FreeDigitalPhotos.net)

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  50 Responses to “How to Write Recipes That Are Harder to Steal”

  1. I believe the copyright laws here in Australia have similar sentiments, Dianne. Recipes written in a more personal way may take a little more time, but are much more engaging, making it more likely that your reader will want to look at more of your work.

  2. I first started writing my recipes in a purposefully distinctive fashion (with little jokes and what nots thrown in), just to see if anyone was actually paying attention and reading the recipe. Later, when I discovered it was a good way to prevent recipe theft, I amped it up and the recipe became an extension of the story, more or less inseparable from the rest of the post.

    And no one has ever (to my knowledge) stolen a recipe from me. Not, of course, that they’d want to. I am no Elise Bauer.

    • You are a master at this game! Readers, if you have not seen an official Procopio recipe, here is an example, from a method:

      2. Add brown water. If you are staying in Sochi, you may simply turn on your hotel bathroom faucet to obtain it. If you are not so fortunate, you may make your own by adding any of the following to your own tap water, if they are not already present: cadmium, hexavalent chromium, arsenic, plutonium, or fecal matter.

  3. Sadly I think people will always steal blog content.. But some of the personalised content you are talking about makes it easier to track this stolen content too… A google search on text from your recipe should bring up your original work AND any closely matching stolen content!

    • Yes, probably true. But the more individual the text is, perhaps the less likely they will be to take it. And yes, much easier to put a sentence into the search box and see if anything comes up.

  4. Hmm… interesting to think about! For some reason I was always under the impression that recipes had to be as succinct as possible while still maintaining clarity, and that any language not deemed essential to successfully executing the recipe should be cut. Maybe that isn’t so?

    • That might be true for newspapers and magazines, and sometimes even for cookbooks if they are designed to fit recipes to a page, but that is certainly not true for your own blog. You can do whatever you want.

  5. I have added flourishes at time, and phrases I know I use. I think I have old people stir clock wise, and given a reason for it. I am unaware it makes a difference. It definitely makes your recipes harder to steal.

    • Hi Stephanie, you have recipes targeted to seniors? Interesting. I like the clockwise motion thing (although as you say, younger people may not know what that is (!), and maybe you can think about more.

  6. Agreed with Amanda, above, that the laws are similar here in Australia.

    I am struggling with this at the moment as I have been notified of significant plagiarism of some of my recipes. My posts are generally structured as follows: title, an anecdote about the dish, some preparation notes and musings on eating, followed by the recipe.

    I use a plugin that allows readers to easily print and file my recipes. To keep things simple for them, I use straightforward directions and leave the storytelling for the post above. I feel that if I were to embellish the actual recipe (in the plugin), the directions would get lost and people would have to sift through conversation to extract what they should be doing on the stove.

    So, if the storytelling element were plagiarized, it would be easier to pursue based on the “substantial literary expression” argument. But since the recipes are pretty straightforward, as a courtesy to anyone who wants to try them, I don’t feel protected at all.

    Even if I did embellish the recipe directions, I don’t think it would stop anyone from changing “mix the ingredients…” to “whir the ingredients…” and calling it their own, with little way to pursue them even if they are obviously copying.

    • Yes, this is what I wondered about at the end of this post. I’m not sure these small changes would make any difference if people are already stealing your recipes. But you could make the anecdote more personal. That would be easy. At least it would be easier to find out who’s copying you, by putting these phrases in the search box.

      What I’m getting from your comment is that you have been making your recipes somewhat generic. Perhaps it’s time to rethink that strategy.

      • Thanks, Dianne. The anecdotes are always very personal, which is a good start. You’re right that my recipes themselves are written in a generic style, so that they are easy to understand – I wanted to avoid the instructions in the plugin being cluttered by asides.

        However! I’m taking your suggestions on board and will aim to be more creative in my recipe writing.

  7. Hi Dianne,
    Lovely to see you in Chicago. This post brings to mind a question. A blogger once posted a crostata recipe from one of my books (with permission and credit). Some months later, the same blogger posted a different crostata recipe, but used exactly the same language in the instructions for making and rolling out the dough for the crust, this time without credit. How would you recommend handling this type of situation?

    • Hey Domenica! It was great to see you.

      Oh boy. This is a good one, and frustrating. Inform her that she has to rewrite your instructions. She can’t just cut and paste them. And you will check back to make sure she does it. (I know I am a bit delusional for thinking that if you tell someone something, therefore they will do it, but you have nothing to lose.)

  8. Dianne, thanks for an excellent explanation. I’ve never been a fan of blogs that just slap recipes on their sites, especially when it’s so obviously someone else’s. Now that I’m a blogger myself, I’m more aware of this. Since I usually cook out of my fridge and pantry, explaining the inspiration (we’re hungry) or thought (the kale at the store was beautiful) behind the recipe becomes part of the recipe’s story. Recipes with interesting, personal head notes are so much more appealing than just a list of one recipe after another. Protection is a by-product.

    • Yes, I agree, I like a personal headnote. You might think about going further with the method and adding some more personal language there as well. Try it and see if you like it.

  9. This is very good to know. Many of my recipes are from my past and are associated with specific memories. Including that in the body of the recipe would be a great idea. :)

  10. I love this post because I always enjoy when the text of a recipe conveys the author’s individual personality. (Nigella Lawson and Jamie Oliver come to mind.) I try to follow suit, but have sometimes worried that I should make my instructions more generic. So it’s nice to have permission to make them a bit more personal. Thanks, Dianne!

  11. This is a great way to include one’s personality in the recipe. It’s like adding the spice and rhythm. Thanks, Dianne.

  12. It is sad that we even have to have this conversation. Why do people have such a hard time giving credit where credit is due? After all, in the world of food and cooking we have all had teachers and inspiration. And that so many people today feel that it is fine to steal someone else’s work just makes me shake my head. Really? Can’t you just come up with your own recipe? And if not, provide credit as to who inspired you. It shows strength, not weakness.

    • Sally, you are so right. Sigh. To me, giving credit gives credibility to that “stolen” recipe and the person who snitched it. I wish people understood that simple truth. With so much going on with the internet+ these days, perhaps it’s time to start “calling out” folks who post recipes that are not theirs. Though a negative thing to do, it might wake up some of them.

  13. the only time I consider a recipe stolen is before publication, say during testing. yes, I have had testers steal recipes and use them for baking contests and in books without telling me (I had one tester tell me the recipe wasnt worth making and it showed up in her next book!)…and not even sending me a few bucks of the prize money! once a recipe is published, it is fair game. there is no way to control its life. it is meant to inspire and nourish and be changed with respect to time, place and person. after all, this is food. it is meant to be created and consumed, disappear and made again with a great generous spirit. the greatest recipes will always be stolen. Thank goodness julia and marcella and pierre franey and jacques pepin and bert greene and diana kennedy and barbara kafta and joyce goldstein and jeremiah tower and maida heatter were/are generous with their recipes!

    I take it a complement that a recipe I have created appeals to other cooks. it keeps it alive. recipes are meant to be shared and evolve. in teh bigger picture, it is part of passing along culture. now it is called stealing. sort of dulls the fun of collecting recipes and experimenting with them. within the professional food community, everyone knows the diplomatic rules to credit a recipe. the bloggers are not professional cookbook authors so they do not know. as it is going, every recipe will eventually be copyrighted and no one will be able to write a recipe again…the internet giveth and the internet taketh away…

  14. I must agree with Ebeth. Everywhere you go these days there is a “Share” button. In 2014 we have a culture of sharing and that’s what the audience expects. Further it is my experience that the people that are successful these days are “generous” as Ebeth puts it with their knowledge and give it readily, openly and usually for free.

    Dianne you ask the question is it worth it to write recipes in such as way as they “might” be protect-able. To protect intellectual property you must be prepared to defend it. As someone that has a patent that is being infringed upon by at least one company I learned painfully well that it is no deterrent unless I’m prepared to spend hundreds of thousands, possibly millions in legal fees to defend the patent. And that is for something that makes millions in revenue. In the case of a recipe the legal fees to defend a recipe that MIGHT be copyrightable would amount to far more than the recipe(s) or even a whole book is worth. Realistically who has the money to do that. So I would submit it is no deterrent.

    Of course there is a simpler approach by submitting a DMCA take down if the content is on the net somewhere. But that has issues especially when it comes to such a gray area as recipes. When you submit a DMCA take down the content has to be copyrightable and that would only include a photo and a headnote. To your point Dianne you are suggesting that maybe you could make the instructions substantial literary content. If the party that had content taken off fought back and it was ruled that it wasn’t copyrightable, then they would have a case for damages against the party initiating the take down. So this could backfire on the person doing the takedown. This is prevent harassing take downs that have no merit. Considering all this, is it really worth it?

    In my view with every recipe known to man on net somewhere and most of the good ones including those from the big cookbooks on All Recipes, it is not worth the time. I’d submit that the time be better spent on photography, video, interacting directly in a generous way with your audience etc. That is what will differentiate you from the zillions of websites and recipe databases out there, not worrying about fighting a losing battle of trying to protect recipes. Because that can backfire on you too if your audience gets wind of the fact you don’t like to share!

    • What a thoughtful answer Rick. You make many good points. Thank you so much.

    • Brilliant response – your last paragraph resonated with me in particular. You are absolutely right that one must differentiate themselves by connecting, building community, and being oneself, instead of fretting over who “stole” a recipe that is probably already out there.

      Cheers.

  15. How does someone like Ree Drummond aka The Pioneer Woman build an empire on lifted church cookbook recipes that, for the most part, she’s failed to attribute? More importantly, why does the food blogging community countenance this, frequently turning a blind eye and oftentimes defending her? Her fans tweet non-stop about her lasagna, her chicken spaghetti or some other 1960 retro recipe that originally appeared in Bartlesville, OK cookbooks. One website, The Marlboro Woman, routinely publishes photos of the original recipes from the actual church cookbook for comparison purposes. Seems this is nothing short of plagiarism.

    • To this issue valtrex manufacturer people around the.

      Well, I don’t go on that website so I can’t comment. I’m not a fan of “troll” websites. Ree writes her own headnote and method, so if there is a question it would be about the ingredients list, which is not copyrightable.

    • Good point Dianne. Another point is that Ree’s success is about far more than her recipes. The fact that she does video, social media, guest appearances etc. are the primary reasons for her success. It’s because of this that she sold more cookbooks last year than anyone, not just because of her recipes. There seems to be this thinking out there that if we can just stop copying of recipes than we can go back to 1988 when it could be just about the recipe. The reality is that in 2014 to be successful you have to do much more than publishing good recipes. It makes me wonder if this whole recipe copying thing is simply sour grapes because some individuals have figured out how to be successful in today’s environment. Because if it was simply about the copying of recipes I would be hearing people bad mouthing the major companies that have huge databases of recipes, not just individuals. When I hear that I will know that’s what it is really about.

      • Definitely, Rick. It’s not enough to just post content if you want to be a star.

        Big companies have big pockets to sue, so we have to be careful about what we say in print. Actually I have a guest post coming on that very topic.

        • Dianne I guess that’s the problem I’m having. Individuals are being bullied on this issue without merit because they don’t have deep enough pockets to sue back. It’s not right. But since the big companies are having the most impact it would still appear to me that copying isn’t really the issue. The individual’s success is.

  16. Does this actually make recipes harder to steal, or just easier to claim as copyright infringement after the fact? Many infringers have no issue taking photos (where much clearer law exists), so I’m still trying to understand why a more verbose recipe format would give an infringer pause. Would writing recipes in this way aid in DMCA takedown compliance, or would the issue of substantial literary expression only become relevant at the point of a suit?

    And since the law as you have quoted above defines literary expression as that “that accompanies a recipe or formula”… can such expression be placed before a recipe (as in a head note or a blog post), or does it have to be contained within the method section itself in order for the recipe text to count as copyrightable? What happens if one writes quite a lengthy head note in front of a recipe, and an infringer then only snagged the ingredients/method section, leaving the rest alone? Would that sort of copying then be considered merely an “excerpt” and thus fall under fair use instead? Just trying to wrap my head around how this all works.

    • Whoa Jenn, these are a lot of questions. Let’s take them one at a time, and keep in mind that I am not an expert on this subject:
      1. Easier to claim copyright infringement. Maybe less attractive to thieves who want straight recipes and can’t just cut and paste.
      2. Easier to find them and easier to prove it is your recipe. But would that make it easier to take it down? Depends on who took it.
      3. I would put it in the method.People can always strip out the headnote.
      4. Ingredients are not copyrightable.
      5. Re fair use, that would mean that someone could take a bit of a recipe. The entire ingredients list or the entire method strikes me as more than fair use.

  17. I generally add some comments and asides to my recipes, usually in the headnote and method and sometimes even in the list of ingredients. I don’t know if this has protected me from theft; if not, the perpetrator has been stealthy and so far gone undetected by me.

    • Good for you. Seriously, it might help. Cut and paste a line of text from your method into the search box and see if you find a fit.

  18. Thanks for the information….makes me rethink how I write and any recipes I post on the blog! A million thanks!

  19. […] oddly right! This week I was given a little advice from a fellow Canberra blogger who shared an article about copyright and recipes. Basically, if you want to demonstrate the work is yours make the recipe your own with your own […]

  20. if u are that paranoid about ur recipes only publish in ur cookbook so they must buy it????

    • Interesting point. People can still type them into their own books or blog posts, but it will be harder. Plus, if you want publicity, the publisher will give away some of your recipes to media and bloggers.

  21. Diane,

    I’ve had several recipes slightly re-worded, with an ingredient added and seen them published in a major food magazine with ZERO credit. They used the same cooking appliance (pressure cooker), ingredients (white beans with herbs), special method to quickly re-hydrate beans (quick-soak method), and serving suggestion (warm bean salad). It was so obvious that one of my readers let me know about it. Sneaky thieves, and professional writers on a deadline with no shame, are everywhere.

    HOWEVER, it is pretty easy to get stuff taken down from the web and if a nice e-mail to the person won’t work you can contact their ISP and have them deal with their client to take down the page. Here’s how:

    You can file a DMCA request which is sent to the website’s ISP not the huffy blogger (but it’s nice if you cc’ them on the email so they can wisen up that you’re taking action):
    http://www.sfwa.org/2013/03/the-dmca-takedown-notice-demystified/

    Another way to do this is to ask Google to stop showing the infringing content in their search results, too:
    https://support.google.com/legal/troubleshooter/1114905?hl=en

    I find a personal e-mail usually works. But in the case of Facebook or Yahoo groups who purposely copy a whole recipe and remove any trace of the source to put in their archives… a DMCA request can do wonders.

    I wish I had Rick’s zen-like mindset but since my presence is primarily online (coming on paper in September) having someone’s copy of my recipes trump my originals in search results can cost me in visitors AND ad revenue!

    Ciao,

    L

    • Thanks for these resources, Laura. Your experience sounds very frustrating. Did you contact the food magazine to let them know it was your recipe? The editors might want to know if a writer they’re using is ripping off bloggers.

      You must be very excited about your upcoming book. Congratulations! Seems like so long ago when we emailed about it.

  22. This is really interesting. I’ve seen many recipes that Elise posts AFTER I’ve seen them in someone else’s cookbook (which is the reason why I stopped reading her blog years ago). The last time this happened I commented on her blog that the recipe, which was a chicken salad with roasted red peppers, red onions, sliced almonds… had already been published in a Giada cookbook. My comment was deleted. I just went to her website and she is still presenting all of the recipes as her own, even though many have already been published elsewhere. Just because the order of the ingredients is changed or there is an addition or subtraction of an item does not make it an original recipe. She should also give credit where credit is due by including “Adapted from…”.

  23. There is a “blog” that has been stealing my entire blog posts, moments after I post them. And how do I know? Because, after republishing the entire post, word for word, with all the photos, text and recipe, they link back to me—and I get a “linkback” notification!

    I have tried contacting this person (who seems more like a robot) on Twitter and on his/her blog contact form, without response. But google sees it as duplicate content, and can punish my site accordingly. Still, even with the law on my side, there’s essentially nothing I can do that I’m willing to take the time and effort to do. So I tell myself what I used to tell clients when I practiced law: there’s a world of difference between the legal rights you have and the ones you’re willing to pay to protect.

    There is an argument to be made that no one comes up with truly original recipes any more (although with gluten free recipe development, there really is something novel about it, as it’s mostly virgin territory). But it’s truly shameful to simply lift entire blog posts.

    We need a sheriff in town!

    Nicole

    • Oh that is an awful story, Nicole. Perhaps you can find out who the host is and contact that company? It’s better than nothing.

      Re “no original recipes,” this post is about original writing, not the recipe itself. But your doing so would not have saved you, in this instance.

  24. Hi Dianne… I’ve just hunted down this post of yours again this morning after having seen a couple of my recipes that have been re-blogged by a younger blogger. In her words she says ‘I stole this recipe from Liz’ and then posted a barely visible hyperlink to my name (Liz). There was no mention of the name of my web site and I felt that she really ought to give me more credit.

    I find your article here most helpful… and also thought I’d share the link to a page on the Australian Copyright Council website:

    ‘Key points
    • The written form of a recipe is likely to be protected by copyright once it is recorded in some way, for example, written down or recorded onto a tape.
    • Copyright does not protect information about the ingredients or methods of making a type of food or drink. You will not need permission to follow a recipe.
    • You will not infringe copyright if you watch someone prepare a dish and then you write down the ingredients and method in your own words.

    Copyright protection
    How does copyright affect recipes?
    Copyright protects a range of materials, including works comprising words—such as written recipes, setting out a description of the type and amount of ingredients and the method for making the type of food. Other things protected by copyright include “artistic works” (such as drawings and photographs), music and films.’

    And ‘For work to be protected by copyright, it must be “original”. In this context, an “original” work need not be novel or unique, it simply must result from the exercise of skill or labour on the part of its author. A work that is merely copied from an earlier work is not protected. Copyright works are only protected by copyright once they are put into material form (for example, by being written down, saved as a digital file, or recorded in audio or audiovisual form).

    Therefore, if you write your own description of how to make a soufflé, this “literary work” is protected by copyright, even though you did not invent the combination and proportion of ingredients and the method is not new’.

    I hope this is useful to your readers.

    I have asked the blogger to respect my literary work and provide a reasonable acknowledgement of my original literary work. I am crossing my fingers that my polite email will work.

    Thanks again!

    • Oh my gosh that is so infuriating! I think you are being so very polite. Maybe that’s an Australian thing.

      Your Australian rules about copyright are similar to ours in the US. Thanks for adding to the discussion.

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