Copyright attorney Lesley Ellen Harris.
When Copyright Educator and Author Lesley Ellen Harris asked if I had any copyright questions for a blog post, I put the word out on social media. Food writers asked several questions. Lesley has generously answered them — in plain English.
Here are 8 answers to copyright questions about recipes and books:
1. When someone re-publishes my recipes word for word (headnote, instructions, variations, etc.) without attribution, I usually write to them and try to work it out. But if that goes nowhere, is there a legal avenue?
Copyright law doesn’t protect the list of ingredients in a recipe. However, the language used to describe the recipe’s instructions and the headnote are protected by copyright. Attribution may be a copyright issue but it’s also an issue of ethics. No one should be completely copying your recipes without your permission and without attribution.
There are several things you can do if someone uses your recipes without permission. Calling or writing the person is always a good first step. If you get no response or a response you’re not happy with, the best next step is to begin the DMCA notice and takedown process, or hire a lawyer to send a cease-and-desist letter on your behalf. Also, it’s always prudent to put a copyright notice on your recipes to remind people that copyright exists in them, and that they need to contact you to reproduce them.
2. Someone pirated a great deal of my online content, cutting and pasting it to a website registered outside of the U.S. The content included my photos with metadata. What can I do to stop them?
Use the same remedies as above, except for the DMCA takedown notice, which only applies to US-based sites. You could file a lawsuit for copyright infringement against a website owner in another country, but this might be a lengthy and costly process and its outcome less predictable.
3. I worked in a Chicago restaurant 20+ years ago, and kept all the fabulous recipes. The restaurant is now long gone. Can I publish these recipes? How long can a restaurant that no longer exists lay claim to recipes?
While a list of recipe ingredients can’t be copyright-protected, other elements can be. Copyright would reside in either the author of the recipes, or the restaurant if the author created them in the course of employment or certain commission circumstances. The duration of copyright in the U.S. is until 70 years after the author’s death; whether or not the restaurant still exists is immaterial.
The legal route in this situation is to make every effort to locate the restaurant owner, or the recipe author if you know who they are, for permission to use the recipes. If you’re unsuccessful, you could use the list of ingredients and write your own headnotes and directions, but make sure you make the ethical choice of providing attribution for the recipes. For example: “I enjoyed this pork roast with a caramel glaze at Harry’s Diner in Chicago back in the early 90s. The restaurant may be long gone, but the recipe remains a family favourite!”
4. If I develop recipes as an employee, who owns the rights to them?
Under U.S. copyright law, the employer owns copyright in a work that an employee creates in the course of employment, unless there is an agreement in place otherwise.
5. Many Kindle books on Amazon have copied my pressure cooker recipes. They’ll change a word or two in the name of the recipe, rearrange the ingredients but not change the ingredients or amounts, and reword the directions slightly. One book is basically an index of my recipes. Do I have any recourse?
Use the same remedies as mentioned in the first answer. This situation could be an infringement of your copyright with respect to the recipe directions. If you wish to pursue this further, consult a copyright lawyer.
6. Someone used the same title of my book for his book. Should I have tried to trademark the title when mine came out? If yes, is it too late to do that now?
Titles, names and short phrases are not copyright-protected under U.S. law. In some circumstances you can trademark protect a title, and you can initiate a trademark application after you’re already using it. Be aware that the trademark process is a complex legal process and the U.S. Patent and Trademark office advises that you consider use of an attorney. You should also consult a lawyer for other remedies outside of copyright law.
7. I wrote recipes for a publication six years ago. Now I want to reuse them. I was a freelancer at the time and there was no contract. Am I entitled to put them in a book?
In this situation, with no agreement that the commissioned work was a work made for hire, then, as the author of the recipes, you remain the first copyright owner and are free to use the recipes as you wish.
8. What about when someone uses your recipe to make a popular video and they don’t give you credit on the video or link to you. It’s a very specific recipe, not scrambled eggs or lasagna. Any recourse?
When you write and publish a recipe, anyone can make that recipe. It is not copyright infringement for someone to make a video of themselves making the recipe, but ethically they should be attributing the recipe to you.
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Lesley Ellen Harris is a copyright lawyer, author and educator. Lesley is the founder and publisher of the copyright resource site Copyrightlaws.com, where she explains the law in plain English. Copyrightlaws.com offers eTutorials to educate nonlawyers about legally using images and other copyright issues.
Finally see the answer to a question I’ve needed answering… thanks, just sent you a message Lesley!
On a personal note, years ago, bizz partner and I had a copyright infringement of educational manual we wrote and had officially copyrighted… most of the thief’s book he was selling on eBay was simply pages he copied himself and inserted into a notebook.
When we called copyright office about what to do, were told at that time (don’t know if still the same now) to contact local FBI…. which I did. They basically told me they had so many cases bigger than a copyright infringement they couldn’t do anything to help us… they would put on their list, but may not hear back from them for 3 years!
Fortunately, we had an attorney friend send a letter to this person and our intimidation brought it to a screeching halt, but if it hadn’t, there’s no way our little company could have spent untold thousands fighting this thief!
Great stuff here! thanks so much for sharing
Great Q&A! Very helpful and easy to understand. Thanks for sharing your expertise.
This is such great info and so helpful. Thanks. I have one related question…What about copycat recipes for brand name cookies and bars? I often see recipes for copycat KIND bars, Starbucks ginger cookies, Bear Paws and so on. Is there the potential for legal recourse from the company when a blogger uses a brand name in that way?
Such helpful information! Someone used the title of my book and my website for a free ebook (exact title). That was a killer. It wasn’t worth pursuing but was so frustrating.
What a great source of information. Very, very helpful. I look at it and deal with it from both sides of the issue. Good to know I’m doing things the right way and what my options are if somebody uses my content. Thanks!,!
Great article.
And for the person that asked about those restaurant recipes – I’d love to see the recipes 🙂
Great information- and a constant checklist in my head! As a librarian and fledgling blogger, I am hyper-aware of how I use and attribute others’ work. I wish there was a badge or something to put on a site, showing that you took a course on copyright or usage for bloggers.
Diane, you are doing such a great service to all of us in the food writing world with your fabulous blog! I am constantly learning from you and improving in my own best practices. Copyright continues to be such an enormous issue in our world and I appreciate this post reminding me that it is not only appropriate but important that we continue to be vigilant in protecting our work. Thank you!
Cynthia, thank you so much for taking the time to comment, and for your kind words. We do have to be vigilant in protecting our own work. No one else will do it for us, sadly.
Is it legal to write a cookbook for a specific appliance – for example the InstaPot Pressure Cooker – if you don’t work for that company?
Yes. Anyone can write a cookbook about an appliance. What would be great, however, is if the appliance company endorsed it and helped you promote it.
I understand the perception that the ingredients can’t be copywrited, but the language involved in that particular recipe could be, but If a recipe is posted online (facebook, or anywhere on social media) and I wanted to include it in a blog or book, if I give recognition as to who or where it came from would I be safe from a legal pursuit?
If you want to use it exactly as written, you would not be fine. You would need to get permission from the writer of it, or if it was from a book, from the publisher, which would take time and involve payment.
I have a couple questions about cookbooks. Where do you get your recipes for your cookbooks. Do you just take any recipe and change up herbs. Spices etc. Thanks
You get recipes from your own imagination, or you are inspired by others. I hope you do not take any recipe and change it up a little bit.
I am in a quandary about the intellectual property of a restaurant or its creations. I am writing a book that will involve discussing famous restaurants. I need high-resoution images of some of the iconic dishes (no people) from those restaurants.
I see a two-fold copyright issue; that of the photographer’s rights and of the restaurant who created the food. Many of the images I seek are available via WikiCommons, but would a restaurant have a right or recourse against me if I print such an image?
I don’t see why they would want recourse. You are showing the restaurants in a positive light. Maybe some famous restaurants have a pr department that will give you photos of dishes to use.
Thanks.
very informative and useful info.
I would like to ask 1 question. If I create recipes for a kitchen appliance eg. Air Fryer, and i publish the recipes in a books, along with the info of the kitchen appliance (brand name, picture). Is it an infringement of copyright or trademark?
Or is it will be considered as free promotion for them? Without any copyrights or trademark infringement?
I’m glad you found it useful.
I believe there is no copyright infringement. I don’t think you need to put the “tm” after the name of the product either.
If I am selling an eBook and link recipe ideas straight to their website is that ok? Example, Lasagna, they click on it and it takes them to the website, not mine.
Sure, if you are not producing the entire recipe. You can’t sell an e-book with other people’s recipes in it.
If I were to start a closed Pastry group on facebook, showing how to make certain recipes, Would I be able to use recipes from other cookbooks? As long as I show and link the author’s information?
Note: It would be a paid group
No, I don’t think that would be ethical, especially because it is for pay.
I have a collection of recipes my mom and I cut out of different newspapers. Some have authors and some don’t. I want to publish some of them into a recipe book and possibly sell it. Can you tell me what I need to do so as not to go against copy write laws?
You will have to get permission from each of the recipe writers or the publishers of their cookbooks, Ken.
I don’t know of any of the recipes that came from a cookbook nor do I know which paper it may have been cut from. The few I know of that have authors are over 30 years old. Should I still try to contact them?
You need to do your due dilligence regardless. Try googling the recipes to see if they come up. And yes, you should still try to contact them. The recipes do not belong to you, so you are not free to use them as you please.
I am wanting to make a cookbook from old family recipes, from my Mom, Grandmother etc… Also, growing up all the neighborhood women shared their recipes with each other. They are mostly hand written or typed and, some but not all include the names of who they came from in the neighborhood. The majority of these women are no longer around, so, how can they be reproduced without getting permission if they are deceased? They have been passed down to me from my deceased Mother. Can I still use them so they are passed on and not lost?
This is a common problem, Anna. What I would do is research the recipes themselves online. If they are very close or identical to published recipes, then it might be difficult for you to just reproduce them.
P.S. Anna, if the cookbook is just something to distribute to friends and family, and you are not trying to make money from it, then it is probably fine to reproduce those recipes.
Hi Dianne
Great article, can I clarify the brand name use, please. I am writing a cocktail book which uses 8 brands of gin which are clearly named. I have stated that I don’t work for the companies and have not been paid to promote, so is it ok to use their brands? The book is basically about a group of women that meet in a shed and drink gin and these are some cocktails that I have put together – some based on timeless recipes – like martinis.
What is the reason to name the brands in the recipe? I can’t think of one. I wouldn’t do it, because you don’t want readers to think that, even though they have a bottle of gin at home, they have to rush out and buy a different one because of the recipe.
Thanks for the reply. I understand your point fully, but in this case, it is all about the gins and by taking 8 gins with distinct flavour profiles and making 3 cocktails for each that match them. For instance, Brockmans gin has a very distinct flavour profile which isn’t replicated by another gin, the 3 cocktails have been made to best suit their dark fruits gin and although could work with other gins, it’s more about what we are drinking in the gin shed at the time and our favourites. Gin is massive here in Scotland with lots of distinctive brands to choose from.
I am looking in to writing a self-help book, and was going to use some of my own recopies, family, friends and ones I have found on line, pin-tress, you tube, etc…. Would that be ok as long as I use my own words?
It’s a complicated subject, but yes, that is a good first step. I just put a link in today’s newsletter that explains the matter in more detail, written by a lawyer. See
https://www.guidethroughthelegaljungleblog.com/2018/01/protecting-your-recipes.html/
And if you’re not a subscriber, you might want to sign up. https://diannej.com/newsletter/