December 10, 2014

Horse 1802 - A Recipe For Success... Would That Recipe Be Copyrightable?

I remember that once upon a time in high school; back before even the days of Eternal September on the internet and you actually had to look stuff up in books and newspapers, coming across an article in probably the New York Times on microfiche, which published those "11 secret herbs and spices" and remember that it was like striking the gold of Ophir.
This week whilst listening to the BBC World Service, I heard someone made the comment that things like recipes and instructions in DIY manuals are incredibly difficult to copyright because although you can copyright text, video and audio, ingredients and proportions aren't something which necessarily can be. If you published a recipe for caramel slice for instance, the ingredients like sweetened condensed milk, eggs and sugar, are readily available and therefore can not be said to be unique; neither can the process of mixing and cooking ingredients, and besides which an egg isn't the sort of thing that you can put a patent on.
Closely related is the fact that you can't copyright an idea. You couldn't for instance write a new Poirot novel without permission from the estate of Agatha Christie but the idea of a Belgian detective is not something which can be blanket copyrighted. You are perfectly free to write the story of an orange cat, provided it doesn't share the same name as a particular bearded president of the United States.

Recipes then, are quite difficult to copyright because if we take our example of our caramel slice, even if you wholesale pinched the whole recipe from another cookbook, if you changed some of the elements slightly, you'd have what would effectively amount to being a new recipe. If you copied the whole recipe verbatim, then the text might be copyrightable but the caramel slice at the end, might not be.
Think about this, the Dynamic Ribbon Device, the particular script and the colour scheme of a particular cola drink all carry copyright notices but I don't think that the brown liquid itself does.
One particular chocolatier has managed to copyright one pantone shade of purple but the deliciously delectable brown bairn of Bourneville is not.

The real credence of a cook book then, is not to be found in the text but whether or not the recipes actually work. As much as I enjoyed reading Mrs Beeton's Book of Household Management, for the sheer impossibility that anyone could be expected to produce any of the dishes therein, the actual recipes probably wouldn't be copyrightable (quite apart from the fact that it was published in 1861 and so is in the public domain anyway).
This might sound utterly bonkers but Jamie Oliver, Nigella Lawson, Ainsley Harriot and Manu Fidel, have marketable books, not because of the recipes that they have written but because of the rest of the accompanying text and photographs. If I were to change a few of the recipes in Jamie Oliver's books, I could have my very own publishing career. It wouldn't be a very good one because I don't have the celebrity pulling power to sell very many copies. Then there's the rather obvious problem that if I stole Jamie Oliver's recipes, it's very much like stealing the moral low ground.

The Australian Copyright Council has this to say in its fact sheet:
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 does NOT protect:
• ideas (such as the idea of using blue cheese to make ice-cream);
• information (such as the list of ingredients and quantities used in chocolate chilli mud cake); or
• styles, methods or techniques (such as a method of preparing chicken and casserole).
Therefore, if you watched someone preparing a dish they had created and then wrote down in your
own words the ingredients and method, you would not have infringed copyright even if they had not

granted permission.
- Information Sheet G019V09, Australian Copyright Council, Feb 2012

So then Jamie Oliver... I'm stealing the moral low-ground; safe in the knowledge that because I've changed some of the text, I'm not infringing on copyright.

300g Self-Raising Flour
175g Butter
50g Sugar
400g Tin of Sweetened Condensed Milk (a tin)
100g Butter
2 Tablespoons of Golden Syrup
100g brown sugar
150g Milk Chocolate

1. Steal recipe from Jamie Oliver's cook book; being careful to change some of the words so that the recipe is no longer distinctive and then publish.
2. Go to your local bakery and buy caramel slice.
3. Sit back in complete impunity; safe in the knowledge that a recipe is mostly uncopyrightable.

The bonus with this is that at the end... you have caramel slice.

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