Friday, February 27, 2009

It's Food not Intellectual Property

With the imminent release of my new electronic cookbook, I have had a couple people ask me about copyright issues as relates to cookbooks and recipes, especially as it pertains to an electronic cookbook that can be ripped off really easily. After all, we've all heard about famous cookbook authors ripping off recipes from other sources.

The law is pretty clear and pretty murky at the same time. A mere recipe, that is, a list of ingredients and the process of combining them, is generally not copyrightable. A novel industrial process of combining or cooking those ingredients might be patentable and a gee whiz name for a recipe (that is other than the obvious) might be trademarkable, but protecting the basic recipe, well, it's not happening. That's the clear part of the law: ripping off published recipes, while not ethical, is not illegal.

The murky part is what happens when you combine a recipe with several others to form a unique work called a cookbook. The overall work can likely be copyrighted: most courts would hold that nobody has the right to take your cookbook, put a new cover on it, and represent it as theirs. And of course, all your text surrounding the recipes is yours too. But as to the individual recipes in the book, they are documentation of the steps in a process and the Copyright Act is pretty clear about not protecting such things.

And I'm actually glad of that. Having been involved in intellectual property lawsuits in the computer software business, I've seen firsthand the chilling effect on creativity that IP lawsuits can have, and the kitchen is a place where we need all the creativity we can get. Moreover, I've seen what BS the patent examiners at the USPTO will let people patent.

As an example, they let Smucker's patent the crustless peanut butter and jelly sandwich back in 1999. Actually, the USPTO did something much more egregious than that. They let Smucker's patent any crustless sandwich, if you can believe that, the stuff that we made for our kids long before Smucker's ever decided to pursue their patents. Only after serious litigation did the USPTO cancel all the claims under Smucker's original ridiculous patent.

Speaking of ridiculous claims, Lebanon announced plans back in the fall of 2008 to sue Israel for stealing Lebanese dishes such as hummus, baba ghanouj, and tabbouleh and marketing them as their own. This falls in the category of "Are you serious?"

As the title of this post says, "It's Food, not Intellectual Property." There's no intellectual property in food. The Lebanese didn't invent anything, nor has any cook in recent memory. Even Ferran Adrià and acolytes haven't invented anything, as novel as it may appear on the plate. They're merely taking well known industrial food processes and bringing them into the restaurant kitchen. He knows this and has been very gracious about teaching the rest of us his tricks.

Everything that we do in the kitchen is based on what endless generations of cooks have done. For example, my cookbook includes a recipe for Persimmon Salsa. Granted it's not all that common a recipe and I had never heard of anyone doing it before me, but it would be ridiculous of me to think that I had invented anything. And a quick Google of "persimmon salsa" shows nearly 2000 references, most of which I am sure antedate my recipe.

Seriously, all I did was substitute one fruit for another in a sauce that has been around for centuries. That's not invention; that just what curious cooks do and have done since time began. Also, the recipe is there for the reader's convenience. You can imagine how useful a cookbook would be if a recipe called for a half a cup of Persimmon Salsa, and then referred you to some other book that you don't even own for the recipe, simply because somebody else had claimed ownership of the idea of Persimmon Salsa.

So, I give you my recipes willingly. And I hope that you will take them, modify them to make them your own, and pass them along. I learned from others and if you learn from me, I hope others can learn from you. Of course, if you don't modify the recipe significantly, it's always friendly to say "adapted from ...."

For more reading, I refer you to "Can a Recipe be Stolen?" by Joyce Gemperlein writing for the Washington Post and "The Patented Peanut Butter and Jelly Sandwich" by Anna Shih writing for Gastronomica.

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