Turkey, Trademarks, Copyright, and Cranberry Sauce – IP and Recipes

This Thanksgiving, we're diving into the world of intellectual property and recipes. Can chefs own their culinary creations? Can a recipe be copyrighted? From Turducken trademarks to creative cookbooks, we're discussing the legal side of your favorite holiday dishes. Tune in to The Briefing’s milestone 200th episode with Scott Hervey and Tara Sattler for all the tasty legal details. Watch this episode on the Weintraub YouTube channel here. Show Notes: Scott: There are numerous ways to cook a turkey and thousands and thousands of recipes for turkey. Some are old fashioned like roasting with stuffing, some are newer like Tandoori Style, and some, well, I still just don't get like the turducken. But who exactly owns all of these turkey recipes, not to mention all the recipes for stuffing and cranberry sauce. I'm Scott Hervey, a partner with the law firm of Weintraub Tobin. And today I am joined by my partner, Tara Sattler. We're going to talk about IP protection for recipes on this special Thanksgiving episode of the Briefing. Tara, welcome back to the Briefing. Happy Thanksgiving to you. Tara: Thanks, Scott. Thanks for having me. And this is an exciting topic to dig into. Scott: Yes, I see we both have our like, fall themed backgrounds up, despite the fact that it's 71 degrees here today in Los Angeles. Tara: Well, not for much longer. Scott: Yeah. Well, so today we're diving into the fascinating and often murky world of intellectual property protection for recipe recipes. So can a chef actually own their culinary creation? And what about their cookbooks? And what happens when recipes are copied and shared? Tara: All great questions. So let's start with the basics. Protection of a recipe. So some famous chef creates a dish that is huge and a really big hit. But legally, how much protection does a recipe actually get? Scott: Well, that's a great question. So U.S. copyright law protects any original work of authorship that's fixed in a tangible medium of expression. So one would think that an original recipe that a chef creates and writes down and may include in the cookbook or online is protected by copyright. However, that is not necessarily the case. In the United States, recipes generally don't receive strong intellectual property protection. Copyright law does not cover lists of ingredients or basic instructions on how to use setting ingredients. In 1996, the SEC, the Seventh Circuit case of Publications International Limited versus Meredith Corporation involved claims of copyright infringement of a number of recipes. And in that case, the court said that recipes that were involved in that case comprised merely of the list of required ingredients and the directions for combining those ingredients to achieve the final product. The recipes contained no expressive elaboration upon either the functional components or how to create the end result. And as a result, the court found the recipes to be not protectable. Now, this is as opposed to recipes that might spice up functional derivatives by weaving in creative narrative. Tara: But digging into what the court said, if a recipe included expressive elaboration, then that may be protectable. This probably explains why some cookbooks and food bloggers weave personal stories into Their recipes. Scott: That is true, and probably the case. But regardless how creatively a cookbook may lay out a recipe filled with stories from the chef's childhood pictures, et cetera, the ingredients and the process for making the dish itself are not protectable.