Common Questions – Can I Copyright My Formula?

Probably not. No matter how new a formula (a.k.a. recipe) may be, if it simply comprises a combination of ingredients mixed together to form a new and unique dish, it is not likely to be copyrightable. And, once published, even if the recipe contains additional descriptions or commentary or similar copyrightable expressive content, nothing would actually prevent someone from making the dish.

Consider an example of the brand-new restaurant, whose chefs for have worked together to create a very unique and unusual menu for their customers. After several months, one chef leaves to start a new restaurant – and publishes a cookbook that contains many of the recipes he co-developed with his former co-owner.

Is this infringement?

Early last year, a federal court in Ohio considered this very fact pattern and concluded that while a collection of articles (i.e., a published cookbook) was perhaps copyrightable as a compilation, the individual recipes did not have several similar protections.

In Tomaydo-Tomahhdo, LLC v. Vozary, No.: 1:14-cv-00469, 2015 BL 22110, 113 U.S.P.Q.2d 1695 (N.D. Ohio Jan. 29, 2015), the district court concluded:

“To the extent plaintiffs have a valid copyright in the recipe book, the copyright protection extends to the layout and creative expression contained in the book. It does not extend to the recipes themselves.”

Id. at *3. Concluding that the defendant had not copied the layout “or other creative expression contained in the recipe book”, there was no infringement. Id. Creating menu items for the new restaurant based on the recipes contained in the book were not infringing either. Id.

The Sixth Circuit Court of Appeals later overruled the lower court’s conclusion that the recipe book was copyrightable in the first instance. The Sixth Circuit held that the plaintiff failed to point to any actually creative or original content, instead making only conclusory assertions that the selections and order of the recipes were “creative” and thus copyrightable. Tomaydo-Tomahhdo, LLC, v. Vozary, Civ. A. No. 15-3179, 629 Fed.Appx. 658, 661-62 (6th Circuit Oct. 20, 2015) (“As a matter of law, Tomaydo has not shown that any aspect of their recipe book is original and would therefore enjoy copyright protection.”).

Previous courts have denied copyright protection to recipes generally, noting that the copyright claimant simply failed to demonstrate any creative components in the recipes sought to be protected. For instance, the Seventh Circuit held that while compilations could obtain copyright protection, such protection did not automatically extend to each component of that compilation. Publications Int’l, Ltd. v. Meredith Corp., 88 F.3d 473, 480 (7th Cir. 1996) (“A compilation copyright protects the order and manner of the presentation of the compilation’s elements, but does not necessarily embrace those elements.”) (emphasis in original). Specifically, the Seventh Circuit then held that the individual recipes in the subject recipe book were not individually protectable:

The recipes involved in this case comprise the lists of required ingredients and the directions for combining them to achieve the final products. The recipes contain no expressive elaboration upon either of these functional components, as opposed to recipes that might spice up functional directives by weaving in creative narrative. . . . There is no expressive element in each listing; in other words, the author who wrote down the ingredients for ‘Curried Turkey and Peanut Salad’ was not giving literary expression to his individual creative labors. Instead, he was writing down an idea, namely, the ingredients necessary to the preparation of a particular dish.

Id. (explaining, however, that they could not conclude that no recipe could ever qualify as copyrightable and confirming that such decisions are dependent upon specific facts presented).

So, how do you keep others from copying your recipes?

Consider protecting them as trade secrets – and don’t publish them. Think of the Coca-Cola Company’s reputed success in protecting the flavoring packet for its flagship sodas as a trade secret. Perhaps it could have sought patent protection for the chemical composition embodied in the recipe, but doing so would have required that it publish the formula in a patent application (which is later embodied in the issued patent) so that when the patent protection expired, a competitor could have legitimately manufactured and sold an identical generic version.

But, if recipes are flagship assets of a company’s business, the company may obtain longer-lasting protection of its proprietary rights if it keeps these secret and protected against public disclosure. Trade secrets can have nearly permanent protections, provided that the owner maintains the secret and maintains its diligence in preventing unauthorized or unexpected disclosure.