Can you copyright
Author: Dale Eisinger
In late August, the U.S. District Court for The District of Puerto Rico dismissed an appeal on a civil suit filed there. The dispute, between Norberto Colón Lorenzana and South American Restaurant Corp., stemmed from a fried-chicken sandwich. “Pechu Sandwich” hit the market in ‘91; but, Church’s Chicken, the franchised restaurant at which Colon first cooked up the snack, didn’t move to register the “Pechu Sandwich” as a trademark, until ‘99. Colón--who, as far as the suit is concerned, undisputedly “invented” this rather ordinary sandwich, didn’t file his claim until 2014. He wanted a cut of the profit and claimed Church’s had wilfully exploited his idea.
Chief Judge Jeffrey R. Howard got cheeky with the language in the decision, writing re: “the meat of the matter” and of Colón “crying foul” [fowl]. Howard wrote that Colón failed on a fundamental level to provide evidence of SARCO’s malice. So in regard to the copyright claims, there was never a chance:
“Contrary to Colón's protests on appeal, the district court properly determined that a chicken sandwich is not eligible for copyright protection. This makes good sense; neither the recipe nor the name Pechu Sandwich fits any of the eligible categories and, therefore, protection under the Copyright Act is unwarranted. A recipe -- or any instructions -- listing the combination of chicken, lettuce, tomato, cheese, and mayonnaise on a bun to create a sandwich is quite plainly not a copyrightable work.”
In the time between Colón’s invention of the sandwich and his lawsuit, a legal precedent had already been set. A 1996 Seventh Circuit Court, in a case of publishing and republishing recipes, separated the recipe into two parts: functional and expressive. The functional aspect was the list of ingredients and the preparation itself. The expressive aspect was a matter of how creative elements wrapped around the functional elements.
Todd Wilbur wrote the book on the subject. Namely, he’s the author of ten volumes of Top Secret Recipes. The self-taught chef has made a career out of writing the recipes to hundreds of popular restaurant dishes and selling the recipes in book form. It’s a cookbook he began in 1993. In November, he will release the 11th installment in the series. He says it’s the way the recipes are written, and the way he gives credit to trademarks, that keeps him in the business of big-brand recipe generation.
“There are certain elements of a recipe, flowery language, the language that’s used in the instruction, the introduction to a recipe, that can be copyrighted,” he says by phone from his Las Vegas home. “But the formula… formulas are just not copyrightable by copyright law.”
Somewhat ironically, Wilbur says he’s had to litigate to protect the writings of his own recipes. As the recipes are of more public awareness, being from chain restaurants, some seem more brash to knock off his writing.
“I’m probably the most plagiarized cookbook author on the internet,” he says. “People have taken whole chunks of what I’ve done and duplicated that in a book. I’ve actually had to go to court though the conditions of the suit say I can’t talk about it.” And a February 2011 patent/trademark suit was indeed filed in California Central District Court on behalf of Wilbur and Top Secret Recipes Inc., against Ronald Duckett and Verity Associates, LLC.
— a legal right created to protect the specific creative expression of an idea through any medium of artistic/creative expression – i.e., paintings, photographs, sculpture, writings, software, etc.
A copyright protects your painting of a haystack, but it would not prohibit another painter from expressing their artistry or viewpoint by also painting a haystack. Likewise, while Ian Fleming was able to receive a copyright on his particular expression of the idea of a secret agent (i.e., a debonair English secret agent), he could not prevent Rich Wilkes from receiving a copyright on his expression of the idea of a secret agent (i.e., a tattooed bald extreme athlete turned reluctant secret agent).
— any symbol that indicates the source or origin of the goods or services to which it is affixed. While a trademark can be extremely valuable to its owner, the ultimate purpose of a trademark is to protect consumers – that is, the function of a trademark is to inform the consumer where the goods or services originate.
The consumer, knowing the origin of the goods, can make purchasing decisions based on prior knowledge, reputation or marketing.
— a formula, practice, process, design, instrument, pattern, commercial method, or compilation of information which is not generally known or reasonably ascertainable by others, and by which a business can obtain an economic advantage over competitors or customers.
In some jurisdictions, such secrets are referred to as "confidential information", but are generally not referred to as "classified information" in the United States, since that refers to government secrets protected by a different set of laws and practices.
Conceptually, it’s a similar matter. The functional components of a recipe are the ingredients and how to prepare them. But the conceptual aspects can be considered the preparation itself. Put it this way: Knowing the basic parts of a complex math equation, is one thing. Parsing those basic parts of the equation from just the solution, is a bit harder.
“One of the smartest pieces of advice I ever got was from a Korean boss I had,” chef Justin Warner says, “I asked him, how many types of kimchi are there? And he said, as many flavors as there are hands.”
Warner is known for his own regular appearances on the Food Network, as well for his popular restaurant Do-or-Dine, that was - until very recently - located in Bed-Stuy, Brooklyn. I called him up on September 10, the morning after Do-or-Dine’s final, sudden closure. The restaurant’s fate is a “long story,” but he says that, in part, he’ll focus on broadening his culinary reach. One way that happens is by encouraging replication of his culinary hot takes.
“Not to be cheesy but with great power comes great responsibility. If you’re called to the world of cooking, you’re doing something good. My mission here on earth is to get people to think about food in a different way. My restaurant was small, and we’d be lucky to fit in 90 customers in a night. I can reach a lot more people through media.”
Warner also has a new cookbook, The Laws of Cooking: And How to Break Them, dropping on October 15. Like the unorthodox food play in the book, Warner’s restaurant was known for rather proprietary combinations, like his Dr. Pepper frog legs and foie gras donuts. Yet he is down with other chefs giving them a whirl.
“I understand there’s a business aspect about it. If someone were to copy a recipe, I might seethe about it, but I wouldn’t seethe too long. I want to think about food, as an artform, [as] one of the few mediums that also keeps us alive.”
In 2007, Christopher J. Buccafusco, an expert on copyright law and art law, found an excuse to interrogate a bunch of bigwig chefs on the subject. He logged interviews with Charlie Trotter, Thomas Keller, Mathias Merges, Rick Tramonto, Wylie Dufresne, Homaro Cantu, Norman Van Aken, Greg Fatigati, and Eve Felder, considered to be some of the most avant-garde chefs in the world.
The result is a lengthy scholarly piece, titled, “On The Legal Consequences of Sauces: Should Thomas Keller's Recipes Be Per Se Copyrightable?” He interrogates the brief litigation history of this topic philosophically, concluding that copyrighting food is no good, as the transience of a recipe left unchecked is actually a boon for the culinary arts - interpretation and culinary dialogue open more possibilities. He also demarcates between the recipe and the preparation, asking the chefs if they’re able to understand the dish in terms of recipe alone. The attitude reflects the tone of Wilbur and Warner:
“In short, just by reading the recipes, the chef could appreciate their meanings, whether about relationships to technique and style or to nature and the seasons,” Buccafusco wrote.
“No one invented mayonnaise,” Warner says. “This is something we’re working on together.”