From October 2016 to March 2017 the team is joined by Guest Kats Rosie Burbidge and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Tian Lu and Hayleigh Bosher.

Wednesday, 28 October 2015

You Say Tomaydo, I say Tomahhdo: Recipe Book Not Original, says US Court of Appeals

Us Kats have an incredibly sophisticated food palette, and not just any slop will satiate our food-based requirements. As such, this Kat enjoys his food-based litigation, especially in the remit of intellectual property. Recipes are one form of literary grandeur that faces Lady Copyright's fickle nature more often than not, and a recent decision in the US Court of Appeals for the Sixth Circuit was no exception.

Some tomato-based things can be original
The case of Tomaydo-Tomahhdo LLC v George Vozray et al, Case No. 15-3179 (available here), dealt with the restaurant Tomaydo-Tomahhdo, and a subsequent cookbook bearing the restaurant's eccentric name, started by restaurateurs Rosemarie Carroll and Larry Moore. The pair developed the restaurant into a success, which was largely attributed to its great food (unsurprising in the restaurant business, one would think) developed by Mr. Moore. Recipes were only included in the restaurant's menu through rigorous trial and error, using test groups to trail new recipes before their inclusion. Some years later the pair split from the business, with Ms. Carroll acquiring Mr. Moore's stake in the company, along with any and all recipes and other related materials. Mr. Moore then went on to start a new restaurant venture, called Caterology. As said above, Ms. Carroll compiled a recipe book of dishes served at Tomaydo-Tomahhdo. Ms. Carroll then accused Mr. Moore of copyright infringement in allegedly using recipes at his new restaurant.

At first instance the cookbook was seen as not protected by copyright. In her judgment Judge Gaughan saw that "Although copyright protection may extend to a recipe book or cookbook to the extent it is a compilation, the copyright protection afforded to compilations extends to the “order and manner of the presentation of the compilation’s elements, but does not necessarily embrace those elements"". What Ms. Carroll had argued was a copying of the recipes themselves, not their arrangement, which would not fall under the remit of copyright. A copying or use of the recipes would not be copyright infringement, only the expression of those recipes.

The Court of Appeals agreed with Judge Gaughan. The judges saw that, as it has been firmly established, compilation works, such as recipe books, will generally not be protected by copyright unless "...the collection and assembling of pre-existing materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original authorship". Ms. Carroll argued that, as Mr. Moore had conducted his trial-and-error process and the recipes had been arranged and compiled in a very specific way, the book would be original. The Court disagreed, focusing on what is unoriginal rather than what would be original.

Ginger was not a fan of this new 'fruit'
Judge Donald, handing down the majority judgment, quickly determined that recipes, as was decided at first instance, did not enjoy copyright protection. The recipes were deemed to be pure factual statements and sets of instructions, and thus not protectable. He did, however, discuss that recipes could potentially be seen as original, so far as the author or authors "...lace their directions for producing dishes with musings about the spiritual nature of cooking or reminiscences they associate with the wafting odors of certain dishes in various stages of preparation". Clearly, should the author add more substance to a recipe than pure step-by-step instructions, it could be considered original, although Judge Donald gave no indication as to the requisite degree of 'musings' needed. Ms. Carroll's argument as to the originality of the recipes' compilation was also rejected, since no evidence was given to this fact, but only in the creation of the recipes themselves. As a result the book was deemed to not be protected by copyright, and the District Court's decision affirmed.

Recipes are incredibly difficult to protect, and without much added substance to the recipes themselves they will fail the test of originality. Many chefs and food creators would undoubtedly love legislation allowing the protection of recipes, but it seems highly unlikely that that would be the case any time soon.

No comments:

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':