One Hot Potato Salad

That irksome question—can recipes be copyrighted?—has reared its ugly head again, only this time instead of politicians’ wives, it’s bloggers involved. Melissa of Alosha’s Kitchen recently published a post in which she modified a Cook’s Country potato salad recipe, making at least three changes to it. She credited the source, but Cook’s Country was not happy. Melissa received an email from Cook’s Country’s publicity company asking her to take down the recipe. She protested, replying that “People make modifications to other people’s recipes all the time. It’s part of the food blog life.” Cook’s Country’s PR person, however, replied, “Sorry, no modifications allowed. Our recipes are tested up to 100 times for a reason (i.e. because they work). Let’s agree to disagree and please don’t print our recipes at all (as they are copyrighted). Thanks!” Melissa took the recipe down.

Was the PR person right? It’s hard to know without seeing the recipes side by side, but the short answer is, probably not. The U.S. Copyright Office states that it can’t register claims for “Mere listings of ingredients, as in recipes, labels, or formulas” and “When a recipe or formula is accompanied by explanation or directions, the text directions may be copyrightable, but the recipe or formula itself remains uncopyrightable.” As the Washington Post noted in a 2006 story, “Cooking is not considered inventing; rather, it evolves. Copyright law specifies that ‘substantial literary expression in the form of an explanation or directions,’ such as a cookbook, can be copyrighted but that a mere list of ingredients cannot receive that protection.”

But what constitutes “an explanation or directions” is still murky. Short, generic phrases like “whisk the remaining ingredients” are not copyrightable. Gene Quinn, a patent attorney writing at IPWatchdog.com, says, “In copyright law there is a prohibition against protecting even original expression if there is only a limited number of ways to convey said expression.” He continues, “Simply listing generic steps or directions cannot, in my opinion, be protected. So a recipe that lists the ingredients and then says ‘mix together, pour into pan, put into oven at 350’ seems to me to lack ‘substantial literary expression.’ Of course, the more originality that is infused the more likely some copyright protection will exist, but taking the component pieces of a recipe is no violation.”

This puts entities that rely on their recipes in a strange position, however. The product Cook’s Country is selling is its carefully tested recipes; if those recipes are available everywhere, the magazine’s not going to make money.

Ironically, Cook’s Country is currently asking readers to submit their favorite family recipes. No mention of whether those family recipes will be subject to Cook’s Country copyright if published.

One thing’s for sure: Cook’s Country probably needs a new public relations firm. The blog fury generated by this event could singe a pickle. Barbara Fisher at Tigers & Strawberries calls the public relations person “misinformed,” and Cook’s Country “arrogant.” Viktoria Sundqvist at Cool Swede calls for people to cancel their subscriptions to America’s Test Kitchen publications. Cate at Sweetnicks thinks Cook’s Country has some “splainin’ to do.” And Kate Hopkins at Accidental Hedonist, who has posted her own version of the potato salad, puts it most succinctly. “America’s Test Kitchen?” she writes. “You can go suck an egg.”

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