Deceptively Delicious: Intellectual Property Protection for Recipes and Cookbooks

In 2008, Jessica Seinfeld was sued for copyright infringement over a cookbook she wrote. The copyrighted cookbook, entitled Deceptively Delicious, showcased recipes that allow parents to sneak healthy food into foods picky children would eat, primarily by pureeing the healthy foods. The book contained an introduction by the author, a section instructing readers on how to cook basic items (e.g., pasta, rice, chicken), sections with breakfast, mealtime and dessert recipes, and a section on nutritional information attributed to a nutritionist. The allegedly infringed book, a cookbook called The Sneaky Chef, was an informative and lecturing book outlining the author’s food philosophy as developed over the course of her career, containing twelve different methods of sneaking healthy foods into kid-friendly foods (including pureeing), and overall was a more academic book. After comparing the two cookbooks, the court found that there was no infringement, and that decision was affirmed on appeal. Understanding how the court arrived at that decision aids in understanding the protections afforded under intellectual property law to recipes and cookbooks.

Are Recipes Protectable?

There was not much argument in the Deceptively Delicious case about whether recipes are protected by copyright law. In part this was because there was no allegation that Deceptively Delicious copied specific recipes from The Sneaky Chef. But it was also because the parties agreed that under established copyright law, recipes are not entitled to copyright protection. In particular, the Copyright Act excludes listings of ingredients from copyright protection. A listing of ingredients is considered a list of facts, and facts are not protected by copyright. Other elements of recipes, such as a headnote introducing the recipe and telling a story about it or its history; instructional notes with directions on substitutions, preheating the oven, greasing pans and the like; the steps for assembling and cooking the ingredients; and accompanying photos are entitled to copyright protection, although the scope of that protection may be quite narrow.

Copyright protection is not a reward for the hard work (or sweat of the brow) that one invests in developing a new version of an old recipe or an entirely new recipe. The Supreme Court has explicitly rejected this view of copyright protection; it is originality, not the effort that is put into creating a work, that is the basis for copyright protection. Thus, an alphabetic phone directory would not be protectable, regardless of the effort put into assembling it.

That is not to say the recipes are without protection. Recipes can be protected as trade secrets, like the formula for Coca-Cola or KFC’s blend of herbs and spices. The key to such protection is keeping the recipe secret, which in the context of a restaurant or a corporate endeavor will probably require the signing of confidentiality agreements and limiting disclosure of the recipe to only those who need to know it. Keeping a recipe secret is difficult, however, because sharing recipes is a common social activity.

Recipes can also be protected by patents, so long as they meet the requirements for patent protection—they must be novel (unique), non-obvious (inventive), and, in the U.S., either not publicly disclosed or, if publicly disclosed, then such disclosure must be less than one year before the patent filing. Patents, however, can be expensive to obtain and it generally takes several years for a patent to issue. For that reason, patent protection likely only makes sense for large enterprises or businesses with the resources to pursue one, rather than a home-based cook.

Are Cookbooks Protectible?

The focus of the claims in the Deceptively Delicious case was that both books presented readers with ways to trick children into eating healthy foods by sneaking them into kid-friendly foods. The court quickly recognized that while both books discussed the same idea, the way they presented the idea was vastly different. The court explained that The Sneaky Chef was a dry, lecturing type of book that was arranged in a typical cookbook type format and which had a dull, black, gray, and brown-orange color scheme, while Deceptively Delicious was written by a busy parent for harried parents with little cooking skill and which had a bright and cheerful color palate. Perhaps most importantly, there were no instances where Deceptively Delicious copied text or images from The Sneaky Chef. Indeed, the court found that most of the similarities between the two cookbooks were similarities that are shared by the cookbook genre as a whole: an illustrated cover, followed with an introduction by a third-party; a narrative by the author; lists of appliances and ingredients; instructions about preparing common ingredients; a list of recipes, etc.

The central claim of the lawsuit was, instead, that The Sneaky Chef and Deceptively Delicious shared the same idea. Copyright, however, does not protect ideas. Rather, it protects the way an idea is expressed. The intent is to encourage people to create new works based on or incorporating the ideas of others. As a result, there are multiple ways to make a chocolate chip cookie. If copyright protected the idea of a chocolate chip cookie, then there would be only one way to make them, and any other way would be an infringement. Thus, the court in the Deceptively Delicious case held that “[t]he overlapping subject matter of the books – hiding healthy foods in dishes that children enjoy by including pre-made purees in popular types of kids’ foods – [was] insufficient to sustain a claim of copyright violation.”

While the idea of a cookbook may not be protectable, a cookbook can be protected by copyright. Such protection would prevent the copying for the specific writings in the cookbook, the specific images and illustrations, and possibly the arrangement of the cookbook or the recipes selected for inclusion. But that protection would not prevent someone else from writing and publishing their own cookbook based on the same idea.

So What Does it all Mean?

If recipes are not protected by copyright, and possibly protected as a trade secret or by a patent, does that mean you can take the recipe your neighbor gave you a few years ago and include it in your new cookbook? Legally you probably could, but that does not mean you should—your neighbor might have a lot to say about that on social media, especially if the recipe is a treasured family recipe. Copying recipes out of someone else’s cookbook to include in your own cookbook without permission is also probably a no-no, particularly if what you copy is more than the list of ingredients and the bare directions.

In other settings, this can be a much more sensitive topic. Chefs and restaurants must determine early on if a recipe is important enough that they want to try to secure patent protection for it, or protect it as a trade secret, even though it might take some time for an establishment to become known for a signature dish. And copying a recipe from a restaurant or chef for inclusion in your cookbook can be risky, as they will likely have the resources to pursue legal action against a copyist; even if their position is legally wrong, the cost in terms of time and money is likely not worth it.

The upshot, then, is that while recipes may not have the strongest legal protection, there are also social protections in place. If you want to stay out of trouble, treat someone else’s recipe as you would want them to treat your own. If that fails, speak with a knowledgeable intellectual property attorney.