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2 November 2015Copyright

WIPR survey: Recipes should not be copyright-protected, readers agree

A US court was correct to rule that recipes should not be protected by copyright, WIPR readers have said.

Responding to our most recent survey, 71% of respondents said they agreed with the US Court of Appeals for the Sixth Circuit’s decision to deny a US restaurant owner’s attempt to copyright a recipe book she owned.

The sixth circuit, in a ruling handed down on October 20, upheld a lower court’s ruling from last year and said that recipe books do not constitute an “original compilation”.

The decision centres on a copyright infringement claim asserted by Rosemarie Carroll, owner of the Cleveland-based Tomaydo-Tomahhdo restaurant. Carroll sued her former business partner Larry Moore last year.

In 2007, Carroll had bought Moore’s interest in the restaurant for $250,000.

Under an agreement reached by both parties as part of the deal, “all original and copies of ... menu files and development ideas, recipes (current and historical), and training tools (picture boards, build sheets, prep lists, and master order guide)” were transferred to Carroll.

Moore went on to set up another restaurant called Caterology with George Vozary, a former Tomaydo-Tomahhdo employee.

A year later, Carroll published the “Tomaydo-Tomahhdo Recipe Book”.

In 2014, Carroll sued Moore and Vozary at the US District Court for the Northern District of Ohio claiming that the pair infringed her copyright and trade secrets by using her recipes on restaurant menus without her permission.

The district court granted Moore’s and Vozary’s motion for summary judgment in February 2015, clearing them of any liability. Despite an appeal against the decision lodged by Carroll, the sixth circuit held firm and unanimously upheld the previous ruling.

Judge Bernice Bouie Donald, presiding over the case, said: “Tomaydo does not point to anything demonstrating that the recipe book is an original compilation.

“Tomaydo never identifies what is original and creative about their process. Their description merely characterises how recipes are developed and further perfected.”

Most readers appeared to agree with the sixth circuit’s interpretation.

One respondent said: “Copyright grants such a protection that even if another person comes up with a similar/same creation ‘accidently’, which can be rather easy with recipes, the copyright owner may claim infringement. However, there are some goods/services that shall not be monopolised, one of which is cooking.

“They can and should, on the other hand, be protected under general rules such as trade secret and/or confidentiality.”

Another said that originality “is likely to be the missing ingredient in most situations”.

“I would have thought, however, that recipes that have genuine commercial value would be better protected by the law of confidential information,” the respondent added.

But not everyone was in agreement.

Another respondent, giving something of a history lesson on intellectual property, said: “It’s generally considered that IP had its start in 500 BC in the Greek city of Sybaris (located in what is now southern Italy). Exclusive rights were granted for one year to creators of unique culinary dishes.

“As long as a recipe is original, why not protect it?”

For this week’s question we ask:  “During the LES 2015 Annual Meeting in New York, a lawyer from technology company IBM said legislation will ultimately be required to address the uncertainty around patentability created by the US Supreme Court’s Alice Corp v CLS Bank ruling. Do you agree?”

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More on this story

Copyright
22 October 2015   A US restaurant owner’s copyright claim centring on a recipe book has fallen flat at a US appeals court because it was deemed not original enough to deserve protection under US law.