Safeguarding Your Family’s Holiday Recipes
Introduction
During the holiday season, many people enjoy spending time with family and friends. Often, that time is spent tasting and/or preparing delicious meals and treats. You might use a recipe that you learned from a cookbook or the Internet. Maybe you have a secret recipe that has been passed down through generations.
Sometimes secret recipes are cherished heirlooms, embodying tradition, family history, and love. This blog post discusses different forms of intellectual property protection, and how copyrights and trade secrets, in particular, can be used to protect these culinary treasures. If you or the recipe creator wishes to build a business around the recipe(s), understanding these issues will be invaluable.
Intellectual Property Protection, Generally
There are several forms of intellectual property protection, including patents, trademarks, copyrights, and trade secrets. Patents concern inventions and trademarks concern names, logos, taglines, and other source identifiers. I will spare you a lengthy explanation, but patents and trademarks are typically irrelevant to family recipes. However, if your recipe involves an inventive cooking tool or you want to sell the cooked/baked goods and use a catchy name or logo, patents and trademarks might apply. For more information about patents and trademarks, check out the introductory videos here and here.
Copyright is a form of protection granted by law for original works of authorship fixed in a tangible medium of expression. It is important to note that copyright does not protect ideas, concepts, or techniques, but rather the specific way these forms are expressed.
While copyright is automatically conferred upon creation, registering the copyright with the U.S. Copyright Office solidifies the protection and is necessary for enforcing rights in court.
Copyright protection lasts for the life of the author (i.e., the recipe creator) plus seventy (70) years. This duration offers long-term security for creators, ensuring their recipes are protected well beyond the season of their initial release.
Trade secrets are a form of intellectual property concerning confidential information, which provides a person/business with a competitive edge. This information can include formulas, practices, designs, instruments, patterns, or a compilation of data that is not generally known or reasonably ascertainable by others. Unlike patents, which require public disclosure, trade secrets are protected precisely because they are not disclosed to the public. The value of a trade secret is tied to its confidentiality, which makes it critical for businesses to take appropriate measures to safeguard such information. Companies often employ non-disclosure agreements, restrict access to sensitive information, and implement security protocols to maintain the secrecy of their trade secrets.
The Coca-Cola formula and Google’s search algorithm are well-known examples of trade secrets. Their protection is ongoing as long as the secret is maintained, unlike patents which have a finite term (e.g., 20 years). This indefinite protection makes trade secrets a powerful tool in a company’s intellectual property portfolio, provided they can effectively maintain the confidentiality of these assets.
Copyright Protection and Family Recipes
For family recipes, copyrights can provide protection. Often, however, copyright protection does not create rights the way(s) that the creator of the recipe intends. A lot of people mistakenly believe that copyright protection gives recipe creators the ability to stop others from following/adapting the recipe. That is not the case. Copyright protection gives the recipe creator the ability to stop others from making a copy of the written expression of the recipe. For example, if you served Neighbor Ned with your Lights Out Nachos, you cannot prevent Neighbor Ned from making similar nachos. You could, however, potentially prevent Neighbor Ned from making a photocopy of your written recipe (or jotting down a handwritten copy). That is why copyright protection might be useful for cookbook authors or bloggers who write about and share their recipes with other people.
Circular 33 of the United States Copyright Office entitled “Works Not Protected by Copyright” provides a helpful explanation:
A recipe is a statement of the ingredients and procedure required for making a dish of food. A mere listing of ingredients or contents, or a simple set of directions, is uncopyrightable. As a result, the Office cannot register recipes consisting of a set of ingredients and a process for preparing a dish. In contrast, a recipe that creatively explains or depicts how or why to perform a particular activity may be copyrightable. A registration for a recipe may cover the written description or explanation of a process that appears in the work, as well as any photographs or illustrations that are owned by the applicant. However, the registration will not cover the list of ingredients that appear in each recipe, the underlying process for making the dish, or the resulting dish itself. The registration will also not cover the activities described in the work that are procedures, processes, or methods of operation, which are not subject to copyright protection.
Circular 33 continues with two examples:
Jules Kinder submits an application to register a cookbook, Pie in the Sky. In the “Author Created” field of the application, Kinder asserts a claim in “text, photographs, and compilation of ingredients.” Each recipe contains a list of ingredients, instructions for making a pie, and a photograph of the finished product. The claim in a “compilation of ingredients” will not be accepted because there is no copyrightable authorship in a mere listing of ingredients. Since this claim is not acceptable, the Office may communicate with Jules Kinder to limit the extent of the registration to the text and photographs only.
Paulina Neumann submits an application to register a recipe for Caesar salad dressing. In the “Author Created” field, Neumann asserts a claim in “text.” The work consists of a list of eleven ingredients with the following instructions: “(1) puree anchovies, garlic, Dijon, egg yolks; (2) drizzle oil in gradually to emulsify; (3) add lemon, parmesan cheese, salt, pepper, Worcestershire and tabasco sauce.” The Office will refuse registration for this work, because the list of ingredients is uncopyrightable, and the instructional text contains an insufficient amount of creative authorship.
Circular 33 is accessible here.
Trade Secret Protection and Family Recipes
Trade secret protection is well-suited for recipes, primarily due to the unique nature of culinary creations. From a scientific/inventive standpoint, recipes are usually lacking from a patentability standpoint. However, recipes often constitute a central part of a food business’s identity and competitive advantage, especially in industries like restaurants, bakeries, and food manufacturing.
Unlike patents, which require full public disclosure and are time-limited, trade secrets offer protection without disclosure, allowing the recipe to remain confidential indefinitely. This indefinite protection is crucial for recipes that are signature to a brand’s identity and success, such as the secret blend of herbs and spices in KFC’s fried chicken or the formula for Coca-Cola (see above).
Trade secret protection does not involve complex registration processes or the legal expenses associated with patent applications. By treating a recipe as a trade secret, a person or business can maintain its rights in the market. However, this requires stringent internal controls to prevent unauthorized disclosure, such as limiting access to the recipe (i.e., the recipe is shared on a need-to-know basis; it is not shared on the Internet), using non-disclosure agreements with those who access the recipe (e.g., friends, family, employees), and other security measures (e.g., password encryption versus leaving it available in a public space).
Conclusion
Protecting and preserving holiday recipes is an act of love and respect for one’s heritage and family history. If you have a recipe or other trade secret that you would like to discuss with an intellectual property attorney, you can schedule a consultation here.
