With the growing popularity of food blogs and social media, many creators and cooks wonder whether their recipes are protected by copyright law. An analysis of this issue helps clarify which elements of recipes may be eligible for legal protection. As a legal counsel, I present a few pointers on this subject below.
Culinary Recipes and Copyright Law
Under the Act on Copyright and Related Rights, works that constitute a manifestation of creative activity of an individual character are subject to protection. However, the matter does not end there. Discoveries, ideas, procedures, methods, and principles of operation are excluded from copyright protection. A simple culinary recipe consisting of a list of a few ingredients and technical preparation instructions would likely be treated as a procedure or method. This means it would not be eligible for copyright protection.
Most of us surely have a recipe—for cookies, for instance—in our personal collections that was passed down by a mother or grandmother. Would such a recipe be protected by copyright law? It is doubtful. The situation may differ, however, for complex recipes. Generally speaking, the taste of a dish itself is not eligible for copyright protection, if only because of the difficulty involved in identifying it. Nevertheless, some have attempted to register taste as a trademark. This is a highly complex undertaking due to the requirements for representing such a trademark in the trademark register; the mark must be represented in a manner that is, among other things, clear, precise, intelligible, and durable. These requirements stem from the so-called "Sieckmann criteria," derived from a ruling by the Court of Justice of the European Union.
When can a recipe be protected?
A recipe is more than just a simple list of ingredients and preparation instructions. Recipes can be elaborate and contain additional content, particularly given the current level of activity among food bloggers. The specific way a recipe is expressed may be eligible for protection, provided it possesses a creative and individual character. This may be the case when a recipe includes an engaging description of the dish's preparation, the author's personal commentary, or perhaps catchphrases or unique turns of phrase characteristic of the author. Recipes are frequently found in cookbooks, which, as a whole, are generally protected by copyright law.
Are photographs of dishes protected by copyright?
This brings us back to the general subject of the protection of photographs, which—as works—can be protected by copyright. Photographs of prepared dishes can reflect creative effort and thus qualify for copyright protection, provided they meet the criteria of originality and individuality. It all depends on the specific case. A simple snapshot does not necessarily possess a creative character. Conversely, a photograph featuring a deliberate composition and appropriately "processed" using available software may be regarded as a creative work. It makes little difference whether the photograph was taken with a smartphone or a professional camera; the technical capabilities of such devices can be comparable, and what ultimately matters is the author's creative contribution. If a photograph is protected by copyright, one must obtain a license from the author to use it legally on a blog.
The protection of food photographs created using generative AI solutions remains a separate issue. Since such images are not created by a human, copyright protection is generally ruled out in most cases; however, views on this matter vary.
As you can see, copyright protection for a culinary recipe is not a foregone conclusion. In principle, simple recipes consisting of a brief list of ingredients and a description of the procedure do not qualify for protection. However, creative and original descriptions within the recipe, photographs of the dishes, and unique methods of presentation or display may be eligible for such protection. It is therefore advisable to ensure that published culinary content possesses an individual and original character; this increases the likelihood of successfully demonstrating that it is protected by copyright law.
In case legal assistance is needed please contact me with law firmIt is worth considering an appropriate intellectual property protection strategy.
*Photo by Alyson McPhee on Unsplash.
