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In April 2012 FDL reported on the case of a Chicago bakery owner who threatened to sue her chef after she decided to leave the job, taking the company's secret recipe for Cinnamon Bombs with her.
The case brought up a number of questions about recipe ownership, culinary copyright and protecting ideas in the kitchen. Fortunately for the owner and chef, the case was settled out of court and the recipes returned. However, the question of how to protect recipes and whether a culinary form of copyright exists still remains.
Can a recipe be protected under current UK or European copyright laws? Could the creator of a dish protect their innovation using patent protection? Or should the tried and tested route of a heavily guarded trade secret style approach be adopted to protect culinary creations? With these questions in mind FDL spoke with a number of legal professionals to try and see what options, if any, are available for culinary copyright.
How to Protect a Recipe under Copyright
Copyright works to protect the way a recipe is recorded in writing and not the way it is actually made. If you record and publish a recipe and someone then looks to re-copy that recipe without any new literary expression being added, this could be deemed as a copyright infringement. However, this does not stop someone taking the recipe, cooking it in their restaurant, changing the name and claiming it as their own.
Copyright protects certain categories of works including literary,dramatic and musical works. Assuming that a person creating a recipe has done so with a minimal level of skill and effort in making it original then in principle copyright can exist in a recipe as a literary piece of work. However, a chef in most cases is not looking to protect the written form but the end product. Andrew Charlesworth, a legal expert from Bristol University, explains one of the other major difficulties in culinary copyright, "The key problem for granting copyright protection to recipes is the issue of originality versus the ethos of cookery experimentation and development. While some recipes may be original in the sense of deriving wholly from the imagination of the chef/creator/author, the vast majority surely are not. Cookery as an art depends upon borrowing and tweaking and fusing the work of others in a way that is inimical to the application of Intellectual Property Rights meant for books music or dramatic works."
A Patent protects the process involved in production, a new method or technology that is harnessed during recipe creation. The London based law firm Briffa say, "It may be possible to protect a recipe by filing a patent if you have come up with a new method of doing something, but it must not be obvious. So, Heston Blumenthal's way of freezing things may possibly be patentable. Combining X, Y and Z to produce something new may be patentable too, however, putting known ingredients together with no new and inventive technical effect would not be patentable."
For example, Sarah Bazaraa, an IP Solicitor for the legal firm Pannone, presented FDL an interesting description of a well known dessert, "A composite confection product, which comprises a multiplicity (for example, at least four) of thin superimposed layers of extrudable aerated confection material...."
This is some of the patent that was filed and granted for Viennetta ice cream. Using patent laws the company was able to protect their recipe by patenting the process involved in the production of the dessert. A much stronger way of protecting a recipe than copyright, but one that Sarah explains does have certain drawbacks, "Patents only last 20-years and they are given in return for disclosing the process involved. After 20-years it's fair game and anyone can use your information provided in the patent application, this is why some companies like KFC and Coca Cola choose to take a different route in protecting their recipes."
Very few people know the Colonel's secret chicken recipe, even fewer know the hidden secrets of Coca-Cola's trademark flavor, however, none of these recipes are protected by patent or copyright law. In these cases KFC and Coca-Cola both make all employees who come into contact with the recipe sign non-disclosure agreements, in turn these people can then be taken to court and sued for damages or an account of profit if they decide to reveal the recipe. This is a difficult task to manage but may be the best option to take for people and companies who want try and protect recipes for longer than the 20-year protection a patent provides.
At least within the current US and European laws it seems there is no specific route for culinary intellectual property protection. There are a number of options but are they really the way to help the industry develop? If Heston Blumenthal had patented the process of producing Bacon and Egg ice cream, or Ferran Adria locked down the techniques of his wonderful parmesan foam, imagine how the food landscape would look. It might seem like a nice idea to protect a kitchen creation but this could be very detrimental to the industry.
It's unclear how much development there will be in the world of culinary copyright and as Sarah Bazaraa states, "There's not much debate at the minute surrounding this topic" but it is a field that could well change with technology. Sarah went on to tell FDL that it may be feasible in the 'not-too distant' future to protect scents and tastes using trademark laws subject to companies and the law finding an acceptable way for these to be "graphically represented." That's something FDL will discuss with Sarah in the next installment of Culinary Copyright as we also look to the chefs for their opinion and take a look at how the US system differs from those in place in the UK and Europe.