Are Recipes Copyrightable? – Rights Clearance Observations about Julie & Julia, Deceptively Delicious, and The Sneaky Chef

I
recently listened to – and enjoyed – the audiobook version of the memoir, Julie & Julia: 365 Days, 524 Recipes, 1
Tiny Apartment Kitchen.  It’s the story of Julie Powell, an aspiring
actress who works in an unfulfilling temp. secretary job and who struggles for
some direction in her life as she approaches her 30^th birthday.

Powell takes on the
project of cooking every recipe in Julia Child’s Mastering the Art of French Cooking. Her hope is to use cooking as a therapeutic
method that will save her soul and rescue her life.  She shares her progress in a blog which soon
becomes wildly popular and generates an offer from Little, Brown and Company to
write a book about the project. Powell’s
Julie & Julia has sold over 100,000
copies.

Recipe Copyright Issues in Julie & Julia

It’s
a professional hazard of entertainment attorneys to contemplate rights issues
as we watch movies, read books, and view other means of media. The first rights question occurring to the
reader might be the use of Julia Child’s recipes in Julie Powell’s blog and
book.

Actually, I don’t
see a copyright issue with respect to Powell’s use of the recipes. Processes and
procedures are not copy­rightable. A recipe that simply lists ingredients and
basic cooking directions qualifies as a process or procedure and is not
copyrightable. 

In
Julie and Julia, Julie Powell doesn’t
recite many of the Mastering the Art of
French Cooking recipes verbatim but talks about making the recipes in
general and her missteps along the way. Julie may recite a sentence or two as she chronicles her journey through
the recipes. She talks about her professional frustrations, marital woes,
relationships with her family and friends. Even if Child’s individual recipes
were copyrightable, Powell’s use of the recipes seems to be a good candidate
for fair use.

The Case of Deceptively Delicious versus The Sneaky Chef

The limited
copyright protection for recipes is also why I am surprised by the pending
lawsuit concerning Jessica Seinfeld’s Deceptively
Delicious: Simple Secrets to Get Your Kids Eating Good Food.  In the book, Jessica Seinfeld, the wife of
comedian Jerry Seinfeld, explains how to hide nutritious vegetables in
traditional recipes so children will eat them. Missy Chase Lapine is the author of a similar cookbook, The Sneaky Chef: Simple Strategies for
Hiding Healthy Foods in Kids’ Favorite Meals. Earlier this month, Lapine
filed a copyright infringement lawsuit against Seinfeld. 

Even if Seinfeld “lifted”
the concept of hiding vegetables in food, Seinfeld would not be guilty of
infringing Lapine’s work. Again, that’s
because copyright does not protect concepts, processes, and procedures. Hiding vegetables in food so children will
eat them is a non-copyrightable concept or process. In order for copyright
infringement to apply, Seinfeld would have needed to copy some of Lapine’s
recipes almost verbatim. I haven’t yet
seen a copy of either book so I can’t comment on how similar Seinfeld’s recipes
are to those of Lapine.

So When Are Recipes
Copyrightable?

Note
that I said a recipe that simply lists ingredients and basic cooking directions
is not copyrightable.  It is possible for
a recipe to be copyrightable. If you
weave expressive elements into the recipe, it stands
a much better chance of being copyrightable. These elements might be sug­gestions
for presentation, advice on wines, accompaniments, music to complete the meal,
and information on the origin of the dish. For example, Sheilah Kaufman, one of
my colleagues from the DC Chapter of the Womens’ National Book Association, is
the author of over two dozen cookbooks and weaves editorials and commentary
about history into many of her recipes (www.cookingwithsheilah.com).

Back
to Julie & Julia. While I see no
copyright issues in Julie and Julia,
I do see other rights clearance issues raised by the book. I’ll discuss those in my next blog posting.