Generally US copyright
on recipes is thin to nonexistent and sometimes complicated. As Saige
notes that while listing the quantities of ingredients is not copyrightable, what is copyrightable is the "author's original and significant literary expression in the form of an explanation or directions." For example, I can't copyright the idea of making a drink from 2 oz of tequila
, a half-cup of pineapple juice
, two splashes of Fanta
lemon a couple of cups of crushed ice and dress them up with three sprigs of mint. I can, however, copyright the name of the drink and the title along with a narrative or depiction of how refreshing this combination is on a hot summer afternoon. Like Melt Summer Heat with a Refreshing Lometa Smoothie
. I can also copyright a detailed description of my favorite way to mix the ingredients together, and why I do it that way.
For the Fourth of July I could have a barbeque and serve my Lometa Smoothies. Toss it all together in the blender mix it on the"cream" setting for 35-45 seconds and garnish with mint. Some may even ask me for the recipe and make their own, but soon discover that they aren't as tasty as ones I served at the celebration. "How come," they might ask? I could say I have a secret ingredient. Now copyright extends further into intellectual properties. Examples of intellectual property include inventions, company and product names, and ways of doing business, just about anything else that gives a commercial advantage over marketplace rivals.
I would be lost if I didn't have a sprig of mint in my iced tea so in this instance I might have used a special mint I grow in my garden especially for my Lometa Smoothies. There are all kinds of mints in the world in a vast and dizzying array of flavors, everything from one with a banana-like scent, to a tiny-leafed, creeping mint with an astonishing menthol aroma called corsican mint, but the most likely mint I would harvest from my mint garden would be grapefruit mint since it has a spearmint flavor with strong grapefruit overtones and would blend well with the overall citrus fruit flavors in my delightful desert drink. Now I have a fashioned a trade secret , another form of intellectual property.
There are three reasons for protecting intellectual property, to commercialize inventions and innovations, to protect the products of your company's hard work, and to protect against lawsuits. So how do I protect my recipe? By limiting access to it. If I want to maintain my recipe as a trade secret, it could not be shown unless the recipient signs a trade secret or confidentiality agreement acknowledging that they are aware of the fact that the recipe is to be treated as a trade secret, and agree not to divulge or use it for their own benefit without consent. If my secret ingredient is divulged, it could have serious consequences for Lometa Smoothies, Inc.
Since I have a secret ingredient I wouldn't register the recipe, because then it becomes a matter of public record, but if it was popular enough for a small fee I could register the name Lometa Smoothie as a trademark then sell it down at the Circle K right next to Bartels & James Strawberry Daiquiris and maybe the next time Dan makes his Frito pie there he could pick one up.
People who have been clever about writing down their recipes in the form
of a "literary" works have oftentimes made lots of money. Cookbooks are
protected by copyright, which occurs automatically upon creation. Of course I would have to come out with a best selling cookbook probably called Lometa's 70 Smoothie Sensations and that would be copyrightable. One out of the ordinary copyright regulation with regards to cookbooks is that if someone copies an entire cookbook, even though they haven't infringed upon the copyright of the individual recipes, they have infringed upon the copyright of the collection.
Suppose that over a period of time people noticed that those who drink a Lometa Smoothie have almost never had coccidiomycosis and medical research reveals that some enzyme in the grapefruit mint from my little mint patch prevents the fungus infection from invading the human body. I could get my Lometa Smoothie patented. So even though a recipe for a basic fruit smoothie would not be patentable. "A patent covers an "invention" that results in a new, non-obvious, useful article or process." As a result a "recipe" for a breakthrough drug that prevents an illness could be patentable. One copyright expert relates further that a recipe "that has no calories, no fat, stays fresh for a year at room temperature and tastes great might be patentable."
Hey it could happen! There is a widespread misconception that only large companies need to be concerned about protecting intellectual property assets. This is probably due to the reality that lawsuits involving these companies are the cases that usually draw media attention. Perhaps the most famous and carefully guarded trade secret in history is the Coca-Cola formula. American, John Pemberton is said to have mixed the components absolutely by chance in the last century and the recipe of Coca-Cola has so far been considered as the most vigilantly protected secret in the world kept in a safe somewhere in the United States. A few years ago an article appeared in a newspaper concerning a disgruntled heir to the Coca Cola family and claims he has access to the formula and wants to sell it. Another lawsuit that was in the news during the fall of 2000 involved the U.S. 3rd Circuit Court of Appeals when they were called upon to "sort out a tangle of international law, history and family legend to decide who should control vodka's most famous name in America." Dubbed Smirnov vs. Smirnoff it's an intriguing intercontinental tale of a black sheep scoundrel of an uncle who claimed to be making its vodka according to the "secret recipe" and a quest to regain control of the Smirnoff name to allow a Russian company to sell its brand in the United States.
UDV North America, better known as the distilling giant Heublein Inc., which popularized vodka and made Smirnoff the best-selling brand of vodka in the world, says it owns the name. The company says it acquired the Smirnoff name in 1934 when Heublein bought it from Russian émigré Rudolf Kunett.
Kunett, they said, had bought the brand from an impoverished Vladimir Smirnoff, one of the five children of founder Pyotr Arsenyevitch Smirnov who had left Russia before the revolution and had altered the spelling of his name.
Boris Smirnov, great-grandson of the founder, disagrees. He heads the Russian family, which re-established a vodka distillery in Moscow after the Soviet Union collapsed.
Smirnov is now a best-seller in Russia and a competitor for the U.S. import, Smirnoff.
Smirnov, in the 1995 lawsuit against Heublein, said Kunett was a victim of a con by great-great Uncle Vladimir, a "rogue" and black sheep of the family who never had the family name to sell.
In other recipes rows of renown one centers around Colonel Sanders' secret recipe for his original Kentucky Fried Chicken. Harland Sanders came up with the famous recipe in the late 1930s for Sanders Court and Café, his roadside eatery in Corbin, Ky. Back then, the motel and restaurant business seated 142 people, by 1998 there were more than ten thousand Kentucky Fried Chicken stores with earnings around $20.6 billion.
In the 1970's Tommy and Cherry Settle purchased a white clapboard home from Colonel Sanders and discovered " a dusty, 1964 leather-bound date book in the basement of the home while sorting some old boxes." They alleged that in the book was a handwritten memo, purportedly by the Colonel, and it contained eleven herbs and spices in specific percentages. Wanting to sell it at an auction house the Settles contacted the Tricon Global Restaurant Corporation, which currently owns KFC to see if it was authentic. The corporate lawyers "took it very seriously" and filed a lawsuit to "protect the quality of our product." In January 2001 ABCNews.com reported:
"(Tricon) is fervent in its efforts to keep the recipe secret, (attorney) Melillo said. The company buys spices from different vendors, so no one vendor can ever add it all up.
KFC officials make the few employees who do know the recipe sign confidentiality agreements, and the company goes to court when the safety of the secret is threatened.
KFC sued the Settles to get the diary they thought contained the secret recipe. As the diary was seized and placed in a vault at the county courthouse in Shelbyville, lawyers informed the Settles that the recipe was "intellectual property" Tricon's intellectual property. The Settles also were warned to drop any plans to sell the recipe, or even reveal it.
"(It was) interesting that they put a lawsuit on us instead of just looking at the diary," said Tommy Settle.
Today, KFC officials looked at the diary and breathed easier and called off their attorneys.
"The original recipe is safely locked in our vault at KFC headquarters, and we did examine (the diary)," said Melillo.
"The Colonel's original recipe has 11 herbs and spices. This falls about five herbs and spices short. An interesting part of it (is)" it (the handwritten note) was in a diary dated 1964, and the colonel's original recipe was developed in 1939. So we're a few years off from it possibly being the secret recipe."
Is Colonel Sanders' famous recipe of eleven secret herbs and spices now in the public domain
? Patent Cafe Magazine raised the question in their Patent Law & Policy Forum. One reply in part was:
"This is, of course, not a legal opinion, but I think the finders of the recipe are the owners of the recipe and the paper upon which it is written. The company's actions lend credence to the fact that this IS the true KFC recipe. The company would have been better off saying it is an early version of the recipe that was later developed into their successful business. "
No one can really know for sure. Tricon Global Restaurant Corporation could be bluffing and by leaving it up in the air for speculation it's probably the best strategy to protect their intellectual property.
I would like to especially thank m_turner for his suggestions and ideas that were very inspirational in putting together this write-up!
ABCNEWS.com : KFC Drops Suit Over Original Recipe:
IGDA - Famous Last Words - Sep02:
Library of Congress:
Patent Cafe Magazine:
Protecting Your Corporate IP Position: