No matter how you say it…

02.25.15

The Copyright Office has been very clear, copyright law does not protect recipes that are ​“mere listings of ingredients.” However, copyright protection may extend to something like a cookbook that has substantial literary expression, such as descriptions, explanations, or illustrations, accompanying the recipes.

Over the years, chefs have argued that their recipes are no mere listings. They argue that the food they create is an artistic expression worthy of protection. In 2006, an article in Food and Wine discussed the approach of Homaro Cantu of Moto restaurant in Chicago to protect his food creations.* In spite of this bright line, a restaurant owner in Cleveland, Ohio, challenged a competitor’s possible use of the restaurant’s recipes. The plaintiffs, Tomaydo-Tomahhdo LLC, Ketchup to Us, LLC, Tomaydo-Tomahhdo Express, LLC, Mise-En-Place, Inc., and Rosemarie I. Carroll, brought a lawsuit against defendants, George Vozary, Clean Plate, Inc. dba Caterology, and Larry Moore, claiming copyright infringement because the defendants are using the same recipes and creating the same dishes and menu items as those served at Tomaydo-Tomahhdo.**

Carroll and Moore jointly owned several restaurants, including Ketchup to Us dba Tomaydo-Tomahhdo. During this time, Moore developed the menu items and recipes. In 2007, Carroll purchased Moore’s interest in the restaurants, and in 2008 and 2011, Moore opened restaurants serving similar foods. After Moore’s departure from Tomaydo-Tomahhdo, Carroll created and copyrighted the ​“Tomaydo Tomahhdo Recipe Book.” 

Unsurprisingly, the court found that the Carroll and the rest of the plaintiffs do not hold any copyright in the recipes, and Moore and the other defendants did not violate any of the plaintiffs’ intellectual property rights by serving similar (or even identical) food. The court reasoned that ​“to the extent plaintiffs have a valid copyright in the recipe book, the copyright protection extends to the layout and creative expression contained in the book. It does not extend to the recipes themselves.” Recipes are essentially a recitation of facts, and copyright does not extend to facts. A factual compilation, such as a cookbook, is eligible for copyright if it features an original selection or arrangement of facts, but the copyright is limited to the particular selection or arrangement, but not the facts themselves. To make it absolutely clear, the court stated that ​“it is readily apparent that plaintiffs contend that defendants are wrongfully creating menu items by using plaintiffs’ recipes. As set forth above, however, the recipes themselves are not copyrightable and thus, any use of the recipes is not infringement.”

Ina Garten, best known as the Barefoot Contessa, is trying a different tact to protect specific recipes. On February 17, 2015, she and her companies (“Barefoot Contessa”) filed suit against O.F.I. Imports, Inc. (“OFI”) claiming trademark infringement and breach of contract.*** At first, Barefoot Contessa had a licensing agreement with a company to allow use for the production and sale of frozen dinners of ​“proprietary recipes and quality standards supplied by Barefoot Contessa” following the approval of the products by Barefoot Contessa for frozen dinners such as ​“beef stew bourguignon,” ​“sesame chicken & noodles,” ​“shrimp scampi & linguine,” ​“creamy chicken stew,” ​“garlic & ginger chicken,” ​“jambalaya,” ​“pasta carbonara with pancetta,” ​“penne pasta with five cheeses” and ​“tequila lime chicken.” When the original licensee went out of business, Barefoot Contessa terminated the license. OFI purchased the other assets of the original licensee, and OFI and Barefoot Contessa entered into an agreement allowing OFI to sell off existing inventory of frozen dinners for a limited period, subject to OFI’s explicit acknowledgment agreement that OFI would not manufacture or market any new product, and that it would promptly destroy any items, including packaging, using Barefoot Contessa’s intellectual property. Barefoot Contessa did not enter into any other license agreement allowing OFI to use its trademarks. OFI came out with a new line of frozen dinners called Contessa Chef Inspired using almost identical packaging and meals. Although Barefoot Contessa states that ​“the vast majority” of the meals are the same dinners using the same recipes as the dinners previously manufactured under the terminated license, they wisely did not claim any protection in the recipes themselves. 

Therefore, how Carroll tried to say it, recipes are facts, and facts aren’t copyrightable. If one wants to protect recipes, contracts and trademark protection are a much better bet.

*Mr. Cantu received two patents 1) Pat. No. 7,690,294 Cooking and serving system and methods and 2) Pat. No. 7,307,249 System and methods for preparing substitute food items.

** Tomaydo-Tomahhdo, LLC v. Vozary, 2015 U.S. Dist. LEXIS 10532 (N.D. Ohio), Case No. 1:14 CV 469.

***Barefoot Contessa Pantry, LLC, Ina Garten, and Ina Garten, LLC v. Aqua Star (USA) Co., Contessa Premium Foods, Inc., O.F.I. Imports, Inc. and Red Chamber Co., Case No. 15 CV 01092 (S.D. New York).

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