Key point 9-05.08. Copyright infringement occurs when one violates any one or more of the exclusive rights of a copyright owner.
* In a case that will be relevant to any church that publishes a cookbook, a federal court in Texas addressed the question of what recipes can be placed in a cookbook without violating the copyright law. Here’s an interesting question to ponder, "Does our church face potential liability for copyright infringement as a result of publishing a church cookbook?" The fact is that many churches have published cookbooks. While most of the recipes are solicited from congregational members, there seldom if ever is any investigation by church leaders into the origin of these recipes. What if a member’s recipe came from a copyrighted cookbook? Does the church’s inclusion of that recipe in its own cookbook constitute copyright infringement? Is it a defense if proper credit is given to the original author? A federal court in Texas addressed similar questions in a recent case.
An author ("Judy") published a cookbook containing a copyright notice. The copyright was later registered with the U.S. Copyright Office. The book became a huge success. Some years later, an internet magazine began publishing verbatim recipes from the cookbook without Judy’s knowledge or consent. At about the same time, another publisher printed a cookbook that contained several verbatim recipes from Judy’s copyrighted cookbook. Many of these recipes were credited to the internet magazine. After discovering these copyright infringements, Judy sued the internet magazine as well as the other publisher (the "defendants") for copyright infringement. She identified twenty recipes that she claimed were identical to those stated in her cookbook. Each of these recipes shares the same or a similar title, listing of ingredients, and directions for preparation, as well as using other miscellaneous identical language. Among the highlights from this tempting list are "Armadillo Eggs," "Cattle Baron Cheese Dollars," "Gringo Gulch Grog," and "Frito Pie."
The defendants asked the court to dismiss the lawsuit on the ground that cooking recipes are mere "processes and procedures" and therefore not copyrightable pursuant to the clear language of section 102(b) the Copyright Act, which specifies that "in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." In support of this argument, the defendants pointed to a letter from the Copyright Office stating that "mere listings of ingredients as in recipes, formulas, compounds or prescriptions are not subject to copyright protection [and] copyright protection does not extend to names, titles, short phrases, ideas, systems or methods."
The court rejected the defendants’ request to dismiss the lawsuit. It observed,
The court agrees with defendants’ assertion that the clear language of [the Copyright Act] denies copyright protection to mere procedures or processes. Although defendants cite language from [Copyright Office] indicating that recipes are uncopyrightable, this letter is not authoritative. More importantly, defendants … conveniently omit the following italicized language: "Mere listings of ingredients as in recipes, formulas, compounds or prescriptions are not subject to copyright protection. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a combination of recipes, as in a cookbook, there may be a basis for copyright protection." Thus, contrary to defendants’ assertion, the statement issued by the [Copyright Office], to whatever extent it is instructive, does not declare that recipes are per se uncopyrightable.
The court observed that "there still exists a genuine issue as to whether or not the copied recipes are sufficiently expressive to warrant protection under the Copyright Act." It noted that recipes may warrant copyright protection in a variety of circumstances, such as where the recipe includes "suggestions for presentation, advice on [beverages] to go with the meal, or hints on place settings with appropriate music," or where the recipes are accompanied by "tales of their historical or ethnic origin."
The court concluded,
There exists a genuine issue … as to whether or not the recipes procured from [Judy’s original cookbook] represent mere unprotected facts or actual protected expression. Of the twenty recipes identified by defendants as being identical or similar, the court finds that at least a few contain statements that may be sufficiently expressive to exceed the boundaries of mere fact …. [The recipes in Judy’s cookbook] are infused with light-hearted or helpful commentary, some of which also appears verbatim in [the internet magazine recipes]. For example, the recipe for Cherokee Chicken states in part: "Heat oil in heavy skillet. Add sugar and let it brown and bubble. (This is the secret to the unique taste!)" …. Similarly oriented anecdotal language also appears in [other] recipes. In other instances, [Judy’s] suggestions on the presentation of food also appear in defendants’ publications …. Based on this small sample of recipes alone, the court cannot conclude as a matter of law that the material allegedly copied from [Judy’s cookbook] is nothing more than mere recitations of facts that are not entitled to copyright protection. Her recipes contain more than mechanical listings of ingredients and cooking directions, and as such, the court will not [dismiss Judy’s lawsuit] on the unqualified notion that recipes are uncopyrightable.
Application. Does your church publish cookbooks? If so, here are few lessons to be learned from this ruling:
1. Recipes are not necessarily uncopyrightable. If they merely recite "mechanical listings of ingredients and cooking directions" they probably are uncopyrightable according to section 102(b) of the Copyright Act. However, where a recipe is accompanied by literary expression in the form of an explanation, background, anecdote, commentary, or suggestions on companion foods or beverages, there may be a basis for copyright protection.
2. Be sure that the person who serves as the editor of your cookbook understands that recipes cannot be taken from copyrighted cookbooks, at least to the extent that the recipes contain the kinds of literary expression described above.
3. When soliciting recipes from members, consider using a simple submission form that contains the author’s name along with the recipe and cooking directions, and any anecdote or collateral information the author would like to share. The form should ask for the source of the recipe. This will go a long way in protecting the church against any claim that it committed copyright infringement by including a copyrighted recipe in its cookbook. Of course, if a submission form states that a recipe came from another cookbook, then the editor can check on the copyright status of the other cookbook and make an informed judgment on whether or not to use the recipe. If the church plans on copyrighting its own cookbook, then be sure to insert a statement in the submission form to the effect that "in consideration of my recipe being published in the church’s cookbook, I assign to the church the right to publish my recipe in the cookbook and in any future edition or version of the cookbook in any medium."
4. You should insert a copyright notice on the title page of your cookbook. An example would be, "Copyright 2002 by First Christian Church, Anytown, Texas. All rights reserved."
5. Two final points. First, giving credit to a copyrighted cookbook in which a recipe occurs is no defense to copyright infringement. Second, copyright infringement claims generally are not covered under a church’s liability insurance policy, and so this is an issue that should be taken seriously. Barbour v. Head, 2001 WL 1677108 (S.D. Tex. 2001).
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