Canada: You Say Tomaydo , I Say No Copyright Infringement: Recipe Book Not An Original Compilation

Last Updated: October 29 2015
Article by Peter Henein

In the recent case, Tomaydo-Tomahhdo, LLC, et al. v. George Vozary, et al., the United States Court of Appeals for the Sixth Circuit held - in a dry, yet flavourful decision - that a recipe book was not a compilation entitled to copyright protection.

The plaintiffs in this case sued their former partners in a restaurant, Tomaydo-Tomahhdo, for copying a number of recipes at the defendants’ delivery catering business. The plaintiffs claimed the recipes were developed for the restaurant with a group of taste testers and perfected through trial and error. In 2007, when the parties parted ways, the plaintiffs purchased the defendants’ interest in the business and signed a share purchase agreement which specified that the defendants would return “all originals and copies of … menu files and development ideas, recipes (current and historical) and training tools (picture boards, build sheets, prep. lists, and master order guide).”

When the defendants allegedly began using the Tomaydo-Tomahhdo recipe book in their new catering business, the plaintiffs filed suit, claiming copyright infringement, among other causes of action. As set out in the lower court decision, the plaintiffs claimed that the defendants’ menus, offerings, recipes, and presentation of food were “virtually” identical to the plaintiffs’ copyright. The defendants sought summary judgment on the copyright infringement claim. The District Court granted the motion for summary judgment.

On appeal, the Court noted that while facts cannot be copyrighted, compilations of facts generally can be. The Court described a compilation as a “work formed by the collection and assembling of pre-existing materials or of data that are selected, co-ordinated, or arranged in such a way that the resultant work as a whole constitutes an original authorship.” When a compilation’s selection and arrangement are produced in an original way, the court noted, the compilation is entitled to copyright protection. However, the copyright protection extends only to the original aspect of the compilation; it does not protect the underlying unoriginal elements.

The Appellate Court began its analysis by eliminating the unoriginal elements (as they are unprotected) and then considering “whether the allegedly infringing work is substantially similar to the protectable elements of the original,” analyzing this question from the intended audience’s point of view.

The Court held that the recipes themselves do not enjoy copyright protection. The list of ingredients is merely a factual statement, and facts are not copyrightable. Furthermore, a recipe’s instructions, as functional directions, are statutorily excluded from copyright protection in the United States. Accordingly, the plaintiffs were required to demonstrate that their recipe book, as a compilation, was original. The Court cited a previous decision in which it was pointed out that this could include scenarios where the authors chose to “lace their directions for producing dishes with musings about the spiritual nature of cooking or reminiscences they associated with the wafting odours of certain dishes in various stages of preparation.” While the plaintiffs argued they deliberately selected and arranged the menu items, they never identified what was original and creative about their process. Their description merely characterized how recipes were developed and further perfected.

The Court concluded that, as a matter of law, the plaintiffs had not shown that any aspect of their recipe book was original and would therefore enjoy copyright protection. Accordingly, the Court held that the defendants could not have violated the plaintiffs’ proprietary rights.

The Canadian Perspective

Compilations are similarly protected in Canada pursuant to section 2 of the Copyright Act, which defines a compilation as a work resulting from the selection or arrangement of literary, dramatic, musical or artistic works or parts thereof, or a work resulting from the selection or arrangement of data. Subsection 5(1) of the Act provides that, subject to certain conditions, copyright subsists in every original literary, dramatic, musical and artistic work. The Act defines “ever original literary, dramatic, musical and artistic work” as including a compilation of such work.

While the law on compilations is not fundamentally different in Canada, the issue of the copyrightability of recipes has been explicitly addressed by the U.S. Copyright Office, which notes as follows on its website:

Copyright law does not protect recipes that are mere listings of ingredients. Nor does it protect other mere listings of ingredients such as those found in formulas, compounds, or prescriptions. Copyright protection may, however, extend to substantial literary expression – a description, explanation, or illustration, for example – that accompanies a recipe or formula or to a combination of recipes, as in a cookbook.

There has been no similarly definitive statement on this issue by the Canadian Intellectual Property Office. Still, aspiring Canadian chefs need not take the decision in Tomaydo-Tomahhdo with a grain of salt. It appears that the result would be the same if the case were to be tried in Canada. A mere list of factual statements (e.g., a pinch of paprika and a smidge of cumin) would not constitute a sufficiently original selection and arrangement to attract protection. However, an original selection and arrangement of that same information – perhaps with a personal anecdote thrown in for flavour – might well attract the necessary copyright protection in Canada.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Peter Henein
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