A US Court of Appeal has upheld a judgement that a restauranteur accused of copying a recipe published in the recipe book of a competitor had not committed copyright infringement. Tomaydo – Tomahhdo LLC v George Vocray et al, Case No 15-3179

Granny makes the best chocolate brownies...but does she own the intellectual property for her recipe?

This is similar to the question recently before the Sixth Circuit of the US Court of Appeal. Mr Larry Moore and Ms Rosemarie Carroll were the co-owners and founders of the Tomaydo Tomahhdo restaurant that built its success on the food created by Mr Moore through a "trial and error" method. Mr Moore subsequently sold his stake and all of his rights in the business to Ms Carroll, including his rights to a recipe book developed by the business.

Subsequently, Mr Moore opened a new catering business, Caterology and Ms Carroll accused Mr Moore of copyright infringement for recipes used at Caterology.

Ms Carroll argued the "trial and error" basis meant recipes were compiled in a specific manner and this gave them originality and thus copyright protection.

Court Decision

The Court confirmed copyright protection is only afforded to original works and this required a creative step in the creation of a work. It held that the recipe book itself would be protected by copyright in as much as it extends to the layout and presentation of the book and the recipes but not to the actual make-up of the recipes as there was no originality in the recipes and no creative step had been taken.

What does all this mean for my Granny's brownie recipe and such rights in the UK?

There's no doubt that cooking and food is a hot topic at the moment. The Great British Bake Off has barely cooled its ovens when Masterchef: The Professionals has us salivating once again. The question is then whether Tomaydo would have been decided differently in Scotland than it was in Cleveland?

The answer to this is that it almost certainly would not have been. Copyright in the UK does protect literary works, therefore the recipe as published in the cookery book may have been subject to protection and certainly anyone who made exact copies of the recipe book would be infringing copyright. However if anyone takes a particular recipe, follows it, and serves the dish as their own in a restaurant they will not be liable for copyright infringement as there is no protection of the completed dish. In addition, unless the recipe is copied in text and style there is no protection of the actual recipe i.e. the instructions for baking brownies will not be protected.

The case of Tomaydo highlights again that intellectual property rights will not prevent any member of the general public from trying to copy Nadiya's Showstopper or Michel Roux Jr's signature soufflé...or even Granny's brownies! The situation might be different for the copying of the recipe in published form. Where a recipe has been written down it becomes a literary work and protected by copyright. Although anyone is welcome to attempt to make Granny's brownies, should they find the recipe for the brownies on the BBC website they could be infringing copyright if they copied the recipe directly on to their blog for their followers to see. It is important to recognise the distinction between there being no copyright protection in the completed dish and there being a level of copyright protection in the written recipe itself.

© MacRoberts 2015

Disclaimer

The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.