October 24, 2006
It seems like the question of whether recipes should be copyrighted has been stewing for a while, but it's a little startling to see copy protections printed on the food itself!
What a confused tangle this issue is though -- there's the question of whether to copyright or patent a recipe or the instantiation of a recipe (the food itself). There's the question of how much of the creative content of food is execution and how much is planning. There's the question of who owns the creative rights for the ingredients we're using to make our recipes (how do we feel about sampling?). And can people preemptively patent or copyright dishes?
No copying of food? Making your own yogurt with store-bought enzymes is out, I guess.
I'm waiting for a sports team to copyright the use of a specific color scheme or mascot.
I think you could still make your own yogurt... you just might have to pay a royalty or something.
I'm also wondering if there will be a floodgates effect -- the first person to copyright macaroni and cheese could stand to make a lot of cash...
random comment: reading a book just now that states that in ancient Rome, new recipes were the property of the "inventor" until one year after their first release -- the creator was due all profits associated with that dish during that time window.
http://suttonhoo.blogspot.com/2006/10/on-wine.html
It's pretty well established law that a list of ingredients is not copyrightable. The description of how to combine those ingredients is probably copyrightable.
As for patents, for a patent to stand up the invention has to be novel or new, nonobvious, and useful. It's likely Cantu can get a patent on his crumbly menu but only if no prior art has been demonstrated - only if no one has ever come up with the idea before.
Other recipes might be able to get a "design patent" for the final look.
Of course the rules for making a patent stand up don't seem to apply to getting one in th efirst place these days. The US PTO is woefully understaffed and outgunned by the millions of new patents filed every year. It's impossible for them intelligently evaluate even a fraction of them so they tend to err on the side of stifling innovation by granting the patent.
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