The Fresh Loaf

News & Information for Amateur Bakers and Artisan Bread Enthusiasts

Intellectual Property - Patents, Trade Secrets

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eastfield's picture
eastfield

Intellectual Property - Patents, Trade Secrets

 


 


I am new to this site and would value some guidance, so many recipes and formulations for great tasting breads. My question is are they all protected with patented or intellectual property   preventing enthusiast form producing the recipes on a large scale for manufacturing /retail use. Could I end up with a hefty lawsuit if I were to take the sourdough  or chick pea bread recipe and manufacture it for my local region?


 


Hope to hear from you shortly.

blaisepascal's picture
blaisepascal

Roughly speaking, there are 4 forms of intellectual property rights involved here that you don't need to worry about.


Copyright protects the particular expression of an idea, but not the idea itself.  For recipes, copyright does not prevent people from making or selling a product based on a recipe.  It may protect the text of the recipe itself, but it also doesn't prevent someone else from writing another, functionally equivalent, recipe for the same product.  Even so, to the degree that the expression of the recipe is purely functional copyright provides only limited protection.


Patents can protect ideas, but they are expensive, time consuming, and difficult to get.  They also require true novelty in the invention.  I sincerely doubt that there are any patented bread recipes that would be posted to this site.


Trademarks protect marks/names/etc used to identify a product as being affiliated with a particular maker.  Unless you market the product using someone elses marks or name, you should be fine.


Trade Secrets only bind those who were given the secret under condition of confidentiality, and are lost once the secret becomes generally known.  Nothing posted on a public forum is a trade secret, by definition.


 

emmsf's picture
emmsf

If you do a simple Google search for "can I copyright a recipe" you'll find quite a bit of informaton, including links to the U.S. Patent and Copyright office.  I'd suggest starting there.

LindyD's picture
LindyD

BTW, welcome to TFL, Eastfield.


If you find a recipe here or a formula in a book and decide to bake 40 loaves (or more) each day to sell to the public, no problem at all.  That has nothing to do with copyright, trade secrets, etc.


In fact, books by professional bakers such as Jeffrey Hamelman and Dan DiMuzio are essentially directed to other pros and include formulas for 20+ loaves.


The only time copyright comes into play is when a person publishes someone else's recipe verbatim, including the ingredients and the specific techniques, without the author's permission.  That can be construed as copyright violation.  If you think about it, giving away someone else's work product can have financial ramifications for the creator of the work.


In your case, you just want to bake lots of bread from published formulas - so bake away without worry!

suave's picture
suave

You are absolutely fine.  That is what recipes and cookbooks are for - to be used.  All IP issues that exist are related to reproduction.  But saying thank you to the author of the formula you found here would be a nice gesture.

Floydm's picture
Floydm

As far as I am aware you would only get into trouble if you reproduced a recipe that is commercially sold by another bakery and sold it under the same product name trying to cause confusion in the marketplace. Anyone can make and sell their own double stacked cheeseburgers with sauce but only McDonalds gets to sell Big Macs, right?  So if you took a recipe from here, adjusted it to meet your own tastes and production methods, and gave it your own product name I believe you'd be fine.

mimifix's picture
mimifix

My students always ask this question. For product sales, anyone may use any recipe found anywhere. No restrictions. Unless you steal a recipe from a locked safe, in which case you would be arrested for theft, not copyright infringement.


Mimi

lynnebiz's picture
lynnebiz

I'm not a lawyer (nor do I play one on TV, lol), but from my own research, I discovered that one cannot patent or copyright a recipe. That doesn't stop someone from claiming that their recipes or cookbook are copyrighted - but the reality is, it doesn't change facts - can't be done.


The reason is that recipes are seldom original in the first place, and there are subtle, slight changes that can be made. For instance, the difference between a 1/4 teaspoon and a 1/2 teaspoon might not make a big difference in the outcome - so how many versions of a recipe could one attempt to copyright?


Many so called orignal recipes are actually handed down through generations, and really belong to no one. Granted, some have new twists developed by the authors, but how can you prove that in a court of law?


I won't get into the moral aspects of any of this, since the OP didn't ask about that, and that's being torn to threads here already.

jaywillie's picture
jaywillie

While recipes, as formulas for baking, are not copyrightable per se, a cookbook is absolutely protected. That doesn't mean the recipes are protected, just the unique expression of those recipes as used in that cookbook. All artistic material, such as writing a cookbook, is protected by copyright in the U.S. as soon as it is completed. Whether the copyright is registered or not is another important legal distinction. (Registration is the process of telling the government, and thereby the legal system, that the work exists.)

onyxfox's picture
onyxfox

There are some good points here, just thought I'd add one finer point on the copyrighting of recipes, as it tends to come up often on cooking-enthusiast sites.  The part of a recipe that is not copyrighted is the ingredient list.  This is considered by copyright law to be a pure fact, and pure facts are not copyrightable.  (Even if they are published in a book.)  This means you are perfectly free to repost the list of ingredients for your favorite muffins on a web forum. 


What is often copyrighted in a recipe is the author's written instructions that follow the ingredient list.  These instructions are copyrighted whether they are published in a book, posted on a web forum by the author, printed on the back of the flour bag or scribbled on a notepad in the author's kitchen.


If you are planning to put a recipe into use commercially, I would suggest writing out the recipe instructions in your own words, and using THAT as a reference in your bakery.  Copying pages from a blog or out of books you own to tack up in your kitchen is okay under "fair use," but fair use typically falls apart as a defense if you are making money off the endeavor.


*Amanda  (ps - a long time lurker, first time poster, adequate baker)

mimifix's picture
mimifix

Eastfield asked if it was okay to produce any recipe for sale. The answer is yes.


But to point out a problem with some of our recipe posts, as per Amanda's comment above: It is definitely a copyright infringement to post recipe directions that are lifted from a cookbook, blog, newsarticle, magazine, or from anywhere. I realize we are all adoring fans of scratch baking, but I've seen recipes lifted verbatim (or with minor changes to skirt the copyright law).


It doesn't matter how much we praise the author or rationalize that we are giving them free publicity. We are infringing on their work and breaking the law. Has anyone ever tried to get permission before posting?


Sorry. Mimi

LindyD's picture
LindyD

I requested Jeffrey Hamelman's permission to copy verbatim his fold-in the bowl French bread formula appearing at page 249 of Bread.  Permission was granted and I posted it at TFL - word for word.


I'd love to hear what Stan and Norm think, since they have been slaving away trying to publish their book.  Frankly, I don't think they would be very happy if somone buys their book upon publication, then proceeds to give away their work free to everyone with Internet access.

mimifix's picture
mimifix

Thanks Lindy, I truly appreciate that you took the time to request permission. And I, too, hope that Stan and Norm enter this conversation.


I already have a published book and a website. And numerous times my recipes or passages have been posted in forums or blogs without my consent. Bloggers have been the worst offenders, especially with my photos. They simply paste my photo, I receive no credit, and then they have the nerve to post Copyright warnings on their blogs. 


I have a new book coming out and I'm excited; but my excitement is tempered with knowing I'll have to deal with this issue. Maybe Stan and Norm have words of advice...


Mimi

lynnebiz's picture
lynnebiz

Wandering a bit off of the original question by the OP here...


I totally understand what must be the most frustrating thing ever - to have one's hard work basically stolen is horrid! But I also think it's important for those of us who make a living from food related subjects (I hope to do so eventually, so I'm including myself here, if I ever get beyond my procrastination, ha!) that recipes cannot be copyrighted, though (except, as was noted, for the exact wording in the body of the recipe). So - how does one protect oneself? That's a very good subject for discussion.


I had an experience a little while ago. I roast my own coffee, and after a get together at a local restaurant (with people I didn't previously know), a young lady asked if I could show her how to roast coffee.


Of course, I love sharing my hobby - so we arranged a time she could come over. Imagine my surprise when she showed up w/a professional camera. Now DSLR cameras aren't that rare, but it still bugged me - did a search on her name, & it turned out she freelanced for a local city newspaper.


I did let her know (in the nicest way I could) that any photos weren't to be published in any way - if she had asked me before hand, I know I would have said sure, why not! She was emphatic that the photos were only for herself, and that may have been true - but still, what I suspected was not that she'd publish in the newspaper, but that it was actually for a blog. (Things turned out, to me, so bad that day that it could have been a "Fail" blog, lol)


I think it's extremely important that we realize there is little legal protection for us out here, with the new media. If someone has the audacity of copying a recipe word for word, I think one should go after them. One can only wish that the world was full of honorable people, but I'm not naive enough to believe that's so!


I don't really know what recourse someone has, other than that.


I'm interested in anyone's thoughts on this.

emmsf's picture
emmsf

No need to guess.  Here are the words straight from an online publication of the U.S. Copyright Office:


"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. Only original works of authorship are protected by copyright. "Original" means that an author produced a work by his or her own intellectual effort instead of copying it from an existing work."


Beyond that, bake away!

HeidiH's picture
HeidiH

And it is this that makes recipes uncopyrightable.  If one makes a mixture of flour, yeast, salt, and liquid, manipulates that mixture and gives it time to rise, and then bakes that mixture, a loaf of bread will result.  The proportions and types of ingredients and the handling of the mixture will affect the resulting bread.  These are facts.  They cannot be copyrighted.   The prose one uses to describe the making of bread may be copyrightable if it goes beyond mere statement of facts.  Few individual recipes contain prose sufficiently unique to be copyrightable.  Cookbooks are copyrightable because the choice and order of recipes, introductions, photographs, etc. are copyrightable as original work.

 

maggie664's picture
maggie664

Just tweek the recipe, surely?