Ah, Bake-Off season. Ten weeks where we can laugh, cry and admire the bakers’ amazing creations. I acknowledge my own baking skills barely extend as far as a serviceable Victoria sponge, but having access to the Bake-Off recipes is a plus for people with the talent to make the bakes, or the stones to let the rest of us laugh at their failed attempts.
Since the show’s creators put the recipes up online, it seems safe to assume they want us to imitate the bakers. But this got me thinking about copyright—an unfortunate side-effect of working in the field, as I’m sure you know—and how it relates to recipes. I knew you couldn’t claim a collection of ingredients were protected by copyright, but what about the end result? Some of those bakes are beautiful enough to count as artistic to me, and we’ve written about how the creator’s copyright applies to art even when the medium is human skin.
Turns out, recipes and copyright are a bit of an interesting (read: complicated) topic; there’s actually some debate as to whether a recipe or food-creation can be protected by copyright, and what criteria it would need to meet to do so.
At first glance, it was surprising to learn that it seemed recipes can’t be protected by copyright law in the UK or US. The general reason given for this is that a collection of ingredients can’t be covered under copyright (any more than you could copyright the actual materials used in something) and a recipe is a list of instructions, which doesn’t fall under list of things that can be protected by copyright in UK law.
However, it doesn’t end there. Clearly, publishers print cookbooks with the idea that they will be profitable, and that could be hindered if someone else could just reprint the recipes in a new book and sell that. Fortunately, copyright law does apply here; typographical arrangements are protected, so you can’t scan or photocopy the pages without permission or an appropriate licence (like, say, a CLA Licence).
To what extent this applies to the actual words of the recipe, however, is less clear. I’ve already said the recipe itself is not protected, but there is an argument to be made that the wording is an ‘original literary work’. So, someone could copy the ingredients and formula for preparing them, but they would likely not be able to take the exact text word-for-word and call it their own.
This is, of course, why commercial edible products will often have ‘secret ingredients’ or ‘secret recipes’—famous examples include Coca-Cola and KFC—since lack of copyright protection doesn’t mean much if competitors don’t know what it is they want to copy. These are enforced with secrets, non-disclosure agreements, and ensuring only employees who ‘need to know’ have access to this information, minimising the risk of a leak.
So, you can’t use copyright to protect dishes or the instructions on how to make them—at least in almost all circumstances. But what if the food is also intended to be a work of art? If an artist chooses to make what is essentially a sculpture out of icing, cake, and buttercream instead of marble, does that attract copyright?
The answer is that it’s complicated. Natasha Reed writes—from a US perspective—that copyright ‘does not protect merely utilitarian articles, ideas, facts, or formulas. Since food is a useful article, copyright law will apply only if the food incorporates highly creative features that are separable (either physically or conceptually) from the food’s utilitarian features.’ This seems applicable to UK law, but is still sort of ambiguous. Essentially, if the dish had artistic merit separate from its nature as food, the creator would be able to claim they own the rights to it and it can’t be copied. It seems to be an untested area in UK law, however. It did come up in the US fairly recently, with Donald Trump’s inauguration cake, but not to the extent of getting the courts involved, so any conclusions are still commenters’ speculation.
I find this particularly fascinating, because it’s treading the fine line between functional and artistic creations. It’s a good topic to raise when teaching copyright and even when thinking about art more generally.
What do you think? Is some food creative enough that it’s art as well as food, and thus protected by copyright? Or do chefs simply need to accept that their recipes and creations cannot be protected, and so must rely on their skill and secrets if they want what they produce to be unique? Let me know in the comments below!