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Why it's so hard to own a recipe | copyright, patent, trade secrets, trademarks - YouTube
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It is surprisingly hard to own a recipe. I
mean, legally own it to the point where if
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somebody without your permission copied your
recipe or marketed your recipe, you could
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sue them and win. It's possible. But it is
surprisingly hard when one considers the script
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I'm writing this instant is immediately covered
by internationally recognized copyright protections
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as it leaves my fingertips, as it leaves my
mouth and goes into the camera. I instantaneously
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own the copyright on the thing that I am creating
right now. So why wouldn't I instantaneously
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own a recipe I come up with? Well, in a way,
I do. I own the copyright to this, the specific
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wording with which I expressed my recipe,
if you believe that my instructional prose
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qualifies as some kind of literary work.
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"Copyright typically relates to things like,
uh, literary works — music, drama, and computer
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programs."
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This is Dr. Laura Clews, doctor of chemistry
and an attorney at Mathys & Squire, which
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is a big European intellectual property law
firm. And while her expertise is mostly in
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UK and EU law, these broad strokes of intellectual
property law have been very internationalized
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via trade agreement. So pretty much everything
we're about to say is the law pretty much
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everywhere. Pretty much everywhere, a copyright,
for example, refers to media — or applies
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to media. Creative works, artistic works,
music paintings, videos.
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"And can be used to prevent other people from
performing those works or providing copies
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and selling copies, and things like that.
But unfortunately, copyright doesn't extend
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to statements of mere fact, or ideas, or methods
of operation."
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Indeed, if we look at this circular from the
United States Copyright Office, "the Office
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cannot register recipes consisting of a set
of ingredients and a process for preparing
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a dish. In contrast, a recipe that creatively
explains or depicts how or why to perform
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a particular activity may be copyrightable."
At that point, the recipe would go beyond
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just being a simple utilitarian object and
actually become a work of art, of literature.
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Like, Chrissy Teigen isn't just a terrific
developer of recipes. She's a terrific writer,
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and her authorial voice crackles through all
of her cookbook prose. But it's the prose
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and the beautiful photos and such that are
copyrighted, not the dishes themselves. You
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can't copyright concepts or ideas. But you
can patent some ideas, and that's what Dr.
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Clews does. She's a patent attorney, where
no doubt her chemistry background comes in
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handy. You almost always need a patent attorney
if you want to apply for a patent because
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a patent is a thing you actually have to apply
for, as opposed to copyright, which you own
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automatically the second a creative idea,
a piece of content, leaves your brain and
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goes to the page.
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You own the copyright. You can get some extra
protection by actively registering a copyright,
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but that's a bonus. It's not a must. To get
a patent, you must fill out some pretty long
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and complicated forms. You have to demonstrate
three things: Your idea is inventive, it is
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novel and industrially applicable. And we
have a word for an idea like that, right?
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It's called an invention. And certainly a
recipe could be an invention that qualifies
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to protect a recipe under patent law, you
have to demonstrate that it is novel, industrially
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applicable and inventive. What is inventive?
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"For inventive, you need to show that it's
not obvious. So this can be a little bit more
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tricky to understand. We normally say, if
you have a particular unexpected technical
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effect associated with either, say, a specific
ingredient that you've used, or a specific
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process step."
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For example, in 2006, J. Kenji Lopez-Alt had
just been hired as a test cook at Cook's Illustrated
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magazine. And he came up with a new way to
cook steak. Instead of searing the outside,
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and then gradually cooking the inside, Kenji
flipped the script. You very slowly bring
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the interior of the steak to the exact temperature
you want. And then you blast the outside.
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It's a method that's particularly good for
very thick steaks. And it seems conceivable
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to me that Kenji's idea there might've qualified
as inventive by the standards of patent law.
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I mean, obviously he probably wouldn't have
owned it because he was on the job when he
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came up with that idea, Cook's Illustrated
would have owned it. But let's just stay with
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the thought experiment for the moment. Let's
assume that Kenji's idea there, the reverse
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sear, was inventive, by the standards of patent
law. Surely it's also industrially applicable.
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Reverse searing can be great in a restaurant
setting when you're trying to expedite things.
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You do the slow cook stage in advance, and
then simply sear the steak to order. Kenji
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could have launched a whole worldwide chain
of fast, fine steakhouses, where you order
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a hundred dollar steak and have it prepared
in less time than it takes to fold a burrito.
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But was Kenji's idea novel?
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"So, the requirements of novel just means
that it hasn't been disclosed anywhere in
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the world before the date that you filed your
patent application."
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As they say, great minds think alike, and
great ideas, even when they're not obvious
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ones, tend to be arrived at independently
by multiple people when that idea's time has
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come. This is a phenomenon known as multiple
discovery or simultaneous invention. Classic
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example is the American Thomas Edison and
Brit Joseph Swan both inventing the incandescent
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light bulb totally on their own, working on
parallel tracks. They both patented their
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inventions in their respective countries in
1879. Of course, they sorted it out, merged
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their companies and the rest is history. In
our friend Kenji's case, I obviously believe
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him when he says that he independently invented
the reverse sear. He had not heard about that
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from anywhere else when he came up with the
idea for himself. But his idea was not novel
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— for a few reasons, which Kenji recently
discussed over on his excellent YouTube channel.
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"In the period since we published that, in
2007, some people had brought it to my attention
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— mainly Meathead over at amazingribs.com,
where you can find a full history of the reverse
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sear. It was brought to my attention that
a guy named Chris Finney — I think his barbecue
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team is called Iron Pig BBQ — but he was
writing on barbecue forums about doing the
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reverse sear a couple of years before I published
it in Cook's Illustrated. So..."
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So, not novel. And indeed, amazingribs.com
documents reverse searing that actually predates
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Finney. Of course, it's moot because Kenji
didn't try to patent the reverse sear in the
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first place. Dr. Clews is not aware of any
instance in which a restaurant chef or a food
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media personality tried to patent a recipe.
Generally, this is done by the food manufacturing
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industry dealing with pretty esoteric stuff.
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"For example, Nestlé have come up with a
process for producing hollowed-out crystal
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sugars — sugar crystals. And in that way,
you think that you're getting the same amount
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of sugar, but in reality the sugar content
of the chocolate bar, say, is a lot lower."
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And you can go online right now and see multiple
patent applications pertaining to different
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arcane technical components of that invention.
Patent applications become legally public
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documents, generally 18 months after you file
them. And in those documents, Nestle spills
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all their secrets. In exhaustive detail, they
tell you exactly how to reproduce their inventions
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because they have to — if they want patent
protection. If I'm granted a patent for my
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invention, I then have an exclusive legal
monopoly to market that invention. And then
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for you to be reasonably expected to be able
to comply with the law, you have to be able
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to know exactly what my invention is, right?
You have to know what you're not allowed to
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do in order to follow the law. So that's why
I have to spill the beans in my patent application.
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But that's fine, because if I'm granted my
patent, I then have the exclusive right to
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market that invention, even if you know what
it is. But not forever. There is the rub with
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patent law. Patents generally only last 20
years, and you can't re-up them like you can
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with copyright. Here's a classic example.
The recipe for Coca Cola has got to be one
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of the most closely guarded secrets in commercial
history. If John Pemberton had patented his
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formula for Coca Cola when he invented it
in 1886, his recipe would have become a public
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document in the form of his patent application.
And then in 1906, when the patent expired,
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anyone would have been free to copy the recipe
right out of that application, and then to
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sell their own drink that tasted exactly like
Coke. The Coke formula would be on the U.S.
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Patent Office website right now. But Pemberton
didn't do that, so it's not. The function
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of patent law is to give you a chance to get
established in the market with your new invention.
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It's not to give you an exclusive monopoly
in perpetuity. Nonetheless Coca-Cola has maintained
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that monopoly for well over a hundred years
now. There's tons of generic colas, but none
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of them taste exactly like Coke because, instead
of going the patent route, Coca-Cola went
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the trade secret route. The law will actually
help you protect your trade secrets if you
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have taken a reasonable steps to protect them.
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"Say, password protecting files. If you limit
the number of people who have access to that
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information. And you can have confidentiality
agreements and employment contracts. You can
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show that you've made sure you've educated
your employees on how to handle confidential
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information and why it's important. And obviously
try not to disclose it to third parties, but
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if you do, you need to make sure that you've
got non-disclosure agreements in place."
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So, say you did all of that, but your secret
recipe leaks anyway. You would be able to
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sick your lawyer, obviously, on the leaker,
and potentially also on anybody who tried
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to market your recipe, even if they weren't
involved in stealing or leaking the recipe.
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What trade secrets don't protect you from
is anybody, say, looking at that list of ingredients
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you're legally required to put on the label,
and then maybe taking a little sample back
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to the lab to figure out in what quantities
you have those ingredients, and how you combine
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them.
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"So essentially they reverse engineer what
you've done. You can't prevent that third
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party from continuing to make that product
or use that process. In addition, if a third
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party independently comes up with the same
products or process, there's nothing that
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you can do to prevent them continuing in that
business."
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But of course, even if somebody reverse engineered
Coke, they couldn't sell it as Coke. The name
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Coke and the logo here are trademarks. That's
what that little R is. And trademarks are
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infinitely renewable because, they're only
function is to prevent confusion and deceit
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in the marketplace, to make it so that no
company could trick consumers into believing
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they were buying something from somebody else.
So in that sense, trademark law is kind of
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in applicable to our present discussion, right?
The name of your recipe is not your recipe.
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But maybe the shape is.
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"Toblerone were successful in this. So they
actually have a registered trademark for the
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triangular chocolate shape that they have,
which means that, obviously, that's been generated
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as part of their process of making the chocolate.
But they're able to prevent other companies
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from producing the same shape in the form
of a chocolate bar."
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Dessert frequently runs into issues of intellectual
property law, because it's so readily decorated.
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People put trademarked and copyrighted art
on cookies and cakes all the time, often illicitly
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— though not in this case. These have my
permission and they're beautiful. Another
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thing is that food itself can be art, right?
When a sculptor works in clay, they instantaneously
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own the copyright to their work. Why should
molding in flour or sugar be any different?
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You got to wonder if somebody — probably
not me, somebody better at this stuff than
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me — you gotta wonder if somebody might
make a legally persuasive argument that their
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recipe transcends the level of mere utilitarian
consumable good, and is indeed art — art
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that is copied every time the recipe is prepared,
the same way that a musical composition is
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copied or reproduced when somebody covers
it. Dr. Clews says that'd be a pretty tough
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legal argument to make about food in court,
but she says it's not inconceivable. Of course,
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this entire legal discussion is totally apart
from the discussion of ethics, right? Just
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because you can nick someone's recipe doesn't
mean you should, but that's a different conversation,
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and one we'll have another day.
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