The Sixth Circuit Court of Appeals has re-confirmed, once again, that recipes are not subject to copyright protection. The ruling originated from a suit filed by Rosemarie Carroll against Larry Moore and others for copyright infringement and other state law claims associated with a restaurant and catering business that Carroll and Moore previously co-owned. In that prior venture, Moore conceived and developed the recipes for the menu. In 2007, Carroll and Moore parted ways with Carroll purchasing Moore’s interest in the businesses and with Moore signing an agreement which specified that Moore return “all originals and copies of . . . menu files and development ideas, recipes (current and historical) and training tools.”
Subsequently, Carroll created and obtained a registered copyright on the “Tomaydo-Tomahhdo Recipe Book” that was assembled based on the recipes that Moore developed for the restaurant. In the lawsuit, Carroll alleged that Moore and other defendants copied the recipes and used them for their catering business.
On October 20, 2015, the Sixth Circuit upheld the district court’s dismissal of the copyright claim finding that the cookbook was not creative enough for protection. At the outset, the Sixth Circuit noted that the cookbook was a compilation and only subject to copyright protection if it is original, meaning that it has some creative aspect.
Plaintiff argued that its recipe book was creative because (1) Moore’s trial-and-error process for developing recipes embodies the selection, coordination, and arrangement necessary to demonstrate creativity, and (2) its menu was purposefully ordered a particular way, each item on the menu existed because Carroll and Moore specifically chose it, and the items were chosen in coordination with each other.
Both arguments were rejected. The Sixth Circuit’s ruling was anchored to the long-standing rule that the recipes themselves do not enjoy copyright projection because the list of ingredients is merely a factual statement. And a recipe’s instructions, as functional directions, are statutorily excluded from copyright protection pursuant to 17 U.S.C. § 102(b). Given that, the court found that plaintiff did not point to anything demonstrating that the recipe book is an original compilation. With respect to purposefully selecting and arranging the menu items, the Court noted that Carroll never identified what is original and creative about that process. Rather, that argument merely characterized how recipes are developed and further perfected. The court further held that plaintiff’s assertion that the menu items are purposefully coordinated with each other was doomed because she never identified any creative manner by which they are. Accordingly, the plaintiff had no copyright interest in the book.
Notably, courts have found that cookbooks can be copyrighted as original compilations if authors “lace their directions for producing dishes” with creative content such as stories about times the dish was made.