Four chefs working in a big kitchen

Earlier this week, the Sixth Circuit ruled the “Tomaydo-Tomahhdo Recipe Book” was not creative enough to warrant a copyright. The case started when Rosemarie Carroll (and related companies) sued her ex-partner, Larry Moore (and others) for copying her recipe book.  Recipes and ingredient lists have never been copyrightable by themselves, but much like other compilations, when an author adds enough copyrightable material (such as photographs, descriptions, and the like), the book as a whole could be copyrighted. This case seemed more like a business dispute, and the trial court found that there was no copyrightable material taken by Moore – to the extent anything was taken, it was the ingredient lists and cooking instructions.

On appeal, rather than focusing on the cookbook’s originality, the court focused on what was unoriginal: the recipes, the ingredient lists, and the recipe directions. Finding each to be fact-based, the court concluded, “[Carroll] has not shown that any aspect of [her] recipe book is original and would therefore enjoy copyright protection.” Without a copyright to infringe, the court affirmed the district court’s ruling.

In its six-page opinion, the court managed to compare Carroll’s cookbook to a telephone directory on three separate occasions. Relying on the Supreme Court’s decision in Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., it analogized a recipe’s list of ingredients to telephone listings. It compared her selection and arrangement of menu items to a telephone company alphabetizing its listings. And when concluding that she failed to demonstrate any originality in the cookbook, the court compared the compilation to “a garden-variety white pages directory, devoid of even the slightest trace of creativity.”

While the court made clear that “recipe books can show originality and obtain copyright protection if the ‘authors lace their directions for producing dishes with musings about the spiritual nature of cooking or reminiscences they associate with the wafting odors of certain dishes in various stages of preparation,’” it did not expound upon what degree of “musings” and “reminiscences” would be necessary to warrant copyright protection here.

Despite the creativity infused into many a gastronomical endeavor, this is not the food industry’s first failed attempt to invoke intellectual property law. Two months ago, in a case involving the recipe for a chicken sandwich, the First Circuit ruled that “a chicken sandwich is not eligible for copyright protection.” In October of 2014, a Texas district court ruled that a pizzeria chain was not entitled to trademark the flavor of its food. The court looked to the functionality of flavor in denying the “taste infringement” claim and wrote, “[t]he flavor of food undoubtedly affects its quality, and is therefore a functional element of the product.”