Using a recipe in a YouTube video [duplicate]

Question

What is the legality in using a recipe in a YouTube video? Should I cite the cookbook I got it from (I would do it either way)? And should I get the author's permission to use it? What else should I be mindful to ethically and legally use it for content?

Answer 1

Copyright

In most (all?) jurisdictions, copyright protects creative expression, not ideas. In united-states doctrine, that is known as the idea-expression distinction, but that concept is not US-specific.

Therefore, the text of a recipe, an accompanying image, and other similar elements can be copyrighted. However, the functional parts of the recipe (the exact ingredients, proportions, timing of steps etc.) are not. If the Youtube video reads out the text of the recipe, then it would be a derivative work, but if the script of the video is rewritten in different words, it is not.

Even further, the creative elements are only protected insofar as the same underlying idea can be expressed in multiple ways (merger doctrine). The typical example is software code where the level of similarity required to show infringement is high: computer code is text, but that text has to follow strict rules to be valid when run through the computer, and industry best practices mandate additional similarities. Recipes are more flexible than computer code, but they still follow a guiding pattern. Similarities of content that would be considered close paraphrasing (hence infringement) in a free-form context could be deemed to not be infringement in a stricter-form context.

For instance, in france, taking the recipes from a children’s cookbook and putting them into another children’s cookbook (in different words but the same "for-children" tone) was deemed to not be infringement:

Ces recettes prennent la forme classique et stéréotypée d’une énumération des ingrédients puis d’une description étape par étape des opérations à effectuer. Si (...) la formulation prend en considération le jeune public auquel est destiné ces recettes, cette caractéristique qui n’est au demeurant pas innovante comme le montrent d’autres exemples de recettes destinées aux enfants versés au débat par la défenderesse qui adoptent un ton similaire, ne suffit pas à leur donner une forme ou un contenu qui porte l’empreinte de la personnalité du rédacteur.

Aussi les recettes en cause ne relèvent pas d’une activité créatrice originale, et ne sont pas de ce fait protégées au titre des droits d’auteurs.

Those recipes take the standard and stereotyped form of a list of ingredients followed by a step-by-step description of the operations to perform. If (...) the choice of words takes its young audience into consideration, that characteristic (which is not new, as proven by other examples of children-oriented recipes shown by the defendant) is not sufficient to give it a form or content bearing the mark of its creator’s personality.

As such, those recipes are not considered an original creative work, and are thus not protected by copyright.

Source: TGI PARIS 3ème 2ème section 24 janvier 2014 RG 12/00188, cited at this link.

Other intellectual property rights

Trademarks protect brand image. If John Doe publishes John Doe’s Recipe Book with a recipe for John Doe’s cookies, and fills out the appropriate trademark paperwork, you are allowed to follow the same recipe to make cookies (or another recipe that produces similar cookies), but you cannot sell them as "John Doe’s cookies". You can say that you followed the recipe of John Doe’s book, but you can not say or imply anything that could make anyone think John Doe approved your cookies.

Patents protect inventions, which are novel and non-obvious solutions to (usually technical) problems. I am not familiar enough to know if a particularly inventive recipe could be patentable (I guess not, but the answer might vary across jurisdictions). However, most recipes are new takes on old ideas (add more of that ingredient, less of that, have a different texture etc.). Those are certainly not patentable because they are "obvious" (which, in the context of patent law, means that anyone who has read all existing cookbooks in all languages could imagine the modified recipe).

There are other, highly jurisdiction-dependent rights. For instance, in france, the shape and presentation of John Doe’s cookies could be protected under a "dessins et modèles" (sketches and models) clause. (For most recipes, it is trivial to modify the appearance of the final product enough to escape that kind of protection, so it is best thought of as an extension of trademark - you cannot sell John-Doe-looking-cookies even if you make clear they are not John-Doe-approved.)

Answer 2

Many, perhaps most, recopies have no copyright protection at all. More specifically, the list of ingredients, and the steps to follow are all facts, and as such are not protected by copyright. Elaborations and creative wording of the directions, and discussion of the reasons for the steps, or of the effect of the steps, is likely to be protected, and may not be copied without permission, unless an exception to copyright applies.

In US law, 17 USC 102(b) provides that:

(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

The US Copyright Office Circular #33: "Works Not Protected by Copyright" states on page 2:

Recipes

A recipe is a statement of the ingredients and procedure required for making a dish of food. A mere listing of ingredients or contents, or a simple set of directions, is uncopyrightable. As a result, the Office cannot register recipes consisting of a set of ingredients and a process for preparing a dish. In contrast, a recipe that creatively explains or depicts how or why to perform a particular activity may be copyrightable. A registration for a recipe may cover the written description or explanation of a process that appears in the work, as well as any photographs or illustrations that are owned by the applicant. However, the registration will not cover the list of ingredients that appear in each recipe, the underlying process for making the dish, or the resulting dish itself. The registration will also not cover the activities described in the work that are procedures, processes, or methods of operation, which are not subject to copyright protection.

The law in other countries is similar on this point.,

Thus, a video showing the preparation of a dish following a copyrighted recipe is not a copyright infringement, and no permission from the copyright owner is required. Indeed legally even attribution is not required, although many would hold that it is ethically essential. Reading the text of the recipe aloud during the video, or displaying the text of the recipe, might be an infringement if the text includes protectable expression, as it might well do. Permission might be required to read or display the text.

Original discussion of the recipe, its merits and problems, and its relation to other recipes, would not be an infringement, and no permission would be needed for such discussion.

Non-US Law

"Protection of a recipe" an article on Copyright.EU says:

... it has been recognised that cooking recipes cannot be protected by copyright since they “do not in themselves constitute an intellectual work”, but rather a know-how, which is similar to an idea (TGI Paris, 10 July 1974).

On the other hand, the text of a recipe could be protected if it is original. But this protection is not sufficient since it does not concern the content of the recipe: it focuses on the form of the recipe text.

The article "Intellectual Property Rights in Recipes and Food" by Bird & Bird states:

Whilst a recipe could constitute a literary work for the purposes of the [UK] CDPA 1988, this would only protect the written recipe itself from being republished and it would not prohibit someone from following the recipe and making the dish (in other words, the manifestation of the recipe is not infringement).

The article "Protecting recipes using intellectual property law" states:

In theory, a recipe should be able to benefit from this protection. However, French and European case law has long refused to grant copyright protection to recipes. In a judgment dated 30 September 1997, the Tribunal de Grande Instance de Paris considered that “although recipes may be protected in their literary expression, they do not in themselves constitute a work of the mind.” It is therefore possible to obtain protection for the text of the recipe if it is original, for example for a cookery book, but not for the recipe as such.

Answer 3

Parts of the recipe are protected by copyright

Specifically, the procedure is but the ingredients list isn’t. That’s because the latter is a fact and facts can’t be copyrighted.

Recording yourself executing the recipe is the creation of a derivative work and that is a right reserved to the copyright owner. You can only do this with permission or if there is a fair use (possible) or fair dealing exemption (unlikely) exemption, or if the recipe has passed into the public domain (many recipes are certainly old enough that this has happened).

Acknowledgement is irrelevant to the legalities although it is polite and, it tells the copyright holder that it’s their copyright you just violated making it much easier for them to sue you.