The internet briefly exploded this week over speculation that the Food Network, which publicly canceled Anne Thornton’s show “Dessert First” over low ratings, may have actually canceled the show due to recipe plagiarism. I can’t speak with authority about Thornton’s show, having never seen it (I prefer my cooking shows to be helmed by more proven, established cooks like Ina, Alton…even Chiarello in his inherent douchiness is still a great cook. Plus, he told me I could freeze blue cheese for six months, for which I am forever grateful.) However, copyright’s non-protection of recipes is something I’ve discussed here before, and I think the general Internet opinion may have gotten this one a little wrong.
The New York Post article pointed to two recipes for lemon bars as an example of the possible plagiarism committed by Thornton. One recipe is by the Contessa herself, the other from Thornton. Both recipes have the following ingredients: butter, sugar, flour, salt, eggs, lemon zest, lemon juice, confectioner’s sugar. Thornton’s adds almond extract for the bar base, and suggests a garnish of raspberries (which is totally irrelevant for these purposes. If you can’t copyright a recipe, you sure as hell can’t copyright a garnish.) So, what exactly do we see here that is a problem? If you were going to make a recipe for lemon bars from scratch, there’s nothing in that list of ingredients you wouldn’t include. This is the inherent problem with understanding how copyright law might protect recipes: they are just too damned close sometimes to even begin to tell if plagiarism has happened. And even if Thornton copied Ina’s ingredients, so what? A list of ingredients isn’t protectable by copyright law because it is an idea – a functional list, if you will – and not the expression of any idea. It is a list of ingredients. Its function is to tell you what ingredients go in a recipe. There’s not even a “modicum” of creative expression involved, and any yahoo with Google could have told you that those were the items that you use to make lemon bars.
My biggest problem with this, however, is HuffPo’s generalization of copyright and recipes: “Recipe attribution is tricky business — the copyright laws on the topic are notoriously vague, with legal infringements often hinging on the actual phrasing of instructions rather than a list of ingredients.” Well, isn’t that just the biggest simplification of one of the most difficult topics to explain in copyright? It’s not that the suits hinge on the actual phrasing of instructions rather than a list of ingredients, but that a list of ingredients is not copyrightable – it is purely functional. And the law views recipes as facts, not expression, despite how many chefs might argue that the output from a recipe is in fact an expression of their ideas.
I’d love to argue that recipes should be treated differently under copyright law, but no matter how many times I’ve tried (and did in a law school independent study), I never end up completely convinced myself. Despite the fact that there are a million ways to make a bolognese, there are always going to be certain things that go in that bolognese, and there’s no arguable creative input in listing those ingredients. Sure, there is creative expression in an explanation of the recipe (“I learned this recipe from my grandma on a visit to Italy when I was a kid”) and that will always be copyrightable. But while it pains me to say it, it looks to me like this is more an instance of a public feeling that something is just simply unfair rather than actual infringement. Copyright law isn’t going to budge on this – the line in the idea/expression dichotomy is very clear – and although it might have been unfair for Thornton to base her recipes off of those she enjoyed, it certainly wasn’t illegal.