Can Copying a Recipe Like Cindy McCain Get You Sued?

When a political gaffe strikes, who do you blame? The intern of course! At least that’s what aspiring first lady Cindy McCain did after the blogosphere discovered that most of “Cindy’s recipes” published on her husband, and presidential hopeful, John McCain’s campaign website were actually taken directly from the Food Network (SSP) and TV chef Rachael Ray.

“Apparently a Web intern added Rachael Ray to our policy team without her knowing it,” a McCain campaign spokesman joked. “He was swiftly dealt with, and the page is down for revision.” A recipe for Ahi tuna with Napa cabbage slaw lifted verbatim from the Food Network and a slightly altered Rachael Ray recipe for rosemary chicken were immediately pulled from the Senator’s webpage. But can stealing a recipe have greater consequences than public embarrassment? It depends on how the recipe is copied.

There’s very little copyrightable material in actual recipes. The U.S. Copyright Office states, “Mere listings of ingredients as in recipes, formulas, compounds or prescriptions are not subject to copyright protection.” It’s copying the writing that accompanies the recipe that can get you into hot water.

“Copyright protects the author’s expression in the literary form, so where your recipe includes directions and explanations on ingredient combinations or serving suggestions, that’s where you get into copyrightable expression,” says Los Angeles-based intellectual property attorney Benita Das.

Cookbooks are copyrighted because of the nature of how the recipes and layouts are selected. “If I write a cookbook with my favorite Italian recipes, the very act of selecting 40 recipes out of hundreds is a copyrightable act,” says Siva Vaidhyanathan, a professor of media studies and law at the University of Virginia. “In cookbooks there’s a lot of creativity that’s copyrightable like the descriptions, the narrative, the writing around the recipes, the photographs, and the selection of recipes. But the amount of oregano is not a copyrightable phenomenon.”