Recipe for Hate

I am absolutely steamed over this recent debacle with Cooks Source being outed for rampant copyright infringement . The pure audacity of someone assuming anything posted on the internet is “public domain” and it up for grabs is one thing, and I will not deny that artistic and intellectual creativity benefits from the availability of content on the internet. However, flagrantly building a business model on top of the backs of people’s work is another.

The newest update I read was from TechDirt, and can be found here:http://www.techdirt.comom/articles/20101117/03315211909/cooks-source-apology-really-a-rant-blaming-the-woman-it-copied-for-daring-to-tell-people.shtml

One of the comments to this article piqued my interested, though:

Meh.

ChurchHatesTucker (profile), Nov 17th, 2010 @ 12:13pm

This is problem of the law, I think. Judith heard (correctly) that recipes aren’t covered by copyright. I’m guessing she thought she was in the clear for reposting recipe.

Now, there’s a point where ‘recipe’ ends and ‘narrative expansion’ begins. Judith obviously crossed that, and violated copyright laws in doing so.

And if you bore down to what was “taken” and what benefit anyone received, Monica seems to have done rather well.

Color me jaded.

The poster got a bit of guff from the comment, which makes me want to explain what’s really going on. They do have a good substantial point – recipes aren’t covered by copyright.

However!

I am not the only person talking about this issue, obviously. Here’s one of the better retellings I’ve come across on the internet. We’ll call this the “Fact Pattern “.

Editor of a for-profit magazine published a non-licensed recipe, with attribution.

ISSUES:

“Recipes cannot be copyrighted.”

“Editor should have been paid for the work done editing to the recipe before publication.”

“Anything posted on the internet is public domain.”

This is the breakdown:

1. Copyright for Recipes

The key problem for this whole issue lies in the ability to “copyright a recipe”. What I haven’t seen many people talking about is that there are two distinct parts of a recipe: the ingredients and the instructions.

Ingredients : For the same reasons that you can’t claim a copyright in facts, you cannot claim a copyright to the ingredients included in a recipe; if one person could sue the pants off of everyone else who wanted to use “apples, filling, and pie crust” – they would have hugely unfair monopoly.

Instructions: This is where the shades of grey for copyright begin. For the basic idea, the level of protection corresponds to the originality of the work, which range from free expressions (think, a highly creative field like fantasy writing) to ideas and concepts (how-to books, blogging) and then pure facts (like historical baseball scores). The closer you are to expressions, the easier it is to claim a copyright in everything included. Conversely, the more facts you have, the more creativity you are required to put around those facts in order to claim a copyright in the parts of the work that are not those facts.

However, there are only so many things that you can do with facts: arrange them and/or explain them. So if you want to claim a copyright on a “recipe”, then you are, in fact, claiming a copyright on the explanation of how to prepare and cook that recipe. “Apples, filling, and pie crust” are not included – but a discussion of the types of apples that are available during the thanksgiving season and which will bake better or give you a different flavor would be copyrightable. Not the information, but the words you put together in order to explain that.

So in our fact pattern, the original author is able to have a copyright, and the ability to license that copyright, off of her work for an apple pie recipe.

2. Editorial work

Given the previous explanation, it should make a bit more sense now why the Editor has an argument for being able to utilize the works involved. They took a list of ingredients (not copyrightable) and the instructions provided by the author (copyrightable) and then put them through what they claimed to be an extensive editorial process. This process, arguably, could have moved beyond a “derivative work” (which would be under the original author’s copyright protections) to an “original work of authorship” (given the extent of the corrections) based purely on the facts presented by the original article.

As it turns out, the actual article that the author, Monica Gaudio, wrote is hosted on Gode Cookery.com , and is described as “Redactions of two English apple pie recipes and a discussion of how they changed over time”. As a copyright attorney and artist, I would consider this an academic piece as well as a recipe – so more towards an expression than a how-to, or “highly creative”.

Now, for the life of me, I cannot find the article published by CooksSource after they got their hands on it to make a comparison of what they did to the article. This is a good thing, I suppose, considering it was in fact copyright infringement. If anyone can find it, please let me know!

(In the best situation for CooksSource, they could have done a completely academic critique of the author’s piece, arguing for a different conclusion with reference to the author’s own researched facts. If that was the case, then I highly doubt that there would have been as big an issue as there was.)

The critique, then, lies in the idea that any amount of “editorial work” they did to the piece. If they did not do what I just described above, which is highly unlikely, then an attempt to use the self-same piece with some grammatical or syntactical corrections, or maybe even some strategic paragraph rearrangement, would still be a far cry from being able to claim that the particular piece by Ms. Gaudio was in any way a legitimate use of the non-copyrightable material involved. In fact, it appears that it was a blatant taking of her piece with attribution, but no payment or licensing from the author.

3. Copyright and Public Domain

Again, with all of that said – it should be clear that the piece Ms. Gaudio wrote was covered by copyright. Not only that, but the copyright invested when she wrote the piece. It was also, arguably, licensed to be hosted on the Goudecook.com site that it was lifted from.

So what would have given the Cooks Source editor any impression that what she was doing was legitimate? While her claim is wrought with “everyone does it” (read: it’s easy to do) and “you should be glad we didn’t just rip you off” (read: they did provide attribution), the claim that the work was in the public domain is just downright fraudulent.

Brief history lesson: Public Domain refers to two things:

* works not covered by any Intellectual Property rights (ex: facts), and

* (2) works whose IP rights have expired.

By expired, I mean that as the American copyright law is concerned, it is so old that it has become part of our culture and therefore, no one can claim any monopolistic rights on copies of that work (aka: a copyright).

There is a long list of legal changes for when a copyright would or would not expire. Here’s a little breakdown:

The Transition from 1909 to 1976 Copyright Act and its Amendments

pre ’23         Not registered                                 Public Domain

’23-’63         Date of Publication (w/ notice)  28 years (if renewal, no public domain (67))  (95, 2018-58)

’64-’77         Date of Publication            28 (auto renewal (68))                                         (95, 2060-73)

pre ’78         Not published (1/1/’78)  Life + 70

1978            “Fixed in a tangible form”              Life +70

Safe to say – it’s convoluted. At first, if one did not register that copyright, then the work did not receive copyright protection. Later, the copyright renewed automatically. Now, the copyright invests automatically and that lasts 70 years after the authors death. (However, if you’re working with a work before created and published before ’78… it can be in the public domain, given their circumstances. For our fact pattern, though, we don’t have to worry about it.)

So could the Cooks Source Editor have thought that Public Domain meant in order to come to her conclusion?

Likely she believed that “public domain” meant “publicly available”, but if that was true, then everything in the Public Library would be in “public domain” – which is certainly not the case. Taking some guidance from her own words regarding, one could assume that she understood that there was copyright protection covering the material, but that the author forfeited the copy protection by publishing her piece online. (Making it available to be stolen makes the piece legally steal-able? I think not!)

The moral of the story…

What one can say, though, is that this kind of activity IS taking place. She got caught, but many others have not. So if you have works that you want protected that you have not registered the copyright in, yet – keep them off the internet. If someone takes it and registers it before you do, your chances of proving that you wrote it first involve a long up-hill battle.

If you have a piece that is registered that you are willing to publish online, though, here are a few tips:

Put a copyright notice on the piece: “(c) 2010” – Though it is not required by law, it does show your intent to claim a copyright should the issue come up – which may deter this kind of thieving in the first place.

Put a disclaimer on the piece: “this work is registered and the author will send an angry internet-mob after you if you take this piece without my permission” – That certainly shows your willingness to sue, should they be discovered.

Keep it off the internet. While this is not my typical pro-internet marketing, if you have something of value, then there is some value to stealing it. It’s your call, but I hope you make an educated decision about the risks involved.

Oh, and fwiw – The last bit is especially true if you’re writing a novel. Most hard copy publishers want the “Right of First Publicity” with a work, which means that the piece has not been published (aka: made available for public consumption). Posting a few chapters or the whole piece on the internet does count as publishing, even if it feels informal, and may damage your ability to license or sell the piece with exclusivity.

So… that’s my take on the situation. Hopefully I’ve provided some further insight into the conundrum and why this Editor may have thought she had some hazy right to do what she was doing at all.

That’s it for now.

Pax,

Miss Nomer, Esq.

As an additional note – there is something to be said about wishing to publish online, but have “some rights reserved”. Creative Commons  is a fabulous non-profit working with content creators to span the gap between copyright and pubic domain or open source by providing a spectrum of copyright licenses. From their website…

* Some Rights Reserved

* Creative Commons defines the spectrum of possibilities between full copyright and the public domain. From all rights reserved to no rights reserved. Our licenses help you keep your copyright while allowing certain uses  of your work ― a “some rights reserved” copyright.

Check them out and educate yourself about the options available to you, if you’re going to pursue internet publishing. It could save you a bundle!

 

(c) Nicole L. M. Jurkowski 2010

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