RAQs: Recently Asked Questions

Topic: Cookbook recipes as textbooks - 8/29/2017
An instructor has loaded many scanned pages from a cookbook (possibly multiple cookbooks) into her...
Posted: Tuesday, September 5, 2017 Permalink

MEMBER QUESTION

An instructor has loaded many scanned pages from a cookbook (possibly multiple cookbooks) into her class Blackboard page so that students do not have to purchase a textbook. In the samples I've received, I don't see any acknowledgements of the original author(s). Is this permissible? Thank you!

WNYLRC ATTORNEY'S RESPONSE

[Note:  The syllabus, which set out the basis for compiling recipes from a variety of regions and cooking styles, was also provided as part of this analysis.]

At first glance, this looks like a simple “Fair Use” question: is it okay, for use in a class, to copy and compile recipes from different sources and regions?  But this scenario is also a stealth “Section 102”[1] question: what exactly constitutes copyrightable subject matter?

We’ll take the “102 Question” first: is what the instructor duplicated entitled to copyright protection by a potential plaintiff? 

Answer: Since the duplicated materials are very simple recipes, without photos, lengthily narratives, or illustrations, probably not.  Per well-established case law[2], a plain, unadorned recipe, which is effectively a set of instructions with very little creative expression, is not sufficiently original to warrant copyright protection.[3]

We’ll take the Fair Use question next: if any of the recipes do have enough original expression to be protected by copyright (let’s say one has a cool picture of Jacques Pepin in the background), is copying them and compiling them together a Fair Use?

Librarians know, perhaps better than anyone, that Fair Use is a shifting exception to copyright infringement where the purpose, character, amount, and effect of the use all must be weighed to arrive at an answer.  In this case, with the recipes taken from a variety of sources, and arranged to support a compare-and-contrast cooking experience at a not-for-profit educational institution, if only very little from each original source was taken, there is a strong Fair Use argument to be made.  And of course, that argument would only need to be in defense of a claim based on content meeting the requirements of Section 102!

So, back to the original questions: is the posting permissible?  The answer is: most likely, yes!  However, the safest thing for the faculty member and the institution to do, going forward, would be to generate newly typed, bare-bones versions the recipes[4] (it’s one thing to know you’re right, it’s another to not get sued in the first place).  I would also advise they leave any maps, images, or other separately copyrightable materials that can easily be sued on, out, unless they have permission to use them.

And finally, regarding the issue of acknowledgment: unless the original author or publisher used a “Creative Commons” license allowing duplication with attribution, there is no need to attribute the source…if anything, attribution is helpful evidence for a plaintiff, and not particularly helpful to a defendant.  So there is most likely no benefit to crediting the source…although in academia, of course, citation is at the very least a professional courtesy, as well as a gateway to credibility.



[1] 17 U.S.C. Section 102 is the section of the Copyright Code that defines and lists copyrightable subject matter.

[2] Publications International, Limited, v. Meredith Corporation, U.S. Court of Appeals for the 7th Circuit…a case is worth reading both for its clear explanation of the idea/expression dichotomy, and for the Judge’s commentary on the yogurt-based recipes allegedly infringed by the defendant.

[3] This is why cookbooks often have photos, fun commentary, and a stylized way of giving instructions…the author and publisher are making sure they can protect the work.

[4] This is rather liberating advice to give.  In most cases, I can’t advise generating re-typing versions of a publication to avoid a claim of infringement.  But if you’re just listing “required ingredient and the directions for combining them to achieve final products,” (see the above-cited case) without taking someone’s original narrative, pictures, or other creative elements, and not copying their web site or other digital elements, you’re home free.

 

 

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