Can you copyright a recipe? What the law protects and what it does not

Can recipes be copyrighted? The short answer

A recipe has two parts: what goes in it and how you make it. US copyright law protects neither of those on its own. The Copyright Office's FAQ says that a mere listing of ingredients is not protected, and its Circular 33 says the same of a mere listing of ingredients or contents, or a simple set of directions.

What can be protected is the writing and the pictures around the recipe. The FAQ points to recipes with substantial literary expression in the form of an explanation or directions, and to a collection of recipes as in a cookbook. Circular 33 adds that a registration can cover photographs or illustrations that are owned by the applicant.

So the answer to "are recipes copyrighted" depends on which part you mean. The table sorts the parts of a typical recipe page or cookbook.

What Circular 33 says about recipes

Circular 33, "Works Not Protected by Copyright", is the Copyright Office's own guide to what it will not register. Its recipe section draws the line between a recipe as a set of facts and a recipe as a piece of writing.

On the protected side, it says that a recipe that creatively explains or depicts how or why to perform a particular activity may be copyrightable. A registration for such a recipe may cover the written description or explanation of a process, as well as photographs or illustrations that are owned by the applicant.

On the unprotected side, the same registration the list of ingredients that appear in each recipe, the underlying process for making the dish, or the resulting dish itself. It also leaves out procedures, processes, or methods of operation, because copyright does not protect a way of doing something. Circular 33 makes the same point about a book that explains a food processing system: the copyright does not give the author the right to prevent others from employing the system it describes.

• Cookbook example: an author applies to register a pie cookbook and claims the text, the photos and a "compilation of ingredients". The Office refuses the ingredient claim and may limit the registration to the text and photographs only.
• Salad dressing example: an applicant submits one dressing recipe, a list of ingredients and a few short numbered steps. The Office refuses it, because the ingredients are uncopyrightable and the steps contain an insufficient amount of creative authorship.

Most recipes on blogs and recipe cards sit somewhere between these two examples. A long headnote, a story about where the dish comes from, or a detailed explanation of why each step matters is the part most likely to count as protected writing.

How to copyright a recipe or a cookbook

Copyright in the protected parts starts the moment it is created and fixed in a tangible form, so a recipe you write down or post already has whatever protection it qualifies for. Registration is optional, but it matters if you ever need to enforce it.

1. Decide what you are claiming

   Claim the text you wrote and the photos you took. Do not claim the ingredient list or the method; Circular 33 says those are left out, and the Office may write to you to narrow the claim.

2. Keep secret formulas out of the application

   The FAQ warns that applications and deposit copies are public records. If a recipe depends on a secret ingredient or ratio, do not deposit it with the Office.

3. Pick the application

   The Copyright Office's online Single Application costs $45 for one work by one author who owns it. A work outside those conditions, such as a cookbook written by two authors, uses the Standard Application at $65.

4. Register before you need to sue

   Registration is required if you wish to bring a lawsuit for infringement of a U.S. work. For works created now, copyright lasts the life of the author plus an additional 70 years.

Selling recipes, recipe cards and cookbooks

You can sell recipes, printed recipe cards, digital recipe packs and cookbooks. What you own is the specific writing, layout and photos, so that is what a buyer cannot copy and resell. A buyer can still cook the dish, and anyone can write the same ingredients and steps in their own words.

For a cookbook, the protection comes from a collection of recipes as in a cookbook and from the writing and photos inside it. The title is not protected by copyright: Circular 33 lists the title or subtitle of a work among the things the Office will not register.

If you sell recipe cards or ebooks, write more than a bare list. Headnotes, tips, substitutions and your own photos are the parts that are yours. Use photos you took or have a license for; the registration covers only photographs or illustrations that are owned by the applicant.

Using or adapting someone else's recipe

Because the ingredient list and the method are not protected, you can cook from another person's recipe, change it, and publish your own version. What you cannot do is copy their headnote, their step-by-step text or their photos word for word or pixel for pixel.

A safe way to work: take the ingredients and quantities, test the dish yourself, then write every sentence of the method in your own words and shoot your own photos. Crediting the original author is good practice, but credit does not give you permission to copy their text or images.

The same applies to a recipe you see in a cookbook, on a blog or on a food package. Copying a whole cookbook's text, even with new photos, copies the protected writing.

Selling food made from someone else's recipe

A copyright on a recipe does not stop anyone from making and selling the dish. Circular 33 says a recipe registration the list of ingredients that appear in each recipe, the underlying process for making the dish, or the resulting dish itself. A baker can sell a cake made from a cookbook recipe without copyright permission.

Other rules still apply. Do not use another company's product name or logo on your packaging, because those can be trademarks. Do not copy their label text or photos, because those can be protected by copyright.

Selling food also brings its own rules: cottage food laws, licenses and labeling vary by state and sometimes by city. This page covers copyright and related protection only, and it is general information, not legal advice.

What bakers and sauce makers can protect instead

If the value of your product is the formula itself, copyright is the wrong tool, because it does not cover the ingredients or the process. Two other kinds of protection fit food products better.

A trade secret needs real secrecy. The USPTO lists the elements a trade secret needs and states: All three of the listed elements are required. If any one of them stops existing, the trade secret ends too. Publishing the formula, or sharing it with people who are under no duty to keep it secret, puts it at risk. Limit who knows the full formula and use written agreements with staff and co-packers.

A trademark protects the name on the jar, not what is in it. Circular 33 confirms copyright will not cover the name of a product or service, so a sauce or bakery name is a trademark question. Trade secret and trademark rules also vary by state, so check with a lawyer before you rely on either.

Where Nation fits

Questions about recipe copyright