illegal or not?

Pull up a chair. We're gonna be here for a while. But I had to post this before getting back to my normal meal-related programming.

Last week I posted about my weekend (belated) 4th of July food. In that post, I listed a recipe for potato salad, modified from the original source - in this case, Cook's Country, aka one-third of the conglomerate that is rounded out by America's Test Kitchen and Cooks Illustrated. And though I made numerous modifications to the recipe, I credited Cook's Country as the original source.

Though not well versed in the specifics of the law, I always thought this was an acceptable practice, regardless of where you found the individual recipe. So imagine my surprise when I received this email from their publicity company, Deborah Broide Publicity, the following morning.

Deborah: Hi. Please remove the recipe from Cook's Country. Permission was not giving to use this recipe (as I'm the one who gives permission). In the future, if you'd like to use a recipe simply email me first. Also, we do not allow our recipes to be modified (in print). Many thanks!

I was a bit taken aback, to say the least, and admittedly irritated. I was getting ready for work, but in the interest of a quick response, I replied:

Me: I'll take it down when I get to work.

I then continued after I arrived. I wasn't going to post this whole exchange, but I think it's kind of fundamental to the story, so I did. If you read it and think I was being rude or bitchy, then I apologize. I can only say... *laughing* you shoulda known me five years ago. This is downright Zen for me.

Me: So even if I ask your permission now, I can't even mention that I made three modifications to it? (Note: I actually made more.) People make modifications to other people's recipes all the time. It's part of the food blog life. But if I can't even talk about it, then I won't print the recipe at all.

Her: Sorry, no modifications allowed. Our recipes are tested up to 100 times for a reason (i.e. because they work). Let's agree to disagree and please don't print our recipes at all (as they are copyrighted). Thanks!

Me: Fine. I'll come up with my own potato salad recipe next time and pretend I never saw this one.

Her: It sounds like you are having a bad day. I hope it gets better!

Me: By the by, I'm not sure why or how you honed in on me, of all bloggers. Your recipes - including this one - are reprinted everywhere and other bloggers I know have never asked your permission either.

And I find it rather pretentious of you to assume that your recipes are so perfect that no one should be allowed to say that they modified them. What right do you have to tell me I can't?

Her: Honestly it's not just you. We have a team that asks bloggers to remove recipes -- we can't get to all of them but we are working our way through. It's nothing personal. That said, as the PR person -- of 14 years -- I give permission to tons of food bloggers to use recipes. They shoot me a quick email first, and they agree not to change the recipe. I even agree to send them photos etc. to help them. Again, our recipes are copyrighted (i.e. it's illegal to use them w/o permission). Have a better rest of the day. Sorry you are so angry/annoyed.

Me: Deborah, I appreciate that you are trying to play the bigger person and be all kind and patient and whatnot. That's my typical M.O., as I consider myself a spiritual and loving individual. But stop talking down to me about it. It's not necessary.

I'm simply annoyed about the modification part. People modify recipes all the time to add their own nuances to it. EVERYONE does that. I guess your recipes are more perfect than everyone else's? I just don't get that, I'm sorry.

From now on, I just won't use any of your recipes. There are plenty of other resources out there. I will also never purchase anything from America's Test Kitchen/Cook's Illustrated/Cook’s Country because apparently, our philosophies seriously diverge.

Her: Again, it's illegal to use our recipes w/o permission (and we do know who uses what. We get daily updates every day). You don't have permission. Enough is enough, don't you think?

Me: Yes, I get it. I'm not stupid about the copyright issue. It's removed. However, I was just informed by a wonderful cook friend that lists of ingredients are not copyrighted, only method. So I know how to avoid the land mines next time, yes? Later.

Her: Please do not email me again. I'm asking nicely. Thanks!

At this point, I felt humiliated. But still irked. The key issue here for me was the modifications. I had always read, and thought it was implicitly understood among us food bloggers, that if you made 4 or 5 modifications to a recipe, it was more than okay to post it and giving credit was just being polite.

Unfortunately, that doesn't seem to be the case for ATK/CI/CC. At least they don't seem to think so. While hunting for information about recipes and copyright law, I found an interesting cnet article with the following excerpt:

Even the very nature of recipes is based on taking others' ideas and making slight changes to them to suit individual tastes. Katherine Bell, online managing editor for America's Test Kitchen, acknowledges that recipes are a unique case when it comes to copyright infringement because just about every recipe is based, at least in part, on a previous one. She gives the example of a recipe for no-knead bread that appeared in The New York Times. The recipe proved wildly popular, and recipes for similar breads have been popping up in cooking sites and magazines since.

"It started as the idea of one person in New York and now it's a whole new genre of baking," Bell said. "That just illustrates how every recipe owes a debt to something before it."

and further:

"To some extent, it's great if people are talking about our recipes in other places," said Bell, from America's Test Kitchen. "It's publicity." But there's a limit to what is acceptable use.

America's Test Kitchen is a small outfit compared with the family of cooking magazines from publishing behemoth Conde Naste. It sells a bimonthly magazine called Cook's Illustrated and charges an annual subscription to access its recipes online. Being a small company that puts a lot of labor into developing each recipe--America's Test Kitchen can sometimes test a recipe up to 100 times before it's been perfected--it's in a unique position.

"We have more to lose (than other recipe sites) if people are posting our recipes online because we have fewer recipes, we've invested a lot in every single one, and there would be no reason for people to pay a subscription if they can get our recipes for free," said Bell.

If a Web site has reposted one of America's Test Kitchen's recipes, the company will ask that the site take it down. "But in practice, we're not out there patrolling the Web," Bell said.

According to my email with Deborah:

We have a team that asks bloggers to remove recipes -- we can't get to all of them but we are working our way through....

(and we do know who uses what. We get daily updates every day).

'Kaaaay.

All that aside though, the concern of ATK/CI/CC seems to be that if someone publishes their recipe, they will suffer a financial loss due to people being able to access their stuff for free as opposed to paying the online subscription fee.

That seems to me to be a rather ridiculous point. I mean, I can see their side of it to some extent. But considering the number of recipes of theirs that have been posted on blogs and forums (and for god's sake, it wasn't just me, the number is really rather high), and the fact that they have still prospered, even excelled in readership and sales this last couple of years, that argument loses some steam.

And what bothers me the most is that they don't "allow" modifications. WTF?? I mean, seriously. Isn't that part of being a good cook? Modifying recipes to suit your and your loved ones' tastes? I thought that's what I was supposed to be striving for as a cook! And she wants to tell me that I CAN'T?? Because their recipes are PERFECT? *Cussing like mad*

But all this is getting away from the fundamental problem. The fact is I didn't do anything wrong. Copyright law regarding recipes is vague, to be sure. However, there are, in my opinion and, more importantly, in the opinion of numerous patent and copyright attorneys, two clear points to be made, specifically as they relate to what I posted.

1. A list of ingredients cannot be copyrighted.

This is a point that is not up for debate. Even if it were, I didn't post their list of ingredients. I changed it by 4 ingredients.

2. Directions and methods can only be subject to copyright if they are "substantial literary expression."

And just what is substantial literary expression? Well, luckily (or not), I've read far too much on the subject the last few days and have come up with a pretty decent way to describe it. What it means is that someone has to have verbiage in their directions that is unique or personal. Anything else is public domain. For example, there are only a couple of ways you could say "heat oven to 350°, cook chicken until no longer pink." But if someone said they preferred a certain type of dough, or reminisced about their childhood, or used some really specific personally invented method by which to execute the recipe, then that may be copyrighted as "substantial literary expression."

Well guess what? No shock, but this recipe didn't have anything that could be considered substantial in terms of its instructions. There were directions like "bring to boil over high heat, add 1 tsp salt, reduce heat to medium-low, and simmer until potatoes are tender, 10- to 15 minutes."

Um. Yeah. I know how to do that in my sleep. That's common knowledge, not unique instruction.

Granted, if I wanted to avoid the issue altogether, I could completely rewrite the directions portion of the recipe, right? Right. So I now present to you my recipe for potato salad. And you know what? I'll be honest. It's not even that astounding. It's classic American fare and if I had to rate the original recipe on a scale of 1 to 10, it would be about a 6. Mine is maybe, maybe an 8, in terms of what this is. But like I said, it was my first potato salad, so I can always play around. I'm just posting it to prove a point. Pardon any stupid phrasing or grammar in directions, as I was simply reinventing the wheel. ;)

Potato Salad
INSPIRED BY (UGH) you know who and you know from where... fuckers

Ingredients

2 lbs Yukon Gold potatoes, peeled and cubed
1½ tsp salt, divided
3 tbsp dill pickle juice, plus ¼ cup finely chopped dill pickles, divided
3 tbsp yellow mustard
¼ tsp pepper
½ tsp celery seed
6 tbsp mayonnaise
¼ cup sour cream
½ small red onion, chopped finely
2 large hard-boiled eggs, peeled and diced

Directions

Boil potatoes with 1 teaspoon salt until tender. Drain, then place on baking sheet. Mix 2 tablespoons pickle juice and 1 tablespoon mustard together and evenly coat potatoes with mixture. Chill in refrigerator.

Mix 1 tablespoon pickle juice, chopped pickles, ½ tsp salt, 2 tablespoons mustard, pepper, celery seed, mayonnaise, sour cream and red onion. Stir in cooled potatoes and chill. Stir in diced eggs before serving.