Some Bites About Rights

If you’re visiting me via a link from the forums of Susan Maria’s Bariatric Eating website, a special welcome!

Reader Kir was kind enough to point out to me in a comment to the site on Sunday, February 25, that Susan Maria had used one of my recipes and its photo without acknowledgement in her recipe section. The one used was probably my first big “hit” – Asparagus & Edamame Salad with Green Garlic. The ingredients list had been changed somewhat – she’d replaced the green garlic with one clove of garlic, omitted the fennel and reduced the mustard, and changed the way some of the measurements were expressed, but the instructions remained almost exactly the same. You’ll have to take my word on that, as I was tired and didn’t think to save a copy of the page for later.

I dropped Susan a note via a link on her website, letting her know that I don’t permit use of my content without acknowledgement, nor on sites that sell products, nor do I allow my photos to be used for recipes that are not as I originally wrote them.

Susan wrote back, and though she didn’t apologize, acknowledged that she shouldn’t have used the photo and said that she would remove it. She also stated that she was using the recipe as inspiration, and that she had adjusted the quantities to make them suitable for her audience. She also wrote a response to Kir on her site’s <a href= Kir also noted that on the Bariatric Eating site’s forum, the tone of which I’ll let you judge for yourself.

When I checked the page shortly after receiving her email, she had removed the photo and had rewritten the instructions for the recipe so that they no longer substantially resembled mine. Looking around the recipe section, I did notice a lot of different recipes with varying photography, both in style and level of professionalism. It made me think I might not be the only one who had had content borrowed.

The Washington Post, my hometown paper, did a story recently with the title Can a Recipe Be Stolen? and I had been following the scandalous story about the lifting of recipes from Alinea. That was one of several issues mentioned in this article by Pete Wells in Food & Wine.

Handling intellectual property issues is actually one of the things I do in my work – one of the glories of a small organization is that I get to talk with the IP lawyers on a regular basis. I’ve learned a lot from working with them, and from my own reading, and actually, this is something I’ve been reading a bit about recently. (Though, as the acroynym succinctly puts it, IANAL.)

So, for the record, here’s some information on copyright as it pertains to food blogs in the U.S.

Your ingredients list itself isn’t copyrightable.

Check this page from the U.S. Copyright Office, which puts it straightforwardly:

Mere listings of ingredients as in recipes, formulas, compounds or prescriptions are not subject to copyright protection.

But your instructions and the whole are, if certain conditions are met.

Here’s the next sentence and the following paragraph from that page:

However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a combination of recipes, as in a cookbook, there may be a basis for copyright protection.

Protection under the copyright law (title 17 of the United States Code, section 102) extends only to “original works of authorship” that are fixed in a tangible form (a copy). “Original” means merely that the author produced the work by his own intellectual effort, as distinguished from copying an existing work. Copyright protection may extend to a description, explanation, or illustration, assuming that the requirements of the copyright law are met.

Another thing about copyright that a lot of folks don’t know:

You don’t have to put the © mark on your work for it to be protected under copyright.

Check out this paragraph about how to secure a copyright from the U.S. Copyright Office:

The way in which copyright protection is secured is frequently misunderstood. No publication or registration or other action in the Copyright Office is required to secure copyright. (See following note.) There are, however, certain definite advantages to registration. See “Copyright Registration.”

Copyright is secured automatically when the work is created, and a work is “created” when it is fixed in a copy or phonorecord for the first time.

This is important to know, because part of what it means is:

Just because you don’t see a © present does not mean the work is not copyrighted.

And the hits just keep on coming from the good ol’ U.S. CO:

The use of a copyright notice is no longer required under U.S. law, although it is often beneficial.

So what Susan did in re-writing the instructions and taking down my picture was the right action to comply with the letter of the law.

The other place I’ve been following this discussion, however, is on food blogs, where the conversation goes beyond copyright into ethics. Makiko at Just Hungry put up a post on the topic, inspired by the Washington Post story above – here’s her followup, where she responds to comments left to the original post.

It was an interesting conversation, and Makiko put up her own thoughts about how to deal with using others’ recipes, which I agree with, and are actually the unwritten code that the vast majority of food bloggers seem to abide by:

Mention the source, and link back to it.
If the site already has the recipe posted, don’t re-post it, unless you make major changes to the original.
Never, ever hot-link to the photo(s) used in the original, or just copy the image and put it up on your own site. Take your own pictures!

That, food bloggers seem to agree, is the right way to handle using someone else’s recipe.

I mentioned at the beginning of this post that the Asparagus & Edamame Salad with Green Garlic had been probably my biggest hit. Alanna Kellogg, who writes the wonderful Veggie Venture, was the first person to pick up on that recipe. She suggested I submit it to an asparagus roundup, which I did, and that was what gave me my first big round of visitors.

And guess what? Alanna later did her own version of the recipe, adapting it to her own taste, taking a picture of it, and giving me credit for the inspiration – which delivered me another nice round of traffic. That’s just the way it’s done.

Food blogging is something like sharing recipes at a coffee klatch. Each of us is here to create individually. We’re all cooks, and writers, and photographers, and our skill levels at all of those things vary. Some of us are paid to do one or more of those things as it relates to food, some are amateurs. As a group, we’re here to encourage, inspire, and teach each other. It’s a way for all cooks to get feedback and new perspectives – a way for novices to join a community of experts, and for experts to have an opportunity to help others by sharing their expertise.

That’s why I food blog. Because of my love of food, and my love of creation, and my love of what community can do in conjunction with food and creation. Good food is better when it’s shared.

And credit – well – credit is better when it’s given where due.

8 thoughts on “Some Bites About Rights

  1. Welcome back, Jocelyn ~ though I’m so sorry that it’s this that compelled you to write. We all have so much that is originally ours: why in the world do we feel compelled to steal it from others? I’m told by a long-time national food player, however, that Martha Stewart was/is a master at this game, notorious for lifting a recipe, changing the ingredients by a quarter teaspoon and then calling them her own. And writing online, especially, is just so EASY to link/credit, there are no space limits. Hmm. Maybe there IS a limitation, and that’s honesty.
    I hope you’re well enough to write again and that it’s sweet stuff from the kitchen, that calls you to do so.

  2. Thanks, Alanna, you’re the best. Having “grown up” in the East Coast specialty cheese world, I’ve heard my share of Martha Stewart stories too, though one thing I always try to hold in my mind that everyone’s a human being and none of us know anyone’s whole story but our own.
    I want to get back to it – baby steps. I have been doing some cooking – I think what I need to do is decide not to care too much about how the photos look and just get something done. Of the triumvirate of food blogger skills, that’s the weak one. (Same sort of thing kept me from being a triple threat…singing, yep, acting, you got it – but I’m lousy at choreography!)

  3. Excellent post Jocelyn. You make a lot of great points.
    Keeping in mind that food blogs are international, it might be useful to keep in mind that most countries adhere to the Bern Convention (Wikipedia entry on the Bern(e) Convention –
    In practice though, it’s almost impossible to keep people from stealing online recipes. I’ve had so many people just lifting whole recipes off my site that I’ve more or less given up on it. I’ve gone after them sometimes but you never known the reaction you will get. If you’re lucky, they will either take it down or alter it (as in your case). If not though they will either ignore it or be very rude to you (telling you to f*** off, and that ‘anything online is free’ etc.) But given a choice between taking all of my content offline and dealing with the occasional stealing bastard, I’ve chosen the latter, so far anyway.

  4. Thanks for the international perspective, Maki – I’ll be sure to read up on the Berne Convention. (Does it reveal that I’m a total nerd that I love reading about legal stuff? I confess, I was reading a U.S. Supreme Court opinion earlier today.)
    I’m sorry to hear you’ve had so many instances and such mixed results, but I suppose that’s a reflection of the range of humanity. It does give me pause about putting up new content, and that’s sad – the whole idea is that we share and give credit, and it feels really bad when that’s violated.
    We actually found out here about some plagiarism of my husband Professor Chimp this week too – some advice he had on his website telling his undergrad students how to write papers in his particular subject seems to have somehow found its way into the Yale Daily News Guide to Writing College Papers verbatim – some of it attributed, most of it not.
    I suppose we should be glad we’re in demand!
    Thanks again for stopping by.

  5. Thanks for this post. I am very upset to find that at least 2 of my photos and recipes appear on her site. Looking at her forum post, her attitude–that your photo wasn’t copyrighted–is appalling and ignorant.
    My site has always contained a copyright notice, so she can’t make that claim. Still, being the confrontation-hating person that I am, I’m not looking forward to contacting her about this. But it must be done.
    I’m wondering, isn’t there any punishment for copyright infringement? She just continues to get away with it until individuals notice her theft.

  6. Oh, Susan, I’m so sorry to hear that your recipes appear there as well. Please feel free to spread the word to others – it can’t just be the two of us. This sort of thing is unlikely to get legal action, true, but all food bloggers really want is acknowledement and not to be stolen from. A little grassroots action can make that more possible.
    Though I wouldn’t pick this as the circumstances, it’s a pleasure to meet you – I’ve really enjoyed checking out your blog in the past, and especially admire your photographs!

  7. Interesting timing – I just posted a series of recipes from a bunch of different food bloggers, all based on a theme (vegetables – big surprise, eh?!). Before I did so, I asked (and recieved) permission from each. It generated discoussion about copyright among some of us, and I wish I had read your excellent entry earlier. Quite fascinating; thanks so much for running it. Cheers!

  8. Thanks for the note, AV. Sounds like you did things just as we food bloggers all seem to agree they should be done: fairly!

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