Serious Eats - seriouseats.com

Wow, so I wasn't hallucinating. They did delete your post. Serious Eats, you should really be ashamed of yourselves.

Simon: We have nothing to be ashamed of. I answered your question about the original topic here.

well said, chaos. i'm really quite angry at this whole affair. Melissa is a good egg and if you really need the post carefully to understand what happened. I hope the Serious Eats will do a copyright and trademark post. When does a recipe become your own, how many modifications need to be made. I mean everyone has a potato salad recipe. If CI takes recipes from sources and modifies it to make their own recipe, aren't they doing the same thing? I really don't want to start an arguement or any trouble but I really would like know. When I have food questions one of the first places I come to is Serious Eats. If they can't address this topic who will?

My position is that unless you are inventing some new form of technology in the method of your recipe, there is no way it can be subject to any form of copyright. Period.

Using other sources' recipes just isn't as complicated a question as people make it seem, and I know there were threads in the past about this. As long as you change the words, you're legally fine. You cannot copyright an idea or a method.

I think dvchurch has it right: CI probably just doesn't want their name associated with recipes that are no longer "theirs." But I still think that's a question of what they want vs what they could actually make someone do. If the blogger wrote "adapted from," I don't see how CI could do anything beyond get annoyed.

And on the other hand, if you posted the same ingredients and method, using different language, you wouldn't be infringing their copyright either, and you wouldn't need to ask permission.

But I also think this is giving the PR rep the benefit of the doubt. She comically mishandled the situation.

That's funny because I could have sworn I've seen tons of ATK and CI recipes on different blogs over the years. Also, their chocolate chip cookie recipe with its special 'rolling and breaking the dough balls in half' and melted butter has been all over Recipezaar in various incarnations, sometimes credited, sometimes not and with occasional modifications in the chip amount or yield.

This really makes me think less of CI--like the above-poster said, how will you know if you like what they do if you don't get exposure to their style, and plus most of their recipes are already 'classics' even if they do test them to 'perfection.'

CI needs to update its conception of copyrighting. It's 2008. You can't hide information from people anymore. If the advent of the Internet killed your profits, then that's your problem. Good luck trying to stop Google!!! That train left the station about 10 years ago.

"recipes can be published and restricted by copyright,"

Thats part of the issue, you can't really.

"it's the law"

Uh, no, it isn't.

CI is quite within their rights to take wahtever steps they feel are approptiate to protect their "brand", (as is SE), but I agree that by being too aggresive they are sort of peeing into the wind?

As someone who has had their work stolen I am on CI's side. I don't often see reprints of cookbook recipes written on blogs--though perhaps I don't read enough blogs. I view CI/CC/ATK as an online cookbook, so I don't mind paying for access to recipes I would (and do) pay for in cookbook form. And I don't blame them for having a business that produces recipes that they are entitled to profits of.

How would so many of you feel if you worked hard on something, only for one person to come along and copy and paste and spread "their version" of what was yours and suddenly it no longer has any worth what-so-ever?

Why didn't she just ask permission? It appears from the very first email that was all CI wanted. Then she had to act fairly immature and get nasty, even more immature is that she has kept the recipe online.

I find MOST despicable those who have signed up as recipe testers, where the recipe specifically states to NOT SHARE ONLINE, yet so many people do. Do people really have nothing better to do, and no personal creativity, that they feel the need to steal someone else's hard work for what? Just to be the first to post a new recipe? I really don't understand the motivation behind that at all.

I just wonder how hard it would've been for her to say she got her potato salad recipe from CI and you can pay for their membership and obtain it, but she made changes a, b, and c to that recipe, without printing the whole thing.

I also find it funny how many of the commenters think that this will actually hurt CI in some way. I'm sure they'll do just fine, and I'll keep sending them my money because I happen to like a large number of recipes I've made, and techniques I've learned from them.

"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."

Emphasis mine. In the case of this recipe, it was not a substantial literary expression, it was a simple method for a potato salad, something that has been in common use for hundreds of years throughout many cultures. Surely CI can't claim to have invented potato salad.

Clearly you are not familiar with the concept of Fair Use. These are the four tests to determine Fair Use:

1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; - in this case, a blog for which she receives no compensation, and does it for her own fun and education

2. the nature of the copyrighted work; - in this case, a recipe, the copyright of which protect only the FORM, not the IDEA (see below)

3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; and - in this case, the ingredients list was used (not protected) and the method which was modified

4. the effect of the use upon the potential market for or value of the copyrighted work. - if I was a juror in a lawsuit, CI would have the burden of proof to establish that her posting this recipe did significant damage to their commercial interests. How many hits did that post get? Can it be proven that all the people who saw that recipe chose not to buy CI as a result? On the other hand, in her defense, it could be argued that in seeing that recipe on her site, people would want to buy CI as a result.

So as you see, her use of this recipe passes the Fair Use test.

Further:

"Copyright protects the particular way an author has expressed himself; it does not extend to any ideas, systems, or factual information conveyed in the work."

So, this means that if she had copied the CI recipe word for word and then claimed it was her own, CI would have a case. But, as she modified the recipe, and the IDEA of potato salad is not one that CI can claim to own, she was perfectly within her right to do what she did. By modifying it, she effectively made it her own, and wouldn't even have to credit them at all. No good deed goes unpunished though. Would it have been prudent for her to ask permission first? Yes, of course. Did she have to? In this case, no. That is the law. If you don't like it, change it.

I don't get it. She read a recipe and then made up her own based on that. I didn't see her original posting, nor have I seen the CI recipe. But I believe her when she says that her recipe was "Less mayo, more mustard, added vinegar, added eggs, omitted celery."

How is that not a new recipe and what right does CI have to ask her to remove it if what she posted was what she made in her own words?

I think the issue is that CI's publicist thinks that she can control what people say about recipes. I get that they may be frustrated that someone says "I hated this recipe I got off of CI" when they didn't even make it as published. But hey, that's life, people express stupid and wrongly based opinions.

Melissa should repost what she had earlier if it's not CI's recipe.

On the other topic, reposting with attribution may be common practice and folks may feel like they're giving someone "free advertising" but make no mistake, it's not. Advertising is when someone pays to say something themselves ... the rest may be publicity and not in their control (as is apparent here). I have stuff taken from my site all the time and while I let it go for the most part if it's attributed because it'd be worse for my publicity to go after little ol' bloggers, it is infringement.

@simon. Exactly. From everything I've read, this blogger was perfectly within her rights. The only thing at all sticky is that she attributed the *altered* recipe to CI.

I realize that many of you think it may be "wrong" or "unfair" that someone can republish a recipe of someone else's creating, but the fact is: they CAN. And legally. I've worked in publishing and have published actual recipes (for sale, which is where the real copyright battles come into play, but even those usually end with a quick "Cease and Desist."), from other publishers, just taking care to not copy the form... mix up the wording in the steps, and you're perfectly on the up and up.

You may not like it, it may not sit well with you, but CI is the one that's wrong here (legally). In fact, AK described her process entirely in her own words, which makes it seem that CI is even further from having any legal standing (though I never saw the original recipes).

Maybe there needs to be some changes to the laws, and have actual ingredients and processes fall under "intellectual property," but right now, it just isn't that way.

Okay ~ I say read all the recipes you want, decide what ingredients you want to use and decide what method you want to use to construct your dish, then call it your recipe. No one ever makes every dish the same way as another. Everyone has a recipe with a "family secret" for everything we eat, including New Age techniques. Then again those techniques were invented with the intention of being used by everyone, in a way that suits their particular passion and desired ingredient. SSSOOOO, the question remains: Is a recipe really the property of anyone? The answer would be; YES if you plan to duplicate it to the letter and attempt to claim it as your own, after is was it was published. The world of food and it's applications is completely unique to the individual making the dish. Take fried chicken for instance. Is there only ONE recipe? Sorry all, flabbergasted by the whole "vague" ownership issue.

kj, I agree entirely with your second paragraph, which is why I said, no good deed goes unpunished. If she had not mentioned CI, this whole thing would never have happened. I agree that they might not want their brand name associated with degradations of their recipes. I think that is the crux of the misunderstanding here.

As for the judgment call thing, well, that's not entirely precise. There are legal standards that define fair use. Again the four criteria, and the paragraph I quoted. Copyright protects the FORM, ie, the prose, the literary composition, an explanation of a procedure, not the IDEA itself. If they did, that would mean that once one person wrote a book about, say, falling in love, no one else would be able to write about falling in love. Even if they did it in different words.

Functional Ideas, otherwise known as technology, are protected by Patent Law, and the US patent office does not cover recipes. It will cover formula that it considers to be new technology, such as drugs etc. Try telling the Germans or the Poles or any number of people that you've patented Potato Salad and consider it proprietary technology, and you might have a war on your hands.

It truly is a fascinating topic. People have been cooking for as long as they've been, well, people. Cooking is something that changes, it evolves, it is passed on from one generation to another. It doesn't belong to anyone, it belongs to everyone. Again, unless you are inventing a specific technology, the idea of a recipe cannot be owned by anyone, only the words that they use to express the idea can be owned. And really, that's a good thing, for everyone. That means that we can share ideas freely, and the people who can write well about these ideas can earn a living for the quality of their expression.

No one has done more PR for CI than me. I have been a subscriber and buy annuals every year since the first one. I am offended! I think that she could have said to you something LESS insulting. We all post recipes. If I change 3 ingredients and ANY of the techniques its MY rendition/adaption, and thats the damn truth. No one has a copyright on freaking potato salad.
People been making it since forever. Someone needs to drop her an email (hehe) and tell her to stop the shit. We are not only subscribers and website PAID customers but we PR their company a lot.
I am going to wait and see what happens here. Surely no one has that much time to be checking food blogs for potato salad.
Deborah DO NOT beat on the very people who are your customers. That is just not smart business.
Melissa from now on give the credit where credit is due and avoid asshattery where it can be avoided.
I am sorry you were treated like a child by some officious person.
Now let's go make some brownies. Who is hungry?

@kjgibson, interjecting in your first question to simon: NO ingredients need to be changed, NO methods need to be changed. In the case of a recipe, that's not a subjective thing, there's no judgment involved; it's black and white. There are certainly a mountain of of copyright situations that are ridiculously subjective, but this isn't one of them. The only thing foggy at this point is whether the wording the descriptions/steps was a violation of copyright, but I don't recall CI ever making any accusation of that; they were just pounding on about *their recipe*, which they simply can't claim legal ownership of. I completely agree with you, though, about CI's rights to control the use of their name.

@producestories, I appreciate your comparison music downloads, but that argument isn't valid in this context. Music is considered intellectual property protected by copyright law whereas recipes are not. Here, straight from copyright.gov:
Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.
Recipes fall under ideas, systems and methods of operation. The whole idea of Fair Use, at all, in this situation is rather irrelevent, since the subject requires copyright protection in the first place to be subject to Fair Use. Recipes aren't protected, so "all's fair"! (Except for the style and form of descriptions and methods, as mentioned before... and that's only because that falls under "literary" works, which are considered intellectual property).

@Tactful_Cactus - I was responding to a previous post about Fair Use which brought up this point. My understanding of copyright as it applies to recipes is that it is not a black or white issue, and this seems to be the understanding of most posters here, as it is the understanding of the author of multiple cookbooks who taught my recipe writing class.

Where to draw the line between paraphrased and newly-written directions is one consideration - and because wide usage of the internet for recipe dissemination is relatively new (like with music), there is little precedent to look to in determining exactly where to draw copyright lines when it comes to recipes. My point above was simply that the first clause of Fair Use wasn't applicable to this situation regardless of whether a copyright had been violated or not.

Yikes!!!!!!!!!!!!!!!!!!!! I'm going back to "Best Bratwurst". Less hostile.

@producestories -- ah, okay. Sounds like we were mostly on the same page about many of the points, then. I misunderstood the focus of your argument.

@kcogswell... hostility? Nah. All I see is some spirited debate. I think it's a good, healthy, stimulating thing...

...you donkey! (kidding)

@simon, that isn't really a full scope of Fair Use and its applicability to this issue. Whether or not the distribution of the copyrighted material is in a medium that makes money or not has nothing to do with Fair Use. Schools, editorial application (etc.) are distinct exceptions from this because of the social value of their redistribution ("for the greater good", basically). You *can not* use somebody else's copyrighted work unless you fall into one of these categories. To be considered a "non-profit", there are many more qualifications other than whether you make any money or not. Argueably, a blog like this might be considered "editorial", which could have a greater application of Fair Use. What comes into play here even more is the part of Fair Use that considers whether or not the use would affect the value of the copyright holder's work, which in this case, the dilution through distribution of the recipe would affect value. But, again, it's a moot point since Fair Use only applies to copyrighted works.

If I start a free fan site for, say, Andy Warhol, where I'm not making a penny. I still can't use images of his art with out permission (from the artist's estate and the photographer who took the image of the artwork).

Regardless, the only part of the recipe that's even subject to Fair Use is the literary part, since the rest isn't protected by copyright in the first place.

@HeartofGlass, oh that is ironic. I wonder if Warhol's cans would somehow fall under the "parody" aspect of Fair Use... hmm...

..sorry for flooding this thread, especially with something semi-off-topic... double posting because that Warhol thing got me really curious. Looks like Warhol actually might have gotten permission from Campbell's. Here's the credit line on MOMA's website: "© 2008 Andy Warhol Foundation / ARS, NY / TM Licensed by Campbell's Soup Co. All rights reserved.".

Something like that would involve both Trademark (the logo) and copyright (the can's design).

What a fascinating thread to come home to. Here's what I think about the CI situation. Before I start, let me say that we at Serious Eats have always had a terrific relationship with the Cook's Illustrated folks. They have been generous when we have asked to use their recipes, but I don't think we've ever adapted one of them. Cook's Illustrated's beef with Aloha Kitchen is not a legal one. It can't legally stop someone from adapting one of its recipes, since by definition a recipe adaptation is not copyrightable. So even though CI probably genuinely believes in the sanctity and perfection of every recipe they develop and would like folks not to adapt them, they can't stop people from doing it.

That said, if that's how they feel, we will respect their wishes at Serious Eats. Other blogs and print publications may decide differently.

I'm working on a more general post on the issues raised in this thread. Stay tuned.

Yes! Thank you Ed.

what cooks illustrated fails to come to terms with is the simple fact that taste is subjective. i have followed their recipes to the letter, sometimes against my better judgement, because they are so insistent that they are correct. often i have not been all that thrilled with the results, because they don't please my particular individual palate. i've also bought brands of things they recommend and thought they were awful {case in point: about ten years ago, when they panel tested brands of spaghetti, their tasters hated barilla pasta, my favorite supermarket brand, and loved ronzoni. so i bought some ronzoni. i hated it, and promptly went back to my beloved barilla}.

they can test their methods all they like and claim to have the ultimate solutions for things, but if your mother always burned the toast in the morning and you loved your mother, chances are that you will harbor a fondness for the taste of char in the morning.

the fact that they object to people adapting their recipes to suit their individual tastes is ridiculous.

^^^

*Blush* Thanks Hillary!

Hi all. I just wanted to pop in and say thank you for having such a spirited discussion about this fight I had with Cook's Country. And thank you for being supportive for the most part (simon, you worked hard on this thread, wow!). As for my detractors, I liked reading your comments as well and I am grateful to hear opposing points of view. I do admit I was rude right back to that gal, as it was rather hard for me not to be. I aspire to be a person of kindness and respect, but I am only human.

Ed - can't wait to see your thoughts.

The thread was removed by SE due to the nature of the post. Tough decision, but they do the right thing.

@Cassaendra: I brought up the Warhol issue, not because it is a perfect analogy--I agree that recipes are completely different--but to make a point that even with trademarked brands, there is a lack of a clear-cut demarcation between what is protected and what is not. Parodying, for example, or recontextualizing the image and making it into something 'different' as with Warhol.

@Melissa, of the original blog post--apparently if you had called your recipe a 'parody' of the analness of CI it would be protected, legally, by all stretches of the law!

@cybercitaI should note I LOVE Cook's Illustrated and America's Test Kitchen inspired me to begin cooking--but they do seem to have a peculiar attitude towards cooking, at times, I have heard representatives of the magazine say that they don't like people to tinker in interviews, even though, as noted, their own taste tests yield wildly different results--when Chris tastes stuff on the PBS show, he often likes different products than what the magazine tests yield. And yes, I once bought Reeces PB because CI recommended it one year only to be quite disappointed--I believe Hellmann's and Heinz or Hunts rated higher than home-made condiments because of familiarity.

There is a very, very illuminating interview on recipe substitutions with Chris Kimball from CI in The Washington Post which I read some time ago:

http://www.washingtonpost.com/wp-dyn/content/article/2006/10/10/AR2006101000221.html

You'll have to register to read it, I believe--I would post the whole thing, but don't want to stimulate any more site-related debates!

@Alaina ~ Oops! I read annette's post incorrectly. Sorry.

Okay, so, long story short. . .

If you want to want to use a CI recipe on your site:

- Never mention CI at all -- not even generically (e.g., "a leading print and online 'test kitchen'")

- Reorder and/or tweak the amounts or types of ingredients

- Change the wording of the instructions. Also, if CI lists three steps, make it four -- if they list five steps, make it seven.

The most important of these rules? Number 1. Don't mention CI at all.

THAT'S what ol' Deb has helped CI achieve. Nice, isn't it? :)

Happy cooking!

Love,

PR Guy with almost 20 Years of Experience

As a perpetrator of sharing CI recipes (I'm a paid subscriber), and also a newbie to SE and blogs in general, I was surprised a recipe I'd posted had been removed. I may be naive, but I figured out why pretty quickly I understand and I'll respect that in the future. They don't want us to share. I believed it was acceptable, as long as credit were given where credit is due. When I need to know something about a product, recipe or technique, I usually go there first. It truly is a wealth of information. The $ is actually a sacrifice for me on my budget, but worth it.

I found the Post article interesting. It hasn't changed my opinion that Christopher Kimball is a prig, but I respect his work. He mentioned Rachael Ray a couple of times. I don't respect her work and I think she is a phony, much more so than he.

Now, I'm left wondering - am I also not permitted to share equipment and product recommendations from CI as well? How far does this go?

PerkyMac & Cybercita: Yes, that is how I feel about Chris Kimball, too--I find his priggishness oddly compelling, even if I don't agree with him all of the time. ATK wouldn't be so funny without his fussiness and bow tie. But the level of censorship I still find a bit disturbing, and given that I get my ATK recipes from the library and don't pay, and watch PBS and don't pay, their fanaticism seems misplaced on this issue, and erring against censorship seems to be the wiser policy.

I think the law is still wrestling with intellectual property in a number of spheres. And recipes, from Tollhouse to Neiman Marcus, to the ice cream cone, have always had a strange history of 'who discovered it/owns it'

I know that if I had been contacted in such a way I likely would have pulled down my recipe/post right away. Knowing what I do now, though, that won't be happening. And I really wanna look up some CI recipes and alter the beejeebers out of them for my own blog. Sorry, but such a PR gaffe needs to be played on, dontcha think?

Personally, I think that the CC pr person needs to be re-assigned to a new department. Something like, janitorial work would suit her personality better. Something where she doesn't have to deal with people and be nice to them. Her tone was condescending and ignorant. Her *job* is to promote CC in a positive light, to handle publicity issues with class-- no matter what is being flung in her direction (and I am not saying Melissa acted out of line, just saying in context of someone who is supposedly dealing with the public on a daily basis). At the very least, some re-training in customer service is definitely in order.