Recipe Copyright: Blogger v. ATK/Cook's Illlustrated

A PR person for ATK/Cook's Illustrated contacted a blogger about a modified recipe she posted for potato salad, and acknowledged that the original recipe came from Cook's Country. She was asked to remove the recipe. A partial transcript of the weird exchange:

Alosha's Kitchen: illegal or not?

I can see several facets of this story. First and foremost, it is almost unspeakably ridiculous to insist that a pretty standard recipe for (of all the goddamned things) potato salad is substatially copyrightable. Yeah, ok, good one; now go do something productive with your time.

Second, however, I might be able to understand an objection to having their name attached to a modified recipe, if it's not crystal-clear that the blogger has made adaptations. Doesn't seem that this is the main thrust of their argument, though.

But most importantly, I think you've got this in the wrong thread.

Fascinating story...and the comments she's received are fascinating as well. One would have thought that even in a smallish outfit like that, the PR people would have to have some elementary knowledge or education about the nuances of copyright law, if for no other reason than to avoid embarrassing themselves like they just have. Foolish, foolish, foolish....

It also fascinates how the rules of the game have changed so much. In the past, this kind of bullying could be done with impunity. I have seen this exchange mentioned on several food-related web sites. Can you imagine how much negative publicity will result? One hopes the blogger has accurately described what really happened.

Just what I was typing: Not to mention that they'd have some knowledge of preventing bad PR! They may be shooting themselves in the foot, now, because she outlined the law clearly and exactly how posting one of their recipes isn't illegal.

It would seem that Cooks is most annoyed about being listed as the source, which is interesting...

I see both sides of the coin actually. If you're going to post a recipe from CI and then adapt it in some way, then it's not a recipe from CI and therefore shouldn't be cited as such (maybe this is what the PR person was getting to).

Also, there's always a sense of frustration when you'd like to share a recipe on a forum but feel like you can't based on copyright law. It seemed like she was trying to give credit to CI but then mentioned that she made a few adaptations.

CI seems to look at their "competitive advantage" (something their willing to protect) as having the ultimate recipe after trying 100's of ingredients and techniques. If you change it and still cite their recipe, well, it's then not what they've developed and they probably don't want their name/recipe misrepresented.

I think most people are not malicious and will go out of their way to rave about a recipe source or cook book and then post a great recipe from it.

I guess the lesson here is that if you're going to recommend that a recipe be followed verbatim, then post the source; if not, post your own recipe with your own verbiage for prep and mention that it is a combination of a few classic recipes with your own ideas thrown in as well.

tyrus wrote:I see both sides of the coin actually. If you're going to post a recipe from CI and then adapt it in some way, then it's not a recipe from CI and therefore shouldn't be cited as such (maybe this is what the PR person was getting to).

I'm not sure I see that side. As she said, people do this all the time. I've posted dozens of times on this board about how I took Pepin's reicpe or CI's recipe or someone else's, modified it thustly, and here's my new one. She's not saying that this is their recipe, but that it's the recipe was the original source--like a bibilography at the end of a term paper.

I think in addition to misunderstandings about copyright (which the blogger ultimately got right and the PR person got wrong), there are some misunderstandings about attribution and trademark at play as well. It's not illegal to mention that a recipe is adapted from another source if the reference is factual; it may be an issue if there is some suggestion of endorsement by the original source. I'm not sure how the original post of this recipe by this blogger referenced the source (as it has been taken down), but there seems to be, based on common usage, an understanding in the food press (blogs included) that stating "inspired by" or "based on a recipe by" is not suggesting endorsement of the modifications by the original author.

I think we're also working under the assumption that the person from Cook's is actually speaking full company policy - I'm guessing it's just some average joe who's been given the task of googling all day for company-related keywords and responding with a canned email, without sufficient resources for an exchange. What I don't understand (and so often don't, with these kinds of escalating customer service issues) is why this didn't immediately get kicked upstairs to somebody who DOES know the law and has the resources, especially since bloggers so often post this stuff publicly. I'm sure they won't miss Alosha's money, but they might miss money from her indignant fans...

I know that my brother once had a client years and years ago who asked their firm to google the web in search of negative hype, and then to respond with positive hype (which I think, fortunately for everybody, they refused to do)

I think we tend to overestimate the effect of "negative publicity". I would guess that the fraction of subscribers who ever hear about this incident (and others like it) is incredibly small.

Plus, presumably ATK/CI/CC believes they will have fewer subscribers if their recipes were freely available.

In this particular case, it seems like the blogger was in the right, based on the law. But in cases where ATK/CI/CC has a legitimate claim, I don't think it is accurate to say that they are shooting themselves in the foot by standing up for themselves.

Hi,

The Chicago Tribune adapts every recipe used in their food section. They include attribution, though none are taken verbatim from the original source. It not only keeps Donna Pierce employeed, it also saves them any legal hassles.

Ourpalwill made a lasagna, featured in the New York Times, for an Inspiration Cafe dinner. Donna Pierce wrote a story about our efforts and the Chicago Food community. In the Trib article was Will's recipe from the NYT, which was also adapted. I think the recipe's origins was from a third party, both the NYT and Chicago Tribune's adaptations were similar and not the same.

Some years ago, a woman won $25,000 for a chicken recipe. Abby Mandel, who had a syndicated column, was the apparent source of the recipe. The ingredient list was the same with one exception, instead of "salt and pepper to taste," it was "1/4 teaspoon pepper and ..." I don't recall any discussion on the method, which maybe the woman rewrote. The focus was on the list of ingredients, which irked Abby. However, as I later learned, the list of ingredients cannot be copyrighted and thus no real legal action could occur. However, Abby had the power of the pen and friends to help pass on the information.

It boils down to list of ingredients are not copyrighted, the process narrative is copyrighted. Legal replication requires adapting a recipe with attribution.

While CI's PR person was mistaken on this occasion. They certainly should fight these issues when they are executed wrong. Just a few months ago, Bill Daley's article on cooking from the internet with quotes by LTHforum posters suddenly popped up in Australia. The Chicago Tribune and Bill were hot as mustard to track down whoever poached this article.

Regards,

Kalyn from Blogher / Kalyn's Kitchen posted about this today:
http://www.blogher.com/food-bloggers-are-abuzz-about-right-post-potato-salad-recipe

Lots of heavy hitters on that network that reach thousands of potential/current CI customers. It's pretty safe to say that they're in a LOT of trouble.

OK, even more interesting...I went to the Cook's Country site to see if they were offering any spin, and noticed they have a message board...and on their own message board is a thread entitled, get this, Modified Recipes.

For crying out loud! They clearly need to fire their PR firm!

Mhays wrote:OK, even more interesting...I went to the Cook's Country site to see if they were offering any spin, and noticed they have a message board...and on their own message board is a thread entitled, get this, Modified Recipes.

How funny!

Um....we've all made the assumption that the CI pr person really exists. Not that I want to imply the blogger didn't experience the quoted exchange....I'm just saying...the pr person's comments are SO stupid and SO off base that maybe it didn't originate at CI afterall.

That's all I'm sayin'

This could be a case of a summer internship run amok. I got a similar lawyer letter about one of the web domains that we administer. It was a cease and desist order telling us that the use of the domain name was in violation of their copyright. The only problem is, the website belonged to the company in question. That's right, their lawyers were telling their own company to take down their own website. It turns out, this was the result of an overzealous law department summer intern who was given the make-work job of Goggling the company's name on the inteweb and going after perceived trademark infringers. Everyone involved ended up getting a good chuckle out of that one.

Hi all. Thank you for another (and one of the first) thoughtful discussion on my post. I had to reply to just a couple of remarks:

1) I did post what actually happened. For one, I have the integrity to do so, though I know that with the internet, it can be hard to trust that. And two, if she came back around and read the exchange and I had lied about it, she could simply copy her email and post it and call me a liar.

2) She is not an intern, she is their actual publicity rep.

Thanks again for support/criticism/encouragement. It is all so much appreciated!

Assuming the actions of the PR woman were portrayed accurately (no reason to doubt that) and reflect, at their core, some directive from Cook's Illustrated et al, it seems odd to me that modification is one of the sticking points. I think that most people turn to this publisher for tried-and-tested methodology rather than a source for innovation or inspiration. Note, I said most. Of course, any confident and so-inclined cook will suit something to her taste. But my guess is that if they are worried that their adulterated recipes will somehow diminish the brand, that these core customers are less likely to encounter them on a personalized food blog where customization is common.

Anyway, I will continue to purchase, read, subscribe to and consume CI and ATK products (not so much CC). I find it nearly laughable that they are referred to as a conglomerate, though I suppose that is what they are.

To put the issue in another context, what do you think about handing out maps reading Rand McNally at the top that I have digitally altered so that all roads lead to Rome?

Well, but to compare here you'd have to say they were inspired by Rand McNally, in which case I wouldn't have a problem.

At any rate, I find the whole thing a bit odd, and I do agree that CI is more like a little mom-and-pop operation. I don't mind CI charging for the use of their website, considering their dedication to preventing conflicts of interest with advertisers. However, I usually subscribe for a month, get what I need, and unsubscribe (and typically buy the magazine similarly, in single copies) While I like the quality recipes and the TV show, I don't find it enjoyable enough reading to warrant a subscription - unlike Gourmet and Bon Appetit, (yes, I read them for the articles!) whose free website I use all the time, although I am a subscriber. I don't even mind that CI protects this asset: it was more the global implications here bother me; I spend a lot of time adapting recipes and sharing them - and my understanding is that this is OK. I suppose if the conversation had gone more along the lines of a request, e.g.: 'Cook's Country brand relies on the subscriptions and depends on the recipes as our only marketable asset and we ask that you please remove the reference to the mag,' none of this would have happened. (If it isn't listed as the "Cook's Country Potato Salad" it's just any old salad and they shouldn't lose customers who would search for it by name)

Of course, I don't think anyone should boycott CC, and will continue my one-off purchases, as I think they're a good business - but they did touch a nerve, and I'm just surprised they haven't responded in some way.

I also wanted to add (in an edit, forgive me if you read this post and missed this) that I find it doubly interesting that, although this link has traveled across the internet like wildfire, nobody has gone back and asked Cooks Country about it, although the email address for the publisher in question is right on their site...

The moral of the story here seems to be don't bother attributing a source when you modify and publish a recipe. Since it appears you're under no legal obigation to do so, it only alerts the original source to unjustifiably hassel you.

I find the nuttiest part of this story to be that Alosha was contacted by a PR person, not a lawyer (is this because PR people charge a cheaper hourly rate?). I'm not sure I would have backed down under such "pressure." I'm not necessarily saying that I would have escalated things but if I knew for sure that what I posted was within my legal rights, I might have pushed it a bit just to see what happened next.

=R=

Had I received a cease and desist order from a PR person, I would have taken it upon myself to psychologically torture that person to the point that he/she wished he/she had never written me in the first place.

ronnie_suburban wrote:The moral of the story here seems to be don't bother attributing a source when you modify and publish a recipe. Since it appears you're under no legal obigation to do so, it only alerts the original source to unjustifiably hassel you.

That would make you immoral.

Among food writers, it's considered polite, good form to credit the original source of recipes you've adapted, particularly if the original recipe was in some way unique or innovative, or your changes were not substantial, even though you may have changed the language so that it isn't legally plagiarism.

Most food writers understand the rules of copyright and know that they can legally protect only their language, not their formulas. (And if you're a freelance writer without big bucks to back you up, good luck protecting even your legal rights.) They also grasp that recipes are passed on and altered by cooks who use them.

Somebody who published a cookbook consisting mainly of recipes adapted from somebody else's cookbook would be considered contemptible, but most food writers -- even Cook's Illustrated's -- start with existing recipes that they fiddle with. (I always wondered why CI writers don't attribute the recipes they start with, since they often mention that "another recipe did thus-and-so.")

Cook's Illustrated is largely on its own in its stance, and I'm wondering how official it is. I, too, am surprised that the request came from a publicist. The last time I had to ask a blogger to take down a piece of my work (she had "excerpted" about three quarters of a short story of mine), she told me it had been "OK'd" by the publisher's publicity department!

LAZ wrote:

ronnie_suburban wrote:The moral of the story here seems to be don't bother attributing a source when you modify and publish a recipe. Since it appears you're under no legal obigation to do so, it only alerts the original source to unjustifiably hassel you.

That would make you immoral.

Nope. Possibly unethical but definitely not immoral.

Of course, I can't imagine adapting and publishing a recipe in any event, so for me it's all moot, anyway.

=R=

ronnie_suburban wrote:Nope. Possibly unethical but definitely not immoral.

Well, if you want to debate semantics, then we can get into whether claiming someone else's recipe as your own is plagiarism and whether plagiarism is theft and whether theft is immoral....

ronnie_suburban wrote:Of course, I can't imagine adapting and publishing a recipe in any event, so for me it's all moot, anyway.

Do you mean you'd never put a recipe online, or that you'd never post a recipe that you adapted from somebody else's recipe?

Hi,

I am a believer in attribution. I know there are many people here who feel slighted when their image or idea is used without attribution. It is an accepted industry norm to adapt a recipe and provide attribution to the originator. I see no reason to change my behavior, nor should this board, based on some over enthusiastic PR person who didn't know what they were doing or setting off.

Cook's Illustrated is on its second life. I have almost every copy, including those when it was a magazine with advertising. Chris Kimball was the editor when it first launched, he was no longer on the masthead when CI V1 shuttered. About a year later, CI V2 rose from the ashes with their streamlined format and no-advertising, apparently living off their subscription fees. While V1 had lots of color glossy pages and chef interviews. V2 is a much meatier magazine with lots of food science related comments I learn quite a bit from. I'm pleased they have succeeded and expanded via their television, internet and publications. I can understand the currency and braintrust they feel over their recipes, however they have no legal standing to suggest anyone to take down an attributed and adapted recipe.

While I buy Saveur, Gourmet and Bon Appetit subscriptions at deep discounts. Cook's Illustrated does not deeply discount their magazine, you are purchasing your subscription directly from them. If CI lived and died by reader count, then they would also deeply discount their magazine because advertising fees would make up the difference. CI has developed several revenue streams, though they still very much rely on our subscription fees for their bottom line. That CI has been able to derive an income from the website is a feat many have not pulled off and wished they could. I don't subscribe to Cook's Country because I don't like the physical size nor am I the target audience, which is subscribers of Taste of Home, whose readership dwarfs the combined readership of Cook's Illustated, Saveur, Bon Appetit and Gourmet.

I will continue to support Cook's Illustrated with my subscription fees because I value their information. I understand why they want to protect their recipes, though they have no foot to stand on. The best way to keep it to themselves is not to tell nobody and that defeats their purpose. Grin and bear it is all they can do and carry on.

Regards,

LAZ wrote:

ronnie_suburban wrote:Nope. Possibly unethical but definitely not immoral.

Well, if you want to debate semantics, then we can get into whether claiming someone else's recipe as your own is plagiarism and whether plagiarism is theft and whether theft is immoral....

Ok, ok . . . I was just splitting hairs.

LAZ wrote:

ronnie_suburban wrote:Of course, I can't imagine adapting and publishing a recipe in any event, so for me it's all moot, anyway.

Do you mean you'd never put a recipe online, or that you'd never post a recipe that you adapted from somebody else's recipe?

Well, both, actually. I can only remember having posted recipes on-line a handful of times and even then, they have been personal recipes or those from friends, in which case I always provide attribution. But by the same token, I realize that when I put one of my personal recipes out there on the internet, it's likely to make its way to wherever, without attribution. I can accept that. If I couldn't, I wouldn't bother posting it.

If I wanted to pass along someone else's published recipe, I'd be more likely to provide a link to it (if available), send it privately or, simply mention that I thought it was a solid recipe and worth checking out (and possibly modifying).

=R=

I confess, I do like America's Test Kitchen a lot for reasons that some of you have stated here. Sure, they annoy me sometimes (sometimes the obsessiveness seems silly) but it's a small price to pay for enjoying them most of the time. What I think is a little strange (although I'm new to the blog world. I only really follow one or two sites. I found out about this one because my brother lives in Oak Park) is how many people seem (not here, but at the other place) to be enjoying tearing into the company and its PR rep (the language on that blog from posters is kind of shocking, and I'm not a prude). That just doesn't seem right to me. Also posting someone's email (if it is the actual email) seems like it could be illegal. Or maybe it isn't, but it certain seems unethical.
At the very least it seems like it might have been a good idea for this blogger to check with ATK to see if she could
use the recipe -- modified or not. Maybe they would have just said to use the recipe but keep their name off (or to credit it in another way. The PR person did say to just ask for permission. I do have sympathy for the two women (the blogger and the PR rep ) because it's obvious that the PR person has been thrown to the wolves by the posters on that site (and with such vile words), but also because the blogger must be hurting too (and I'm sorry, but I think she -- the blogger -- was very rude to the PR lady in that email exchange, and not the other way around). I guess the good thing for that blogger is that she got a lot of traffic on her site. I do wish them all well.

WendyW wrote:At the very least it seems like it might have been a good idea for this blogger to check with ATK to see if she could use the recipe -- modified or not. Maybe they would have just said to use the recipe but keep their name off (or to credit it in another way. The PR person did say to just ask for permission.

I suspect if you asked, then you will be declined to print their recipe verbatim. They will likely not advise the industry norms of what is and is not copyrighted, adaptation and attribution. You will then feel uncomfortable to pursue this further, though you would not be crossing the line if you properly adapted and attributed.

As Ron and others pointed out, you can simply link to the recipe, point where you found it and comment how you would amend it.

As for how people conducted themselves, I think it would be far different if the recipient was looking them in the eye. There is a weird freedom of expression people take when behind a keyboard.

Regards,

Thanks for your response, Cathy2. I'm actually doing a thesis (part of a graduate degree) on websites. The thesis is not about blogs per se, but I've started to research blogs -- relating to many subjects -- over the last month or so too. Of course I plan on asking permission before I include anyone -- website owners or bloggers. I would have anyway, but after all of this I will for sure. I hadn't gotten to food blogs yet until very recently (prompted by this brouhaha). Most of the food blogs I've checked out have been pleasant, fun and friendly (the posters, I mean). But the other food blog (mentioned in this thread) is a little too scary
for someone like me to post on (I think the other posters would take out a hit on me if any said anything in support of the company in question. And I'm only half-kidding!). Too bad too, because that blogger had some good posts before the one in question (I do like her photos in particular. And I like her personal blog).
Just for the record, arts blogs, and travel blogs (no surprise there) can also get pretty testy but nothing like what I read. Have a good week!

Cathy2 wrote:I am a believer in attribution. I know there are many people here who feel slighted when their image or idea is used without attribution.

There is a big difference between stealing a copyrighted image and posting it without permission or even attribution and modifying the cooking instructions of a copyrighted recipe and posting it (with or without attribution). One is against the law and the other isn't.