Thursday, April 21, 2016

Copyright Law In Cleveland's Kitchens: Sixth Circuit Says Recipe Book Not Copyrightable

In Tomaydo-Tomahhdo, LLC v. Vozary, --- Fed.Appx. --- (6th Cir. October 20, 2015), the United States Court of Appeals for the Sixth Circuit considered the claims of a Cleveland restaurant Tomaydo-Tomahhdo owner suing a former co-owner whom she claimed copied her recipe book in launching a new catering business, Caterology.  As part of a buyout, the former owner had been required to return all menu-related materials.

Copyright law covers only original works of authorship.  It does not cover recipes.  It does not cover lists of ingredients.  It does not cover instructions, because "functional directions" are not copyrightable.

However recipe books can show originality and obtain copyright protection "if the authors lace their directions for producing dishes with musings about the spiritual nature of cooking or reminiscences they associate with the wafting odors of certain dishes in various stages of preparation." (citation omitted).

The Sixth Circuit doesn't say much in its opinion about the materials that it was looking at and it states that the plaintiff didn't point out anything creative or original in the materials.

The case law is littered with plaintiffs seeking to use copyright law to obtain relief that should have been obtained through contract or relief that - if warranted- might be more appropriate under the law of unfair competition.

My book Copyright Litigation Handbook (Thomson Reuters 2015-2016) discusses the difference between contracts involving copyrighted materials and questions arising under the Copyright Act.
Anyone looking to break up a business should think about the copyright consequences and consult this important video before consulting a lawyer:
 Copyright law, fine art and navigating the courts. Attorney and AuthorCopyright Litigation Handbook (Thomson Reuters Westlaw 2015-2016) by Raymond J. Dowd
 Copyright Litigation Handbook on Westlaw

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