I’ve found some peace with the show Fairly Legal, about a woman they call a mediator who does nothing that even vaguely resembles mediation. The way I’ve done it (because I still like the characters and the legal issues) is that I just keep telling myself she’s something new – a unique entity in the law.
In my mind, I call her a Conciliator. The weird part is, I think there’s room in the legal system for someone like this. It would be sort of a mediator, sort of an arbitrator, and sort of an investigator. There’s nothing like this now, and I suspect that this show might spark such an entity into being. She’s closest to an arbitrator, because arbitrators can investigate to some extent and in a very limited way. So I’m not writing to complain about how they went right off a cliff on the whole mediator concept.
Instead, I’m writing about a recent show involving a barbecue sauce recipe. The conciliator (I absolutely refuse to call her a mediator) made this statement: “You can’t copyright a recipe.” I shook my head, first because if she were a mediator she couldn’t give legal advice (okay, I’m going to complain a little), but second because she was wrong.
It’s true that you can’t copyright a list of ingredients. But you can absolutely copyright anything you personalize – the instructions, illustrations, photographs, comments, explanations – can absolutely be copyrighted. Basically, anything that is literary expression is subject to copyright. Also, a collection of recipes can be copyrighted. The only problem is, if you have a secret ingredient, applying for a copyright will necessarily require you to disclose the secret. So you might not want to apply for a copyright if you have a secret you want to protect.
There are other legal protections for recipes that might be even better than a copyright. Coca Cola and the KFC secret recipe are trade secrets. Nobody is allowed to tell the ingredients, processes or methods to a trade secret. So if you use your secret recipe in your bakery or restaurant, you can protect your recipe from disclosure. Make sure your employees sign an agreement recognizing they can’t disclose trade secrets, and make sure you zip your lips. If you give the recipe to the Girl Scouts for their fundraising recipe book, your trade secret is gone.
The other possibility is a patent. The recipe has to include something that’s not obvious, so most recipes won’t qualify. Once it’s been disclosed, you only have one year to apply, so if you baked your secret pie for the PTA, your clock is ticking. Mostly, patents won’t be available for recipes. Patents that have been successful usually involve things like ingredients or processes to make food lower calorie, have a longer shelf life, keep a better shape or texture, or work in new devices (microwaves, convection ovens, or whatever the latest technology is).
How many chefs watched that show and remember the phrase, “You can’t copyright a recipe?” How many won’t bother suing when someone copies their beautifully written directions and processes as a result of bad TV legal advice? If someone uses your recipe in their cookbook, contact a lawyer who knows about intellectual property.
If the writers would just buy a copy of The Writer's Guide to the Courtroom: Let's Quill All the Lawyers, they'd have a shot at getting this stuff right. :)
Never, ever get your legal advice from watching a TV show. Or reading a blog for that matter.