Liveblog Recipe Writing: Copyright, Credit and Etiquette

Liveblog

The information provided by the panelists and session attendees is provided as a resource for general information for the public. The information on this post is not intended to serve as legal advice. You should not rely on this post without first consulting a qualified attorney.

Welcome to the BlogHer Food '11 liveblog of the Recipe Writing: Copyright, Credit and Etiquette panel with Dianne Jacob, David Leite and Liza Barry-Kessler.
Liza welcomes everyone to the values track where we're going to be talking about recipes and copyright.

Liza - How many have been doing this for 5+ years? More than two years? Less than one year? Ok, it's a serious mix we'll try to speak to a wide range of the expertise in the room.

Dianne - How many develop original recipes? how many adapt?

David - Can someone give us an idea of what they think adapting a recipe means?

Jill from Ready, Prep, Go! - Unless it's something that's a general recipe I'll always source. The ingredients will always be in a list and the instructions will always be my words.

David - Why do you write it that way?

Jill - Because I am writing for people who are not cooks and are beginners.

Maria Rivera-Trudeau - I am gluten-free so I adapt gluten-y recipes and play around with flours until I get a product that is acceptable.

Dianne - What is inspired by vs adapted?

Audience - Inspired by is when you see an oatmeal cookie or someone talking about it and then you go make it but it's a totally different recipe.

Audience - I see a combination of flavours that inspired me but then I make up my own recipe.

Tracy Stuckrath - Don't you have to change 5 things about a recipe to make it "adapted"?

Dianne - When I wrote for Sunset they said to change three things and then it's a new recipe. None of us up here agree with that.

Liza - The law isn't as clear as the publishers would like us to believe. They've tried to make guidelines but the law really isn't there yet.

Dianne - I think "inspired by" has less to do with the recipe than the idea of it. Maybe you go to a restaurant and have cream of broccoli soup and then you go home and try to make it. You think about how to make it so creamy, etc.

David - What is a personal vs legal definition? I have cookies that someone bought at an artisan store and they are chocolatey and spicy and have pomegranate syrup in them. I have no idea how they are made. So I'm going to take the idea of it and make it chocolatey and spicy but without pomegranate syrup, (because who has that at home) -- maybe use raspberry puree.

David talking about David Lebovitz using his milk mayonnaise recipe -- he took what I created, credited me but he made something totally different out of it.

Garrett McCord (Vanilla Garlic) - For a recipe, legally, you cannot copyright a list of ingredients, but you can copyright the procedure, right?

David - You can copyright the procedure but only the expression of the instructions. You can't copyright "add flour" or "stir sugar." If you have my recipe and you thwack the pans and plonk the potatoes? I'm coming after you because that's my language you are using.

Audience - I always talk about the original recipe and link back to them and reach out in advance.

David Lebovitz - I didn't use the name of my post as milk mayonnaise. I looked at google and David should have come up number one or number two. Adapt vs inspire... I feel like people are trying to get around the law. We need to stop trying to "get away" with things.

Liza - I'd like to talk about the difference between law and best practices. The law is frankly terrible for people who are creative producers. There are two areas of law that have been in a black hole -- recipes and clothing design, which are primarily women's creative work. It's an interesting and somewhat troubling fact of the law.

Creative expression around "basic" instructions -- in that area, what we need to start looking to is best practices as a community. Research on food communities has created some interesting results.

2006 MIT study of Michelin starred French chefs[PDF] -- they had some strong normative practices. If someone stole your work, the community knew about it and defended you. They were successful in enforcing protection of most people's creative work.

I would encourage bloggers to consider what you feel are best practices and how to communicate that within the community.

Dianne - one of the most read posts on my blog Will Write for Food is about a woman who wrote a cookbook and she included a recipe of her grandmother's Bohemian wedding cake. It was just different enough to not be copied but she emailed me because a blogger had written about her cake. She used the name of cake. She changed three ingredients. She wrote her own method and headnote. What concerned the cookbook author is that it was presented as the blogger's own cake and people loved it. The readers perceived it as the blogger's own recipe even though she linked to the author's cookbook on Amazon.

How do you pull it back so that it works for everybody?

David - Rewriting the method? Rewriting is not adapting. Rewriting is only rewriting. I don't think that would constitute an adaptation. That's like rewriting Gone With the Wind in your own language.

Adapting a recipe is redoing it to your own personal considerations. You need to do your own take on the whole recipe, not the instructions.

Is there not an ethical meter inside us asking if it's right do that? I get explicit permission from the writers and publishers of cookbooks, explicit permissions, and we still make changes to them. We add our own notes. But we still cite, reference and get permission to use it.

Are bloggers that lazy that they can't think of anything original to do? That's not food blogging, that's just re-purposing someone else's work.

Jill - I recently was asked teach a class on how to make tamales and empanadas. I've never cooked them before. I have to put the recipes up online. I adapted something and talked about how the recipes worked and I sourced the restaurant and the cookbook. My ethical meter didn't bing at all. Do I have a bad ethical compass? Did I cross a line?

David - What we do is we'd look at 6-8 recipes or more. I'll look at the commonalities between recipes and come to understand what is traditionally done. I'll aggregate what I have learned and explain what I'm doing. I will have added to the canon of knowledge because of the testing. Rewriting a recipe is not adding to the canon of knowledge, you're just regurgitating someone else's work.

Why not take time to add to the canon of knowledge?

Liza - Could the source of the recipe sue you for misuse of copyright? Probably not.

Jill - I'm talking about ethical, not legal. I sort of see myself as doing a service by introducing someone to say, Rick Bayless.

David - Why can't you call his agent and ask permission?

Jill - Because I feel like I'm introducing someone to it, I don't have any ethical qualms of what I'm doing.

David - Because you won't feel that way until your book is out. More than 20% of my book is being used on the internet illegally.

Liza - Instead of reproducing everything, why not link to Rick Bayless' internet site.

David - There are some people who will write a whole post about a recipe and then link out. It can take years to build a reputation, it takes two tweets to lose it.

Audience - what if I adapt one of my own recipes? Are there any copyright issues with that?

Liza - Who owns the copyright? Did you sell it?

David - Bon Appetit doesn't own my copyright on the recipes I did for them. We jointly own them.

Liza - It's important to read your contracts carefully. A lot of them say you are giving the work entirely to those people. It's important to know what you've sold and what you retrain the rights to.

Dianne - A friend of mine had to ask permission of her publisher to reproduce her own recipe and had to pay her publisher to do it.

Nancy Baggatt - I have a friend who says if you can't steal from your own self who can you steal from? I look at old recipes and if it's more than a year old I think would never do it that way. It's easy to adapt and change and grow your own recipes. It's really discouraging when you develop your own recipes to have to compete against people who are putting out stuff every day.

Dianne - It's not whether to adapt, we have to. But it's how to adapt. Example -- I think it would have been nicer if that woman hadn't called it "bohemian wedding cake." But she did and linked to the author and name the book. The author couldn't really complain to a point because she was cited.

David - How many people in this room have had recipes stolen? [1/3 of the room did.] Does it hurt? [Yes.]

My book cost me $75,000 of my own money and 10 years of research. Then people use it without permission. It hurts me financially and it will hurt you as well.

Liza - Blog with Integrity -- people are having that conversation. The pledge doesn't quite fit with this community but it'a a good place to start. How should you adapt it for this community?

Audience - The bohemian wedding cake -- if that were me and you changed the name and a few ingredients and not cited me? Then my feelings would be hurt. I don't really get why the cookbook author was so offended.

Dianne - It's about promoting someone's work they are enjoying. Isn't that why you are putting the recipe on your blog in the first place? You want to share it with other people. I don't think there is anything wrong with that but how do you do that while respecting the authors.

David the question is does something like that - is it a pass-over to the author? Or maybe you already have the recipe? You want to respect, honor and tip your hat to that original author. You are just the messenger. You need to honor that position.

Audience - If that was my grandmother's recipe... I'd rather she keep the title and credited me. If she changed the name of it and stuck close to the cake -- I'd be more hurt. David, when would say no to someone who asked to use your recipe?

DL - I'd never say no but I have requirements -- you must link to the website, the book, give me credit, rewrite the language and write about your experience with that recipe. That's what you need to do.

Audience - That sounds like a good guideline for our community.

David -- Someone has on their blog "mama leite's baked beans" -- they don't mention me or my mama. But it's my recipe.

Tory Ritchie - Among my close community in the Bay Area, we give permission to each other. And I do see spikes in sales when I'm mentioned on blogs. My particular publisher (Chronicle) says media can use up to 3 recipes from a book with full attribution (they could reproduce a recipe verbatim without permission). Is that changing?

David - Yes it is. We request recipes, we usually request more than three recipe because maybe two will make it from a book. Publishers are saying we can use this recipe but not that one.

Bloggers are important to the media world. How many people give copyright credit for recipes? [Not a lot of hands.] How many people photo credit? [Most people raise their hands.] Right, you give photos credit. Why not for recipes?

Tori - I've always been told you should always do "adapted" from.

L - Adapted from might be a better option.

Tori you do see spikes in sales. That's 100% in line with the research from the French chefs. Information sharing is tangibly of value. How to we do that appropriately within that community?

Alison Lewis - Just put a cookbook out and I appreciate bloggers want to write about my book. But my publisher needs the blogger to get permission. We'll let them use recipes and photos but my publisher needs permission requests.

David - Within a few months and you'll see your recipes out there without permission. People aren't working with you to promote your book, they just think they are.

I don't see sales spikes. The average number of recipes people cook from a book is 3. There are 40-50 of my recipes from my book are online.

Audience - I'll see recipes online and it looks very familiar with me and then I'll realize they were in my column in the NYT in the 1990s. It's magical the way they change and once we come out with it it's sort of public domain.

Once you put a recipe out there if someone dignifies you with actually acknowledging it, your reply should be thanks a bunch.

David- We knew we wouldn't be able to solve this but we wanted to start the conversion.

Danica - Cookbooks have copyright notices. Can recipes really be copyrighted?

Liza - Books vs recipes are really different. Books are collections of recipes -- that collection is copyrighted. A recipe on its own is different. What bloggers do is somewhere in the middle. What is beneficial to you is putting as much of your voice in it as possible.

Michael Procopio - When I write a recipe I write it so that it's so intertwined with my post and it's so intertwined that it doesn't make sense to put that recipe verbatim anywhere without my story. It doesn't work when people lift it. The tone sticks out like a sore thumb.

David - That doesn't mean that people can't take the Michael-isms out and put on their blog. I had a 6000 word essay lifted, put on their blog and with their name.

Liza - A lot of areas where copyright law is very strong are actually suffering economically. The weaker areas, like recipes and clothes designs, are thriving. The goal of perfect copyright protection may not the right goal at all. It's something to think about.

Garrett - The food blog code of ethics -- it's a good read. The general code is don't be an ass, we're a community and you need to respect each other.

DJ- I think people who create recipes for a living and create lots of recipes have trouble with blogging being about adapting work and not developing your own work.

Audience - What attracted me to food blogging is that it wasn't professional food writers, it was about adapting and about how those recipes impact their lives.

Dianne - I interviewed someone from Bon Appetit said that they'd never hire a food blogger because they don't create recipes, they just adapt. That was her perception of food blogging from a print media perspective.

Nancy - Sometimes people say there are no original recipes. That's total nonsense. It's not the point that there are other recipes like it -- if you created it on your own and wrote it up it's not going to 100% like another recipe. It's yours. It's original. Saying there are no original recipes is a cop-out. If you look at old cookbooks and what we have today -- they aren't the same. People were creating new content.

Tori - What about creative commons?

Liza - It's a particular kind of copyright. It's in pretty widespread use. It hasn't been really tested (legally-speaking) but I recommend people check it out. I use it and I recommend other people have it.

David - Terms of use = important. Ours is really long but it's important.

Liza - If you do decide to ask permission go to the ORIGINAL source.

Audience - I was doing a recipe search to make a cake. What if I attributed it to someone and THEY had borrowed it from someone who didn't credit you?

DL - I know a blogger who spends half her day tracking down cease and desist recipes because she makes all of her own recipes and all of her income from her blog.

Audience - I do a print media. I send out two different cease and desists letters. I have a nice one and then I have one that has claws. I think we can help [recipe lifting] to not keep growing is to keep out sending cease and desist orders

David - You can... but at some point you become a lawyer and not a food writer.

Asking for permission is classy. In the end how classy are you going to be? Be kind, go the extra mile with someone.

Dianne - Originality. I didn't go to culinary school and most food bloggers have not. The old school way of developing recipes is studied there but when I develop a recipe I look at other recipes. I don't don't feel like I need to go to culinary school.

Audience - when someone has a copyright label at the bottom of their blog what does that cover?

Liza- It would most cover the methods and instructions in that they are a voice. It doesn't cover 4 cups of sugar.

David - You [food bloggers] are some of the most powerful people in media right now. The first time a blogger posted a recipe from my site I flew into a fury. I wanted to bring out the lawyers I was told very quietly by my publisher -- don't annoy the bloggers they are too important. But don't abuse your power. You can use it for good or you can use for evil. You can be seen as great, or you can be seen as skanks.


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