Voice: Basic Copyright: Understanding Your Rights and the Rights of Others
Moderator, Julie Ross Godar, BlogHer Executive Editor
Christine Pittman of Cook The Story and Food Blog Best Practices
Elise Bauer of Simply Recipes and Food Blog Alliance
Liza Barry-Kessler of Liza Was Here
Scroll to the bottom of the post for a list of resource links mentioned in the panel.
Julie: What is and isn't copyrightable?
Liza: Read document from U.S copyright office, circular #1 -- what works are protected: original works of authorship, fixed in tangible form of expression...copyrightable works include literary, musical work and words, dramatic, pantomimes, pictorial, sculture, motion pics, sound recordings, architect works. You may not have heard recipes in there, because according to the U.S. copyright office, copyright law does not protect recipes that are mere listings of ingredients, but it may cover substantial literary expression. For you to be covered, express yourself in terms of substantial literary expression.
Julie: What are best practices to create a recipe based on another? Do you do it?
Christine: Lists of ingredients are not copyrighted. You can use them, but need to change 2-3 ingredients. More importantly, change the headnote and also the instructions. Then I feel you still attribute the recipe to the source and properly link to them.
Elise: When I started, all i did was adapt recipes unless they were from my parents, because I did not know how to cook! I only made recipes from friends and over the years, I learned to be careful. Now if I use a recipe from anyone, I rewrite in my own words, and try to get permission if I know the author. You don't have to, but it's good to, especially if it's someone I know or in our communtity and they are accessible. To be a better cook, I now actually do adapt, try to say where insipire from when can. IACP lays out basic guidelines for what you should do and those are different than what you NEED to do to be legal. Credit sources when you can and be respectful.
Liza: Well I don't write recipes...but there's something under copyright law called fair use. It's not always clear so you have to ask permission.
The definition of fair use is not clear! The distinction may be unclear and not easily defined - meaning no specific number of words, lines or notes. The safest course is always to get permission to use copyrighted material, but it is not required. A general principle - don't take the whole of someone's work and use it as your own. Fair use is "I found this great recipe on simplyrecipes and here it is (link)" adding your words that it's amazing or adding a sentence or two that it sounds great.
Elise: About the method of writing your recipe, it's a gray area. Ingredients are not protected. However, method can be protected IF the writing is "substantial literary expression." If it's just basic instructions, and not literary expression - but just method, you dont have to get permission. But you should make it yours and acknowledge the sources.
Julie: And attribution is not permission!
Christine: It's important to think about the words you choose when adapting - adaptation and inspiration are different. Inspiration is "I tasted this or saw this or heard these flavor combos and created this" where adapted means I saw this recipe and have changed it. "Courtesy of" means ripped off without permission - unless it comes from a PR person.
Julie: What do you do when writing a recipe to make it copyrightable?
Liza: Infuse it with substantial literary expression, so it's not confused with others. Finding your own voice is the key to being copyrightable.
Elise: I put things like "my mother's favorite trick to this is x" or add personal things like "my mom did this." When I've been copied, I email them and tell them it's very disconcerting and please don't do it! The other thing important to note is that you do not have to have copyright notice posted to be protected.
Liza: Content is auto protected the minute you write it! Pictures are copyrighted. When you post a photo, you infuse substantial literary expression.
Julie: When can you use another person's photo?
Christine: I never have. And I have a policy on my blog stating that you have to ask my permission to use mine.
Elise: I take almost all own photos. If they are not my own, they are from guest writers or friends and I have a signed contract from them and rights to use. I think of my photos as advertising. If you take one of my photos and use a link to my site where it was first used, I'm happy with it; they are advertising for me. However, professional food photographers don't want their photos showing up elsewhere.
Liza: Ask permission or look for something that is okay to use, such as Flickr or one with Creative Commons license, or a stock photo website. There is a great free legal advice resource for you: The Center for New Media Rights newmediarights.org On Twitter they are @newmediarights. They provide individual consultations for bloggers, video content producers, etc. They will work with you if you've had content taken from you, and let you know how to protect your work. They provide representation at no cost.
Question: As a cookbook editor, are there things we should be looking for? For example, publishing houses want consistency, and might be taking out something personal or specific that's important.
Liza: A book is copyrightable another way, as an intellectual work.
Christine: How can you be sure writers aren't taking your recipes?
Elise: It's tricky especially in print. Amazon should be able to catch copied text with various services. There's no reason online ebook publishers can't screen various works, but it's harder on print side to do that search especially if it's a smaller publisher.
Liza: Trust your gut. If it looks suspicious, it might be. Elise tests random chunks of her text online. It's very labor intensive to do for a whole book but if I found an example twice, the author could be full of it.
Elise: To catch these people, I take a snippet of my method/instruction and run it through a google search to see who has copied my exact words.
Liza (S3) tried it and found five sites that took one of my recipes.
Question: Can you use photos that friends give you for your blog?
Elise: I attribute who took the photo on my site, but there's no need to sign anything. If they didn't want to give permission, they wouldn't have given you the photo, right? It's a business decision for me. If someone is not my friend, I would probably use the photo and if they flipped out later I would just take it down. The thing about copyright is, if I take your photo and put on my site, that's not stealing - but I'm infringing. If there's no permission, there's still no problem until I find the photo and tell you there's a problem.
Liza: That's a fair description! If you are concerned, get a contract and have it signed.
Question: There's a definition of Creative Commons, Flickr and attribution, but if you sell things on your site or use photos to enhance your site (which is monetized), how far can you go?
Liza: That's an excellent question. If they say "not for commercial use" then you can't use! If you are monetizeing your site, or if any money is passing through your site, don't use creative commons license photos. You could use "for attributions license" photos, which is a smaller subset, but they do exist.
Question: How do you find out if you've been infringed besides good search efforts?
Elise: On twitter or people email me and tell me. Readers notice and tell me. The other thing is if I find someone who took something of mine, they often have taken others' stuff too so I scroll through to see if I recognize others; works. I tell those people that I'm ticked off and I start searching for who else they are ripping off and tell them about it. I'm proactive about it and the more we watch each others back the better. Google alerts help, and I have one set for mentions of my name and one for Simply Recipes.
Julie: Do you have policies for copyright on your blog?
Christine: I have a pin, pic and recipe" policy. For the recipe it says you have to change the headnote and instructions, and I would like attribution.
Elise: Yes in the "about" section, covers use of recipes.
Question: What do you do when you find problems?
Elise: Infringement is usually by a new blogger/family blogger, like they find a good thing and take it all OR someone at community site (epicurious tasteofhome). If it's a blogger that I can tell they just don't know that they shouldn't be doing it, I leave a comment on post and thank them for liking it so much that they are writing about. I also ask them to write the recipe in their own words, and provide a link to the source recipe, use their own photos, and thank them for their consideration. Usually I get an email back with apology. The hard ones are when they've taken 40 recipes and trying to make money from Google/etc and no original work. I don't bother to contact them, but I go to web host and file a DMCA notice and ask for it to be taken down, showing the original source and link. Web hosts have 48 hrs to take down, and they usually do. If it's GoDaddy, the minute they get it, they turn the site off until the person resolves it. Others have to work at or want additional documentation. On foodblogalliance.com, search on copyright and you will find a post I wrote about how to deal with copyright theft, shows exact wording to use, how find out webhost, who complain to, gives links for help, how to write letter.
Question: Reviewing a cookbook, using recipe from book, I do not want to rewrite so how to attribute?
Liza: Not easy to define.
Elise: Cooks Illustrated got upset because people take recipes and adapt and write about them - but in their view, they've tested it a hundred time and do not want changes made to it. But hell yes we are going to change and adapt and can't stop us.
Elise: There's no perfect recipe, it's all about grow, change, adapt. I say acknowledge the source and write it your own words. If you want exact words, contact publisher for reprinting permission, usually say yes.
Christine: Some don't want their work adapted for whatever reason.
Question: I'm using YouTube videos using royalty free music. If starting out a new blog, does advertising count as monetizing, so I can't use the music now?
Liza: Advertising is monetizing your blog, take it out.
Liza: Reach out and tell music company what you are doing and ask if you can continue to use; they might say yes.
Liza: I suggest you contact newmediacoalition and ask about your situation to avoid legal trouble.
Elise: I get emails all the time for permission, and I grant some and not others. Original works are protected by default, so if someone infringes, you ask them for damages - what can you go after? If you have not registered your work with copyright office, you only can file for damages incurred (hard to determine). If you >
register with copyright office, then can sue up to $100k for each instance.
Christine: It's not really a legal issue but an ethical issue. Legal solutions aren't most likely going to make you happy.
Elise: I am constantly infringed upon and have never sued. It's not worth the headache, or they don't have any money, etc.
Julie: How much time would you spend pursuing this?
Christine: I spend 5 min/week looking through Google search.
Elise: It's incredibly emotionally draining to deal with. I spend probably a couple hours per week, filing complaints if necessary. It's overwhelming to find a site like I did in Vietnam that copied more than 300 recipes of mine. I can't do anything, sent letter to webhost, but there's a language issue. I would spend days in the past looking and taking notes, but it's hard to document them all and show proof of each, it's exhausting. NOW when I see instances, I bookmark them in folder "people stealing my content," and deal with it all at once another time.
There's only so much energy, and if you put too much into it, you will get really depressed and not want to cook ever, and be angry and depressed.
Liza: Sometimes we think the solution is to get all the bad guys. But if you look at industries excluded (in copyright law) like tattoos or fashion or food, they are thriving now. But those covered - movie, music - with the most restrictions are not thriving and expanding like we (food) are.
On the whole, the solution might be worse than the problem. There is not a clear solution.
Elise: There is a balance, make an effort when it's huge.
Question/Comment: David from Leit'ses Culinaria added that Copyscape (www.copyscape.com)is a free service that you can give URLs and it will search the web for you, based on how many words from each recipe have been taken. Also, Tynt Publishing Tool allows you to decide how many words you want to search for, and when someone copies and uses it, you can put message on bottom that they will see.
Question: We are creating a website about pie, all classic recipes, how do you write about apple pie and not copy one of the tons of recipes out there?
Elise: Write it in own words, then you are okay.
Liza: Infuse it with your own stories, gives substantial literary expression. Tell what's great about it and why you love it; that's different enough.
Question: If you have 3 cookbooks previously published and want to redo them for new life, reshoot every pic, republish every recipe, will it be a problem?
Liza: Probably, publisher will not want you to do, call newmedia peple. Probably have to show your contract with Harper Collins (in this case)
Elise: Good warning for potential cookbook authors, all open for negotiation, digital vs print rights, be sure you address that, think it through.
Question: If you get permission from an author of a recipe, is there any format it needs to be in for legal purposes?
Liza: Get written in email, not Twitter (too short) but it's not a requirement. It will cover you better.
Elise: Someone claimed I gave them permission and said I did on Twitter; I vaguely remembered request for recipe in mag, but no record anywhere. Point is, get email so can document it.
Liza: It's easy to be ambiguous in 140 characters. [Also, David from Leite's Culinaria added that for recipes from cookbooks usually need permission from publisher not just author.]
Question: A lot of bloggers make living posting recipes from other blogs, etc and see nothing wrong with it AND get lots of traffic, make money. A blog is just an online journal and sharing recipes with friends - respond?
Elise: Nothing is wrong if copy from people who don't care that you copied from them. Only problem is when you copy from those that care you did that - then there's a problem.
Liza: The issue is that it's fuzzy, not clearly wrong but not clearly right
Elise: Tanya Steele wrote an epicurious article that it's okay for people to copy and put on their blogs, because it gets the info out in the world and they're okay with it. How Conde Nast feels, we don't know?
Christine: That's getting credit for what is not originally yours, and getting good comments on your blog but didn't earn them, taking credit you don't earn.
Elise: It's never really successful if that's your approach, in my opinion. In my own work, the more original recipes are the ones that shine. Adaptations don't get as much traffic, people want to see original work - that's how you make your name in this business.
The Center for New Media Rights
File a copyright online
Christine's online policies
Elise's online policies
Attribution for Our Very Thoughts: Necessary or Overkill? on Food Blog Best Practices
How to Deal With Copyright Theft by Elise on Food Blog Alliance
What to Do If Your Content Is Lifted by David Lebovitz on Food Blog Alliance
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