Recipe Copyrights?

I was thinking the other day about the legality of using a similar recipe (clone recipe) as your own. Do breweries copyright their recipes?

With a fairly structured style guideline for each beer, wouldn't it be possible for a brewer to stumble upon a already created recipe by chance? I would think that with the amount of new craft breweries opening that there has to be some overlapping beers taste/style wise. What would stop a brewer from taking a well established recipe (we'll use Sierra Nevada Pale Ale for argument sake) and changing a few things and calling it their own?

Obviously as homebrewers, we strive to make the best beer possible. I read a lot of threads of people wanting to brew their favorite beer. There are many clone recipes out there, but this is not technically the same recipe as the original brewer (unless the brewer releases their recipe) So what would stop me from brewing a clone recipe and releasing it under a different brand/label.

Not that I am considering doing this, I am just curious as to how this would play out.

Thanks all!

You cannot copyright a single recipe. You can copyright a collection of recipes, like a recipe book.

Recipes can't be copyrighted for the reason you gave. That's why most food and beverage makers don't release their recipes.

I don't think they can really copyright them and even if they did, the smallest variation would get anyone around it. That's why they keep some of the info so secret like specific temps.

You cannot copyright a recipe. It is considered a trade secret. That being said, breweries have nothing they can do to protect these trade secrets other than having a secrecy clause that all employees sign. This does not protect the recipes but rather allows for a brewery to sue the person who released the information. To sue though, it is required to provide proof of bad actions.

Think of a recipe as a method of producing a certain beer. Although methods are patentable under US (and international) intellectual property laws, they must meet certain criteria - e.g., novel, useful, not obvious to others having the same skills in the particular industry. Recipes, whether for food or drink, for various reasons would not meet those criteria.

Copyright applies to the written versions of recipes. A single recipe can be copyrighted under intellectual property law. If you were the first to publish a recipe you created, e.g., in a magazine, book or on this forum, you would hold the copyright to that published version. Others could not re-publish the exact same recipe without your permission. Once published however, the method described in your recipe could be practiced by anyone.

A brewery's unpublished recipes would not necessarily be considered trade secrets, unless the brewery takes certain measures to maintain the secrecy. What is sufficient is determined by trade secret laws.

Going back to the OP's questions. If a brewery were to publish a recipe, the method it describes for making that beer is now in the public domain and could be practiced by anyone.

I think the can copywrite the names thats about it. I know that ab tried to sue dfh for naming punkin ale to generally.

Lordy. So much bad info...

You don't "copywrite" names. Perhaps you're thinking of Trademarks?

Copyright does NOT apply to "written versions of recipes". Copyright involves the concept of substantial literary expression. A recipe normally does not meet this criteria.

http://www.copyright.gov/help/faq/faq-protect.html

It's like the recipe for Coke, they keep it under lock and key and only a couple executives get to see it.

I'm a formulation chemist so hopefully I know a bit about this.

Super high level but what BLuedog said above about a component or combination of components of the recipe needing to be novel or not industry common knowledge is correct. This all has to be defined very precisely in the patent and sometimes it will still allow someone to sneak around it. However, a big reason for not patenting is once you've patented a recipe component, its out in the public domain for everyone to see. And you only get protection on it for 20 years and only if you actually use it. A more common techinique, like the coke example, is to just use a trade secret. If coke would have somehow patented their recipe they would have been protected for only 20 years.

Another way to do it is to patent a unique process. DFH's continuous hopping process seems like something that could be patentable (however I'm not sure if it is). But even then it can be tricky.

Also, brewing is so much more than just recipe that most brewers don't mind sharing

ArtVandelay said:

Another way to do it is to patent a unique process. DFH's continuous hopping process seems like something that could be patentable (however I'm not sure if it is). But even then it can be tricky.

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I am not sure if they would be able to patent this process though. Part of the patent application is it must be non obvious to others in the same industry. Just because nobody, or very few, does it doesn't make it non obvious.
Just my 2 cents

ArtVandelay said:

Super high level but what BLuedog said above about a component or combination of components of the recipe needing to be novel or not industry common knowledge is correct. This all has to be defined very precisely in the patent and sometimes it will still allow someone to sneak around it.

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But that's a patent. We're talking copyrights. As you stated (and the official government link I posted confirms) patenting a recipe (even if possible) would be an enormously bad idea as it would be out in the public for everyone to see.

If Monsanto can patent soybean and corn genetic strains that they "create," I bet that beer manufacturers could conceivably genetically engineer strains of their grains, malts, yeast, etc. to where no one was allowed to use those without their permission, thus effectively patenting their beer recipe.

Thanks for all the info everyone! Let me throw this one out there, and I will use coke as an example because I have heard the crazy stories of how they protect their recipe. Feel free to substitute the word Coke with your favorite beer for relevancy.

So I could formulate a product that tastes identical to Coke/Hopslam and market it under a different name/brand? There is a possibility that by following a standard procedure (brewing) that I could come up with the recipe on my own. Could they then file an injunction for me to stop making my product even though the recipe is the same but was formulated without knowledge

I think they would only be able to come after you if you had some proprietary information. If not, they wouldn't have a case because your recipe would be your secret.

If you develop you own recipe that tastes exactly the same, they would probably send a cease and desist order. I believe they chances of them taking you to court are slim to none because they would have to prove that you have "stolen" knowledge. To prove this they would have to prove what their recipe is.

Plus MillerCoors and AB haven't sued each other over Miller Light, Coors Light, and Bud Light tasting the same.

chip82 said:

If you develop you own recipe that tastes exactly the same, they would probably send a cease and desist order. I believe they chances of them taking you to court are slim to none because they would have to prove that you have "stolen" knowledge. To prove this they would have to prove what their recipe is.

Plus MillerCoors and AB haven't sued each other over Miller Light, Coors Light, and Bud Light tasting the same.

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Taste is subjective

knelson said:

So I could formulate a product that tastes identical to Coke/Hopslam and market it under a different name/brand? There is a possibility that by following a standard procedure (brewing) that I could come up with the recipe on my own. Could they then file an injunction for me to stop making my product even though the recipe is the same but was formulated without knowledge

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Yes you could, and no they could not. I suppose they could try to take some legal action, but it probably wouldn't hold up in court.

Of course, I'm not a lawyer, this is just coming from what very little I know about intellectual property law.

I don't see why a brewery would want to clone another brewery's beer though. It seems like they would benefit more from having a unique product.

Not all beers are available nationwide. Perhaps a brewery would like to sell a new Glarus clone outside wisconsin.

That being said, it would be next to impossible to perfectly recreate the beer without knowing each and every aspect of their process, and parameters of their ingredients, including water chemistry.

Speaking of Coke, did anyone listen to this a month or so ago?

http://www.thisamericanlife.org/radio-archives/episode/427/original-recipe

Cliff notes version is that the recipe for Coke has likely been public knowledge for a long time - published in a newspaper, actually. They did a homebrew that sort of came close, then commissioned a soda manufacturer to update it using modern techniques and came up with a remarkably similar product that could probably be tweaked into an exact match.

Then they spoke with someone from Coca-Cola who - predictibly - would neither confirm nor deny. What he did say, however, is that even if someone was commercially producing a cola using their formula, they'd never sue since they'd have to disclose their formula as evidence that the other company was using it.

I practice intellectual property law, which covers patents, copyrights, trade secrets, and trademarks. BigBlueDog is correct and jkarp is not. You CAN copyright a name/logo, although trademark protection is usually preferred. Also, a written recipe IS copyrighted as soon as it's written down.

That said, holding copyright in a written recipe does not give you the power to prevent others from practicing the recipe. it just prevents others from unauthorized duplication, etc if the copyrighted material (the words printed on the page).

To the OP or whoever was wondering about a C & D or other legal trouble for cloning a brewery's beer: you have nothing to worry about if you independently clone (or even reverse engineer and clone) any beer out there, provided you are not under any contractual obligations preventing you from doing so.

You can reverse engineer, clone, and sell Coke tonight without recourse. No one does it because it's costly, Coke's brand recognition is thought the roof, and Coke has economies of scale that you'd never achieve, among other reasons.

scruffymmh said:

I practice intellectual property law, which covers patents, copyrights, trade secrets, and trademarks. BigBlueDog is correct and jkarp is not. You CAN copyright a name/logo, although trademark protection is usually preferred. Also, a written recipe IS copyrighted as soon as it's written down.

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Might be time to find a new career dude. You're clearly missing the boat on this one. Read the official government link I posted. It disputes basically every word you've written.

chip82 said:

Plus MillerCoors and AB haven't sued each other over Miller Light, Coors Light, and Bud Light tasting the same.

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You can't patent, copyright, or trademark urine.

millsware said:

Recipes can't be copyrighted for the reason you gave. That's why most food and beverage makers don't release their recipes.

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Except in the brewing community, most breweries are very open to homebrewers wanting to brew their beers, and will share the recipes freely or give you enough info. Some brewing websites even give clone recipes for their beers. Stone or Rogue puts pretty much the complete grainbills of each beer online.

Most brewers/breweries are amiable to us homebrewers, since many of them are homebrewers or ex homebrewers themselves.

I've head of very few breweries NOT being helpful, obviously mostly the macros and maybe some snobbier brewpubs or micros. But it's the exception rather than the rule.

jkarp said:

Might be time to find a new career dude. You're clearly missing the boat on this one. Read the official government link I posted. It disputes basically every word you've written.

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That page presents quick and very dirty info, and there are nuances that aren't described (but they are mentioned, so I don't know why you say it disputes basically every word I've written).

The page answers your question about an ingredient listing being copyrightable, but that is not the same as saying that a recipe can't have copyright protection, as your link points out. There is no copyright in a listing of ingredients, but if the fixation of the recipe (on paper or on a computer memory as examples) is expressive (font, color, explanation below the ingredients, etc) then that is an expression. It is not a difficult standard to meet.

Also, I said name/logo is copyrightable. Same thing here - expression in the name/logo implies potential copyright protection. This is also pointed out in the link you sent.

My earlier comments are corroborated by your link, not disputed.

scruffymmh said:

That page presents quick and very dirty info, and there are nuances that aren't described (but they are mentioned, so I don't know why you say it disputes basically every word I've written).

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But you're new here and this *is* the Internet. I backed my statement with official government evidence. Do the same and maybe we'll consider your opinion.

That "quick and dirty" is pretty darn clear about the importance of SUBSTANTIAL literary expression. Cite reference where an individual recipe or a name/logo meets that criteria. Otherwise you're just spouting another random opinion on the Internet.

Sorry to interrupt the argument but from my understanding, no i am not a professional but i have studied this for a few months, that you cannot copyright a name. I have heard from multiple sources and is confirmed on the Copyright office website. Otherwise the last 3 points that scruffy has brought up are quite true.

That is all from my unprofessional opinion.

OK, from an attorney in Florida (me):

I ain't no copyright att'y, but I can read cases and statutes alright.

1. 37 C.F.R. § 202.1 says that mere lists of ingredients cannot be copyrighted. It also says that ideas, plans, methods, systems, or devices cannot be copyrighted.

2. Publications Intern., Ltd. v. Meredith Corp., 88 F.3d 473, says individual recipes in cookbook were not entitled to copyright protection, where recipes comprised lists of required ingredients and directions for combining them to achieve final products, without expressive elaboration.

3. In Barbour v Head, 178 F.Supp.2d 758, the court emphasized the 7th Cir (the above case), which said, “We do not express any opinion whether recipes are or are not per se amenable to copyright protection, for it would be inappropriate to do so. The prerequisites for copyright protection necessitate case-specific inquiries, and the doctrine is not suited to broadly generalized prescriptive rules.” It also said, "the court elaborated that recipes may warrant copyright protection in a variety of circumstances, such as where the recipe includes “suggestions for presentation, advice on wines to go with the meal, or hints on place settings with appropriate music,” or where the recipes are accompanied by “tales of their historical or ethnic origin.""

Thus, from this reading, one might conclude:

1. mere lists of ingredients = not sufficient.
2. ingredients plus process/procedure = not sufficient.
3. ingredients, process, and some other original expression MAY be sufficient, depending on the specific facts of the case, the location of the case, and other factors known and unknown.


NOTA BENE: The foregoing has been for informational purposes only, and may not be construed as legal advice. No attorney-client relationship is formed by reading this post. Please eat your greens and get 8 hours of sleep. If your man-bits stay alert for more than 4 hours, consult a doctor.

What the heck, I'll throw my two cents in here too... And yes I am a licensed attorney although I do not regularly practice intellectual property law. I think that the semantics is what is confusing everyone and no, Jkarp is not wrong... just not as specific as scruffy, who is also not wrong. The list of ingredients is not copyright protected. The method the author uses to describe how to perform the recipe might be protectable. The actual page the recipe is printed on is protected (e.g., you cannot photocopy it, but you can reproduce the ingredient listing and amounts). The font, color, etc are not necessarily relevant unless they are used in such a way, as scruffy points out, to be "expressive." But simply typing out a recipe in black lettering, 12pt arial font, would not likely be "expressive." The whole patent thing is off point to the topic for way too many reasons to get into here (better topic for the American Bar Journal). However, the individual who suggested patenting a unique strain of hops, malt, yeast, would be correct in suggesting those could be patented.

qbst said:

Thus, from this reading, one might conclude:

1. mere lists of ingredients = not sufficient.
2. ingredients plus process/procedure = not sufficient.
3. ingredients, process, and some other original expression MAY be sufficient, depending on the specific facts of the case, the location of the case, and other factors known and unknown.

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Excellent summary of the relevant law.

I was going to issue a longer response later but the last few posts make the necessary points. Underneath the semantics, we're probably all in agreement. From a purely copyrightable subject-matter standpoint, my previous post is accurate and J's link to the Copyright Office's website briefly explains what I'm getting at. Recipes are not per se un-copyrightable and a name/logo combination is not per se un-copyrightable. That was and still is my point.

Trademark is overwhelmingly the more popular approach for trade-related marks, for various reasons that aren't necessary for discussion here.

Thank you the recent posts for elaborating.

3. ingredients, process, and some other original expression MAY be sufficient, depending on the specific facts of the case, the location of the case, and other factors known and unknown.

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So this is probably where things like the "secret" coca cola formula or even the 7 herbs and spices recipe/process for KFC would be protected?

revvy said:

so this is probably where things like the "secret" coca cola formula or even the 7 herbs and spices recipe/process for kfc would be protected?

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11

qbst said:

OK, from an attorney in Florida (me):
[...]

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Now THIS is how one makes a useful contribution to a thread. Excellent work qbst.

Revvy said:

So this is probably where things like the "secret" coca cola formula or even the 7 herbs and spices recipe/process for KFC would be protected?

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No. The only way Coca Cola and KFC protect those ingredients is by keeping them secret. If you knew what they were and posted then but did not obtain the list unlawfully (i.e., as an employee), there would be nothing those companies could do about it as against you.

What would be protected (as scruffy mentioned) would be the names Coca Cola, or KFC, or even possibly the phrase "seven herbs and spices" under trademark law.

Revvy said:

So this is probably where things like the "secret" coca cola formula or even the 7 herbs and spices recipe/process for KFC would be protected?

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uncommonsense said:

11

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It's probably REALLY only 7 and the "11" the Colonel constantly refers to includes dupes. That way, they throw off would-be cloners and have them chasing their tails!

Mals

jkarp said:

Now THIS is how one makes a useful contribution to a thread. Excellent work qbst.

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I'm not sure I understand your going out on a limb and saying an IP attorney doesn't know anything about IP because he has few posts on a hombrewing board. Homebrewing knowledge/ability is pretty poorly correlated with posts on homebrewing boards, I would think IP law knowledge is even less so.

remilard said:

I'm not sure I understand your going out on a limb and saying an IP attorney doesn't know anything about IP because he has few posts on a hombrewing board. Homebrewing knowledge/ability is pretty poorly correlated with posts on homebrewing boards, I would think IP law knowledge is even less so.

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Few posts = he's not known / vetted with the HBT community as an IP expert.

I would expect someone claiming to be an IP expert to be able to back up what are rather extraordinary claims like the ability to copyright a recipe or a simple name with some cited references. Otherwise, it's no different than some random chap coming here and telling us we're all idiots for not putting raw oats in our beer bottles. Simple, really.

Well hold on jkarp. What did you want him to back up his very brief statement with? Sure he might have had the time to pull up all the relevant case law and give you meaningless citations to legal reporters that the average person would have no idea how to access. He made an accurate statement of the law and posted it in a brief, yet concise, format. Granted I agree with you that his statements might have been a bit technical and could be construed as all encompassing to the average person. But just because he doesn't have lots of posts on this site doesn't mean he isn't a well versed attorney. Regardless, just because he didn't spend the time to give you a couple legal citations out of thousands that could be on point, certainly doesn't mean that his statement had no merit. And I'm not knocking you, but he was absolutely right that the internet statement the government posted is very "down and dirty." That statement barely scratches the surface of the intricate nuances of intellectual property law.

BigB said:

Well hold on jkarp. What did you want him to back up his very brief statement with?

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Here's the quote:

scruffymmh said:

BigBlueDog is correct and jkarp is not. You CAN copyright a name/logo, although trademark protection is usually preferred. Also, a written recipe IS copyrighted as soon as it's written down.

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This of course flies in the face of what we homebrewers have all understood for years. Asking for a relevant citation is entirely reasonable. If he's correct, and 40K people here on HBT have had it wrong all along, we need to know!

On the other hand, if he's referencing some obscure edge IP case law that's not applicable to beer recipes whatsoever, then this just becomes another discussion that muddies the waters for the OP and future brewers who search for recipe copyright info on HBT.

Just like my sig that's a not so gentle jab at all the electricians here on HBT (and their silly disclaimers) that insist on confounding every OP with esoteric BS, I'd expect someone who's an expert on IP law to stay on point and accurately answer the OP's question - not confuse the hell out of 'em.

Finally, you're definitely not knocking me - I didn't write the copyright.gov FAQ. "Down and dirty" or not, I can't help but notice that it's extremely well hyperlinked to additional detail in each section. I've seen far, far worse on the Internet from our government, frankly.