I want to mainly address some potential confusion among what seems to be a lot of people, despite previous posts by others which I thought clarified these issues. To the OP and anyone who just wants my opinion, for what it's worth, regarding what you can or can't do with respect to clone beer, just skip to the last paragraph. The paragraphs between contain explanation, which at this late hour will probably be less-than-equisitely-conveyed.
Initially, I should have been more clear about my statement that Jkarp quotes above. I said ...a written recipe IS copyrighted as soon as it's written down but this was entirely too thin and I should have expanded. As
this link (provided by Jkarp) to the Copyright Office's website points out, a mere listing of ingredients is not enough, but ...where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions...there may be a basis for copyright protection. My point was: writing the recipe down will automatically create whatever copyright protection it deserves, and that that protection may be something more than 'no protection' (provided it contains, what the Copyright Office terms, 'substantial literary expression'). Some posts appear to take the stance that a beer recipe could never be copyrighted, and my point (albeit not so-well conveyed in my earlier post), was and is that that stance is improper. BigBlueDog made this point earlier as well.
Also, I think Jkarp's most recent post exemplifies a misconception that perhaps a bunch of people have: Jkarp writes: Conventional brewing wisdom says no. Individual beer recipes are not copyrightable and cloning is fine. This wisdom is not HBT exclusive. It has also been written in numerous brewing publications, and echoed over and over by some of the most respected persona in this hobby. Heck, homebrew stores across this country SELL clones. BYO regularly does entire issues of clone recipes.
Whether the brewing community respects this or not, as noted above: beer recipes are not per se uncopyrightable. In practice, it might be difficult to see how/why anyone would want to, or be able to, successfully inject 'substantial literary expression' into a beer recipe, but that isn't significant to the inquiry whether the subject-matter of beer recipe is or is not copyrightable. Putting that point aside, there's another issue I have with jkarp's quoted language above, which I read as saying 'the brewing community holds that copyright in a beer recipe doesn't exist, and so cloning a beer is fine. This is a popular stance; look at what homebrew stores do and even BYO magazine does, in selling clones and publishing entire magazine(s) of clones.' This statement implies, to me, that BYO and homebrew stores are comfortable with selling cones and publishing recipes since they hold the belief that copyrighting a beer recipe is not possible. [If this reading of jkarp's post is incorrect or inaccurate, point it out.] I would be surprised if BYO operates on the false premise that publishing a recipe is OK 'because the recipe is not and cannot be copyrighted. My statement in this regard is: The legality of cloning a beer, selling a clone of a beer, or publishing a clone recipe of a beer
does not rest on the inability to copyright a beer recipe. This is because: (i) a beer recipe might be copyrighted (see above), and also because (ii) copyright protection would not protect against these activities anyway. So, while the conclusion that 'cloning, selling a clone, or publishing a recipe of clone beer is not illegal' is correct (in my opinion), the reasons that the homebrew community uses to justify this, assuming we take jkarp's alleged (by me) implication as accurately representing the stance of the homebrew community and BYO, are erroneous.
If you had a copyright on a beer recipe it would prohibit basically duplication and distribution of the recipe, and perhaps recitation of the recipe in public, assuming that the duplication/distribution/recitation captured the artistic elements that spawned copyrightability in the recipe. It would not prevent someone from making the beer; making the beer is the act of following the recipe to produce the beer, and neither the act, nor the beer is copyrighted, the recipe is copyrighted. It would also not prevent someone from distributing a clone recipe kit of the beer, because the kit (assembly of ingredients in their proportions) is not copyrighted. The potentially sticky area, as I see it, is in the publishing of the recipe. The recipes I typically see in BYO and in homebrew books, shops, and kits consist of a listing of ingredients with some brief process steps which include some temperature and timing directions. A mere listing of ingredients is not enough, and a listing + procedure/directions is also generally not enough (see qbst's previous post). Therefore, those who disseminate an ingredient listing and process steps of a copyrighted beer recipe have
almost nothing to worry about, since it isn't those isolated aspects which attain copyright protection. I say
almost nothing to worry about because if that dissemination captured the artistic elements of the copyrighted beer recipe, then that would potentially be cause for problems. The only example I can immediately think of that could get BYO in trouble is if they photocopied into the magazine the copyrighted beer recipe.
The above paragraph assumes that we're dealing with making, selling, and publishing the actual recipe. If we're talking about a clone beer in the sense that the recipe was independently formulated, perhaps even using tidbits from the brewers/insiders, such as hop variety, grain bill ratio, etc., then there is even less potential of unlawful activity, as I see it. Isn't this independent formulation what BYO and the other sources for clone recipes actually do? Formulation usually just produces an ingredient list and the process (right?) generally not copyrightable (see above and qbst's post). Any incorporation of the artistic elements (of the copyrighted original) into the formulated clone that are relevant to copyrightability would almost certainly be coincidental and from independent creation (a defense to an allegation of copyright infringement). And, since we're dealing only with ingredient list and a process in the typical formulation anyway, the chances of nailing the artistic elements of the copyrighted original is so slim, by virtue of the fact that it is difficult for the list and/or process to encompass any of the salient artistic qualities in the first place.
For those wondering about whether they need to worry when dealing clones, I say: If you aren't under contractual obligation to refrain from developing or making the clone, you didn't receive misappropriated trade secret information on which you now act, and you don't take a copyrighted beer recipe and photocopy it, you are probably good to go. Making your own recipe that tastes exactly like some other beer that happens to be made from a copyrighted recipe or happens to be marketed using a trademark, without more, is not unlawful, and neither is following a kit you get at the HBS.
