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US recipe case gives a flavour of the difficulty of protecting recipes

29 October 2015

The American case Tomaydo-Tomahhdo LLC v George has provided a useful reminder of the difficulties in protecting recipes. The claimant and defendant had for several years run the Tomaydo-Tomahhdo restaurant together, for which the defendant developed recipes. After the defendant left the business, the claimant released a recipe book, containing what the defendant considered to be his recipes, and subsequently claimed against the defendant for breach of copyright in the recipes.

The claim failed on the basis that the claimant did not own the copyright in the recipes (if copyright existed at all in mere statements of fact), and that, as a compilation, the material had not been “selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original authorship”.

Similarly, in order for a compilation to be protected by copyright in the UK, it must represent a single exercise of taste and judgment and be planned, with an overall design. A compilation may alternatively fall under database right, which (amongst other requirements) must have involved an element of intellectual creation.

It remains the case that in the UK and USA that a mere compilation, such as a recipe, is unlikely to be sufficient to attract copyright protection unless its creation involved creative or intellectual input.

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