Recipe Pirates

Somewhere on the Internet there must be an image of a chef, avec toque, with a pirate’s eye patch over one eye.  When I find it, I’ll add it to this post, because recipe piracy is afoot according to a recent study reported on CNET.

Content tracking company Attributor recently conducted a study to get an idea of how frequently online recipes are copied and reposted to other sites. What it found might concern some recipe publishers. . . .

Based on the results, Attributor found that copying recipes online is “rampant,” said Rich Pearson, senior marketing director for the company. Attributor found just over 10,000 copies of recipes that originated on the three sites. In more than 60 percent of those cases, the reposted recipes weren’t attributed to their original sources.

Copyright scholars and even some lawyers may dismiss the results on the ground that copying, even without permission, isn’t necessarily infringement.  The conventional wisdom holds that the “instructions” in recipes constitute uncopyrightable subject matter under Section 102(b); only descriptive matter can be copyrightable.  But counting things tends to make them salient, and salience often breeds a response — socially, at least, if not necessarily institutionally.  As a result of attention to the alleged problem of “recipe piracy,” we may see steps taken to reduce the public availability of recipes posted to the Web — or distributed elsewhere.

Bad thing?  Good thing?  There are good reasons to suppose that chefs are creators, too.  Notwithstanding their norm-based enforcement of pseudo-proprietary rights in their creations, would some formal legal protection be helpful?  We may be about to see.