SC - Copyright from the Copyright Lawyer

[TG]

>>>I would suggest anyone who has a problem with this contact an actual
>>> copyright lawyer (or better yet an attorney connected with a cookbook
>>>> publisher) connected with a publishing company instead of relying
>>> on the emotional but inaccurate information that seems to fly through
>>> the list everytime this subject rears its ugly head.

OK, Ras, now ya done it -- you've invoked me.

Hi, y'all.  I am a copyright (and related areas of law) lawyer by
profession.  I am the one who wrote the two-part article on Copyright Law
and the SCA that appeared in TI last year, and who travels to major Wars and
other events (Collegia, Ithras, etc.) talking about how copyright law
applies in the SCA.  As I recall (I am currently on a five-city, two-country
tour) recipes were addressed in Part 2 of the article.  I am also a skilled
cook, both modernly and in SCA terms, having headed and supported quite a
number of feasts over the years.  Further resume and alphabet soup available
to those who demand it.

Credentials over, I give you think on the subject (and note, it is almost
exactly the same for Canada and other Commonwealth countries as it is for
the USA; cross-referencing upon request):

1)  Things are protected by copyright law as soon as they are produced in "a
tangible medium of expression."  This means, as soon as they are put into a
form that others can read, listen to, or otherwise review on their own time.
If you talk, it is not protected by copyright.  If someone tapes your words,
or transcribes them, the tape or transcription is.

2)  THIS INCLUDES RECIPES.

3)  As a rule, the term of copyright is life-plus-75 years if the thing is
created by and the copyright held by an individual; 125 years if created for
a corporation and the agreement says the corporation owns the copyright.
(This was recently increased from life-plus-50 and 100 years).  So, as a
rule of thumb, anything published after 1923 should be considered to be
protected by copyright unless you have proof to the contrary.

4)  THIS INCLUDES RECIPES.

5)  Note that for much of our cooking, the original recipe will not be
protected by copyright because they predate 1923.  Just be careful that you
are using the original text and not a translation of some kind, which would
be protected.

6)  Certain very basic things cannot in and of themselves be protected.  For
example, a basic chocolate cake recipe will not be protected.  But that
recipe as part of a collection in a book called "Great Cakes" will be
protected as part of the collection, and proper attribution MUST be given
when reproducing that recipe.  Also, if the reproduction is for financial
gain, you should probably get written permission.

7)  Certain other exceptions exist, including for comment or review, and for
educational purposes.  Thus, if you were using the above-mentioned chocolate
cake recipe to discuss with a class the differences in taste and texture
among various recipes -- why one might be drier, lighter, denser, etc. --
then you can use the recipe WITH ATTRIBUTION but without having to get
written permission first.  Or, if you are writing a review of the book, and
include a sample recipe (the theory being that people will be enticed to buy
the book to get the rest of the recipes).
    NOTE:  There is an exception to the exception: you cannot do this if you
will be quoting the key item in the book.  The idea is to encourage
purchases, but if the quoted material is a spoiler and will prevent people
from buying the book, you are not allowed to use it without prior written
permission.


HG Cariadoc's summary was fairly correct.

I disagree with a point about what Ras said, no matter his origin of the
information.  While a basic recipe may be a formula, this does not in and of
itself make the recipe uncopyrightable.  The written words of the recipe are
technically protected, and the more original the recipe and attendant
writing, the more likely it is to be protected on its own.  Note that most
recipes are indeed protected as part of a collection and not individually.
But a recipe that include the original, a discussion of how the modern
version was achieved, and the modern version itself, would be protectible as
a whole.

A basic recipe for chocolate cake, as I said, would probably fall into the
class of recipes cited by the attorney at Llewellyn Press whom Ras cited.
(Given that they make their living from publications, it is no wonder they
would claim that things are less protectible since their client's works are
most likely to be questioned.)  However, the kind of redacting done by most
SCA cooks is different and would more likely be protectible as original
words of authorship.  I have not tested this theory, but neither have I seen
information strongly to the contrary.

                                        ----= Morgan


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