After a bunch of street-thugs walk-away with Elaine’s recently purchased armoire, Kramer gifts Elaine a new one he was given by Yev Kassem, aka the Soup-Nazi. Unbeknownst to our favorite chef, he has left his entire list of soup-recipes in one of the drawers. Elaine, who has recently been banned from the store, decides to enact revenge by publishing all of the Soup Nazi’s recipes. Can the Soup Nazi protect himself in any way against Elaine’s vengeful tactics? Could he copyright the recipes to ensure they are not published?
In general, facts or figures cannot be copyrighted. They are just pure information that, as will be explained below, possess no creative elements. But what is a recipe? Is it merely a list of ingredients? ?r is there an element of creativity there that should be afforded copyright protection.
To begin with, the Constitution provides Congress the power to draft copyright laws. In Article I Section VIII Clause VIII, the Constitution states: “The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Over the ensuing hundreds of years, courts have grappled with exactly what Congress can allow to be copyrighted.
The Seventh Circuit has grappled with our exact question of whether a recipe can be copyrighted in a case where one book publisher effectively republished a recipe from a rival publication.
In particular, the court noted that the Constitution only permits copyright laws that protect “authors and inventors” and “writings and discoveries.” This, the court reasoned, means that there must be some sort of creative element and originality to the copyrighted work. Noteworthy, the court stated “no person can claim original conception of facts” so “they are excluded from copyright protection.” In accordance with these principles, the Copyright Act of 1976 (17 U.S.C. § 102, in particular, for you legal researchers!) does not permit copyrighting of anything that is an “idea, procedure, process, system, method of operation, concept, principle, or discovery.” (Note: Some of these might be protected under trademark law, but that is for another post and, for you law students, an entirely different course!)
So, the Soup Nazi would need to show that he has incorporated some originality and creative element to his recipes for them to be copyrightable. For example, if he included stories, ideas, or philosophy about the deeper meanings of cooking, like the way Elaine writes bizarre stories to accompany the products in the Peterman catalogue, then that might constitute some kind of creative element. Alternatively, the recipes could be accompanied by complicated presentation details like plating instructions or recommended wines to be served with. These also may qualify as creative elements that would lead a court to find the creativity and originality elements necessary for copyright protection.
So the key question here is whether a recipe is merely a list of facts, or whether there is come creative element to the average recipe. And if the Soup Nazi can only show that he has a mere list of ingredients, then he will not be able to claim copyright protection for his recipes.
Alternatively, Mr. Kassem could argue that he has another form of copyright – a “compilation copyright” – which is applied to the particular order that the ingredients are combined to create the dish. The rationale behind the compilation copyright is that while the facts themselves are not copyrightable (or in this case, the ingredients) the way the facts are arranged requires creativity and originality and can be copyrighted. To analyze this, courts will do a heavy fact intensive inquiry to tease out whether the author of the work has added enough creative elements to the list of facts so that the work can be copyrightable. Still though, the underlying list of ingredients is not going to be protected under copyright law.
Either way, no matter how delicious his soups, it does not seem like the Soup Nazi actually added much creative element to his recipes themselves – either through a traditional copyright or a compilation copyright. Kramer does refer to him as one of the “the great soup artisans” and as a “genius.” But as you can see in the below video, Elaine basically reads off a list of ingredients. So unfortunately for the Soup Nazi, it looks like he may be driven out of business and need to relocate Argentina. No copyright for you!