On the Legal Consequence Of Sauces: Should Thomas Keller's Recipes Be Per Se Copyrightable


This article is devoted to copyright protection for one of the restaurant industry’s most valuable assets – original recipes. The two most recent appellate courts to consider the issue have been hostile to the notion that recipes are copyrightable, but given the enormous amount of money at stake, litigation in this area is likely about to expand. The article begins by critiquing the courts’ conclusions. Following an analogy to musical composition, I argue that recipes are simply the means of fixation for culinary works of authorship, i.e, dishes. Next, based on interviews with some of America’s leading chefs, including Thomas Keller, Charlie Trotter, Rick Tramonto, and Wylie Dufresne, I suggest that chefs use recipes to express a variety of ideas and emotions. This section ends by concluding that there are no doctrinal limitations to recipes’ copyrightability. In Part II, I suggest reasons why recipes may have lagged behind other media in recognition by copyright law. I explore the marginalized status of the sense of taste in Western philosophy, and I propose that chefs adopted the norms of Romantic authorship and originality at a slower pace than poets, painters, and musicians. Part III argues that, while recipes may be formally amenable copyright, they should not currently receive monopolistic protection, because granting copyright to recipes would not promote any of the law’s stated goals. Moreover, I suggest that formal legal protection is not necessary, because a vibrant system of social norms exists to sanction plagiarism, assign credit, and promote innovation.


Entertainment, Arts, and Sports Law | Food and Drug Law | Intellectual Property Law

Date of this Version

August 2006