Carol has an old recipe that she found while searching through family archives going back a hundred years. The recipe for the confection—curiously known as the Beelzebub Cake—contained almost impossible to find, uniquely processed ingredients and spices. The recipe itself was written in indigo ink, with a quill pen and was framed by beautiful images of underworld creatures, devils, wild beasts, and full moons. The author of the artwork was not known to Carol but she thought it was a great-great-grandmother.
Using the recipe, Carol made the cake and it was a hit, so much so that a famous local restaurant approached her offering to buy the recipe for $100.00 and a gift certificate for two people. Was this a good deal for Carol, or could she do better? The answer turns on whether Carol understands the bundle of rights, if any, she has in the Beelzebub cake recipe.
While the U.S. Copyright Act protects the expression of an idea (not the idea itself), which, arguably would seem to include recipes, modern case law has taken the view that a recipe is not an “original work” but a “process” or “procedure” that is not covered under the current copyright statute. The artwork attending the recipe, however, presents different issues since it more clearly constitutes an original work possessing literary/artistic merit, which is more likely to qualify for copyright protection. There is another problem, however: Carol, arguably, may have inherited the recipe, but this does not afford her rights of authorship since she did not create the work herself. Moreover, at the time the artwork was composed, which could have been two generations before, different laws applied altogether. Indeed, earlier copyright laws, like the 1909 Copyright Act, afforded published works only a few decades of initial protection, required the copyright in the work to be renewed, and the work to bear a copyright notice. Under the Copyright Act of 1976, older unpublished works were afforded protection only until the early 2000s, when it expired. So, apart from the issue of whether Carol owns the copyright in the artwork, is that of whether it is even protected under current copyright law, a legal thicket probably best avoided if possible.
Another approach would be to consider the benefits of trade secrets law, which is designed to protect ideas that the owner has kept secret. Under the Uniform Trade Secrets Act, a model code that has been adopted, to some degree or another, in each of the 50 states, an idea may be eligible for legal protection if the idea derives “independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by other persons.” A key factor for qualifying for trade secrets protection is that reasonable efforts must be undertaken to maintain the secrecy of the trade secret and that the secret, itself, presents unique information from which its owner could derive actual or potential economic value.
So, if Carol has kept the recipe of the Beelzebub cake secret and has not sent it to all her friends and relatives, and has kept it in a drawer under lock and key and has not just taped it to her refrigerator for all to see, she may not only have found a recipe but, possibly, a trade secret. The lesson, here, is that a trade secret, as the name implies, needs to be kept secret to qualify for trade secrets protection. Third parties can try to reverse engineer a product in order to discover its secret ingredients, but a non-disclosure agreement can be useful in these circumstances to reduce this risk involving third parties to whom the secret must be disclosed by prohibiting the recipient party from disclosing the secret to others or using it to the disadvantage of the trade secret owner.
In sum, although it is probably not the case that the Beelzebub cake recipe itself is protected under U.S. copyright law, there is a chance that the accompanying artwork might be. The most promising road for Carol when dealing with her ancestor’s recipe, however, may be to consider it a trade secret that should not be sold outright to the local restaurant but licensed to it for a fee.
Furthermore, the license should be conditioned on the restaurant’s executing a non-disclosure agreement requiring it to protect the recipe’s secret ingredients from being revealed and, otherwise, not engaging in activities that could adversely impact Carol’s economic interest in the recipe.
The bottom line is that Carol should not take for granted that an old family recipe could have significant commercial value. One hundred dollars and a gift certificate may not be bad, but Carol could possibly do better. She might even be able to build a Beelzebub Cake Empire, and then buy that local restaurant.