[A word of warning before you read this: totally disorganized rambling to follow. Sorry about that, I realize there’s way too much in here, but this week has left me no time for careful editing. I promise to do better next time!]
When we started doing a first vine newsletter with recipes and wine pairings, I thought of it as an e-mail to friends, arguably more of a personal communication. I attributed the recipes to their sources – and almost all of them were not only modified from their originals, but I described how I changed them to suit my own taste. Some of my recipes were old family favorites with origins shrouded in the mist of time, and even my mother’s remarkable memory couldn’t always pinpoint the exact source.
These days it’s more complicated. When we decided to switch from an e-mail newsletter to blogging, it changed the stakes. An accessible, searchable text means that anyone can find his or her way to your blog and see what you’ve written there. Much better for exposure, certainly, but it’s real publishing with rules of conduct. It has made me think about posting recipes on our blog and how we treat copyrighted material when we’re writing and posting entries in a hurry.
The pre-internet days made some things easier because of the slower pace. I have plenty of cookbooks with recipes the authors claim to have adapted from other cooks’ recipes. They made a few changes, attributed the original (usually from a “great friend” of the author), and there you had it. No doubt their publishers got permission from the publishers of the “original” recipes (sometimes you even saw the additional copyright), and everyone was happy. If you’re publishing a printed book or cooking magazine, the lead time is more than long enough to get all your ducks in a row even these days, including permissions.
If your original recipe source is a website, you can link to but not print the recipe itself and steer clear of copyright altogether. My blogger friend Sue takes this approach in Food Network Musings. Her blog is the most scrupulous I’ve seen, and she only posts her own recipes or those for which she has permission. “There are plenty of times when I wish I could post a classic recipe from an old cookbook,” she told me. “If I can find the recipe on a legitimate website, I’ll link to it. Otherwise, I’ll invite readers to email me and I’ll send them the recipe I’m talking about. It’s not as handy or convenient, of course, but it’s my solution to the problem.” It’s an elegant one, too (at the opposite end of the spectrum, there’s a DC food blog that reprints recipes and photographs from cooking magazines with no visible evidence of permission.) There are a lot of legitimate recipe websites, such as Epicurious and 101 Cookbooks, that have recipes that may be similar, if not identical, to the recipe you’d like to post.
But as Sue mentioned, that doesn’t always work for print cookbooks, and as you know, I have a lot of cookbooks. If you’ve ever tried to get a publisher’s OK to reprint material, you know just what an agonizingly slow process it is. (It may work more quickly for the better-connected, but that’s certainly not me.) Some publishers still require that you mail or fax a request for reprinting. I had to do this when I asked permission to reprint one of Shirley Corriher’s recipes (and never heard a word back). Even if you can submit the request electronically, the standard reply is that it will take at least six weeks to get an answer. Six weeks? It might as well be a lifetime — guaranteed to weed out all but the most determined. That’s probably the point, too, otherwise they might find themselves swamped with blogger requests to the exclusion of everything else.
I don’t doubt the beleaguered publishing industry feels it has bigger worries than giving reprint permission quickly to bloggers, but that’s not going to encourage anyone to ask, either. It’s not like these companies haven’t had a few years to think about how to deal with the issue, and if publishers made an effort to be quicker about it, I think you’d see more bloggers featuring recipes “reprinted with permission.”
You can sometimes speed things up by approaching the author, as I did with Patrick O’Connell, and got a quick and gracious reply. It only worked because I could easily find his restaurant’s and publicist’s e-mail addresses. I’m lucky to have corresponded with a few other cookbook authors and would ask their permission directly to reprint their recipes (and no, I won’t give you their e-mails 😉 ). But if you have to contact the publisher to get to an author, that won’t help.
My ever-resourceful partner Cy, a librarian, pointed me to the U.S. Copyright Office’s link to advice on recipes. Interestingly, a list of ingredients is not copyrightable. What makes recipes original, and therefore eligible for copyright, is the total literary output, including the directions, explanations, and musings. A collection of recipes, such as in a cookbook, also qualifies.
Does this mean that if you change the ingredients and directions enough, the recipe qualifies as yours and you can reprint it at will? Most bloggers condense directions when they post recipes (unless they enjoy typing), which would make new text. And there is a widely-held, if unsubstantiated, belief among writers and bloggers that changing two or three ingredients does indeed make the recipe different enough to qualify as your own, as reported by Joyce Gemperlein in the Washington Post in 2006.
Her article contends that newspapers and cooking teachers have what’s called “fair use” of recipes (presumably with attribution) because they reprint with the purpose of “teaching, news reporting, scholarship or research.” Using the words “adapted from” or “based on” indicate that the recipe has been changed. Of course, I can’t imagine that the Post or any other print newspaper doesn’t have access to quick reprint permission, certainly much quicker than you or I do, so it’s kind of a moot point for them anyway.
It does raise the question, though, of whether blogs are eligible for fair use. I’m far from knowledgeable, and have only heard substantive discussions of fair use with the recent controversy over the Obama campaign poster. The issue there was artistic expression versus attribution and potential profit. Cookbook authors may enjoy the exposure that reprinting brings, but it boils down to whether reprinting a recipe would be financially detrimental to the person who originally wrote it. One blogger reprinting one recipe wouldn’t matter in the grand scheme, but thousands of bloggers reprinting thousands of recipes could have a cumulative effect, I suppose. (Just as clipping out a recipe adapted from a cookbook featured in a newspaper food section might suffice instead of buying the book for a number of readers.) The opposite is also true – those like me who are inclined to buy cookbooks might buy more of them once they’ve seen attributed recipes online. (DC Chef Nora Pouillon also alluded to this in Gemperlein’s article.)
I’d venture to say that print newspapers still have a wider reach than most food bloggers do. So if it’s a question of distribution quantity, what’s fair use for a print newspaper food section ought to be for food blogs, too. We’re all grateful for the reporting and food writing of Michael Pollan, Mark Bittman, and Marian Burros, but when you get to the less exalted, I think you’d be hard-pressed to find a distinction between newspaper food sections and the better food blogs. Are newspaper food sections really always engaged in “news reporting” or teaching as Gemperlein implies? I would say no, but I guess that depends on your definition of news or teaching.
For now, though, it may not matter much. Moral issues aside, according to the sources Gemperlein consulted, most bloggers won’t be sued for posting recipes, with or without attribution, because the stakes aren’t high enough.
If that’s true, it looks like my fellow bloggers and I are safe at the moment. I, for one, am content to loll in my small-potato status as a blogger (I’m holding out for the position of Wine Mogul instead). I will, however, send out a barrage of e-mails and faxes trying to get reprint permission (even as we all grow much older in the process), and only print recipes exactly when I have it. Anything else I print will be attributed and substantially modified from the original version, both in ingredients, directions, and surrounding text. I’m thinking more of “inspired by” than “adapted from,” and will try to be as careful as possible.
This week’s “inspired by” recipe is from a cookbook Sue reminded me of: an old edition of The New York Times Cookbook. Sue recently asked her readers about their cookbooks, and one of her questions asked for the oldest book that her readers still use for at least one recipe. So here’s mine. California Casserole is a baked ground beef chili/rice thingy topped with olives and cheddar cheese. The dish was a childhood staple, although my mother used less chili powder than called for (a surprisingly large amount for a recipe from a bland period in American cooking).
The modifications: I doubled the amount of beans, upped the spices, lowered the amount of rice, and changed the cooking method. Baking a dish with rice for as long as the book recommends can make the rice too mushy, but the rest of the ingredients need to cook longer than the rice does for better flavor. So I cook everything but the rice together on top of the stove for a little while, then add the rice and put it in the oven. I also decided that topping the dish with cheddar cheese and baking it like the book recommends makes the cheese too oily, so I top each serving with cheese instead. I made my version for my sister last year and she approved – I think you will, too.
The wine of choice? Château de Clapier Calligrappe 2008 ($11), a blend of Grenache and Syrah from the Luberon. The Luberon is one of the warmest places in the Southern Rhône, so even the Grenache has a bit more oomph than you might expect. The Syrah has a nice bit of spice and ripe fruit, and it all works well with a range of foods from pizza to steak. Oh, and California Casserole, too!
1 pound lean ground beef
1 tablespoon vegetable oil
1 large onion, finely minced
1 large green pepper, cut into small dice
4 cloves garlic, peeled and finely minced
1-1/2 tablespoons medium-hot chili powder
1-1/2 tablespoons Worcestershire sauce
3 or 4 dashes of hot sauce
Salt and freshly-ground pepper
¾ cup long-grain white rice
1 14-15 ounce can diced tomatoes
2 fresh (or what passes for fresh) tomatoes, coarsely chopped
1 14-15 ounce can red kidney beans (light or dark)
1 14-15 ounce can black beans
½ cup or so sliced stuffed green olives
Shredded cheddar cheese
Preheat the oven to 350 degrees F. In a large dutch oven, heat the oil, then add the beef and stir to form small pieces. When the meat loses its red color, add the onion, green pepper, and garlic. Cook until the vegetables are softened, then add the chili powder and cook for a minute. Add the Worcestershire sauce, the hot sauce, 2 teaspoons of salt, and some pepper. Then add the beans – including the liquid in the cans, and add about ¼ cup of water to each can to wash it out, then add that water to the pot. Stir in the canned and fresh tomatoes, then bring to a boil. Reduce to simmer, cover, and cook for 15 minutes, stirring occasionally. Taste for salt, it should taste a tiny bit salty because you’ll be adding rice to it.
Stir in the rice, then cover the pot and put it in the oven for 25 minutes. Remove the lid, scatter the sliced olives on top, then cover the pot again and bake for another 10 minutes. Check to see if the rice is fully cooked, if not you can remove the dish from the oven and let it sit, covered, for another five minutes. It’s best when it’s not completely dry, but still has a little liquid left, so go ahead and add a little water if you need to. Serve hot, topping each serving with some cheddar cheese.