This was first posted on February 20, 2009:
Back and forth in in social networking space — once Facebook, I digest some key ingredients of intellectual property as it applies to famous burgers (reprinted with Ivan’s permission):
Today at 10:35am

Hi Ron,

I had an interesting IP question/hypo that’s been weighing on my mind the last couple of days. (At at least it seemed interesting to a non-IP person such as myself- there may be well-settled law on this. This is purely hypothetical, and I’m not seeking legal advice of any sort.)

A book entitled Top Secret Recipes, written by Todd Wilbur, became a top seller some time ago. It features the recipes of same famous franchise foods, like the Big Mac, or other foods, such as the Twinkie. ( Presumably, Wilbur reversed-engineered these foods according to his taste, and then wrote the recipe book based on his experimentation.

My question is, did the author have to obtain permission/enter a licensing agreement of some sort with the litnany of franchises (i.e., McDonald’s KFC Yum Yum, et. al.), before publishing such a work? If the author did not get permission, do McD’s, Hostess, et. al. have a viable cause(s) of action against Wilbur, who presumably has profited as a result of publishing his interpretation of the recipes? Presumably, Wilbur did not convert any “trade secrets” as it were, but it does appear that he’s using their intellectual property for his commercial gain. What would the franchises’ cause(s) of action be in such a case?

I did a Google Search; there appear to be no suits filed in connection with this book. So I remain curious.

Thanks for reading,

My answer:
Today at 12:07pm

No, he has every right in the world to do this as long as his use of the trademarks associated with these famous foods is not misleading

Recipes are generally impossible to protect. You can copyright a cookbook but not the information in it, i.e., the recipe itself. You can’t patent a sandwich. (See here.)  Mainly recipes actually are at best trade secrets, and you always are allowed to reverse-engineer someone else’s trade secrets or, if they are revealed to you and you are not under a contractual or other legal obligation to maintain confidentiality, to go tell them on the mountain.

In short, Wilbur didn’t profit from their intellectual property. He profited from his hard work in figuring out what it was they were selling successfully. People often forget that the main reward from intellectual investment — which is the only way intellectual “property,” protectible or otherwise, can come into being — is the benefit, commercially or otherwise, of what you create itself. McDonald’s gets the benefit of its investment in the Big Mac every time you buy one, and is also given the privilege by trademark law of preventing Wilbur, Alexander or Coleman from calling anything we make, no matter how exact a copy, a Big Mac. That’s really more than enough!

Today at 12:18pm
Thanks Ron!

By Ron Coleman

I write this blog.

5 thoughts on “Best of 2009: “Intellectual property and its digestion””
  1. As I always say: Copying Is Good. Copying Is The American Way. American Law Supports Copying.

    Meaning, the default position in U.S. law is that copying is permitted. Unless you can show an affirmative IP right, you cannot prevent someone else from copying or using your creative efforts.

    (Interestingly enough, however, other countries see things differently. So beware if you taken your parasitic exploitation abroad.)

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