By Juliana Cote

            Intellectual Property (IP) law walks the line between protecting the originality of creative works and maintaining a free marketplace of ideas.[1] Recipes, however, have long presented a challenge to that balance because they do not fit neatly into the traditional avenues of intellectual property protection. While social media platforms have exacerbated the flaws of IP law in the food context, they may also present an alternative means of justice for food creators to protect their intellectual property.

            Four traditional avenues exist for intellectual property protection: (1) trademarks, (2) trade secrets, (3) copyrights, and (4) patents.[2] Each presents unique challenges for recipe developers. This leaves food content creators with no perfect legal recipe for recipe protection.[3]

            First, industry professionals favor trademarks as their primary form of IP protection in the food industry, but social media complicates that favoritism.[4] Trademarks protect words, names, symbols, or devices used to identify and distinguish goods or services and indicate their source.[5] Trademarks can include names or symbols associated with a recipe or food product, provided they are used in commerce to identify the source of the goods.[6] For example, a restaurant name or a branded food product associated with a recipe may qualify for trademark protection. While companies trademark many food items, think Tootsie Rolls or Oreos, it is difficult for food creators to meet the requirements.[7] If a creator is only using a recipe as social media content, that recipe is not used in commerce and cannot be trademarked.[8]

            Next, trade secrets provide clear protection for recipes while also having a clear downside in the context of social media creators. As the name implies, trade secret protection applies to information that derives economic value from not being generally known.[9] This presents an obvious problem for recipe creators, whose online platform consists of them sharing their recipes. Therefore, trade secrets are not a good option for food content creators.

            Continuing to copyrights, despite being an easy solution for cookbook authors, content creators have difficulty getting copyright protection. Copyrights protect original works from unauthorized reproduction and distribution.[10] In the recipe context, copyrights protect the expressive text of a recipe which can include the list and sequence of ingredients, the precise language and grammar of step-by-step instructions, prose descriptions, personal anecdotes, and creative styling.[11] However, copyrights do not cover recipes that are mere lists of ingredients with basic instructions.[12] Therefore, recipes alone are rarely given copyright protection unless they contain a sufficient degree of originality and creative expression.[13] The distinction between barebones recipes and those with additional creative or literary content is especially fuzzy in the context of social media.

            Finally, patent protection for recipes is similarly elusive. The U.S. Patent and Trademark Office grants patents for new and useful processes, machines, manufactures, or compositions of matter.[14] This can be useful for recipe developers, since they seek to protect the processes of cooking that a recipe contains. However, to obtain a patent, a recipe must be novel, non-obvious, and useful.[15] These can be difficult hurdles to overcome, unless the recipe demonstrates a cooperative relationship between ingredients that produces an unexpected result. Online recipe content creators rely more on volume of posting than intricacy of recipe to create content.

            So, what recourse do content creators have when others steal their recipes and intellectual property law offers no remedy? Social media provides a solution: put justice into the hands of the people. Social media’s public nature gives creators an avenue to publicly air their grievances while using time stamps to prove the originality of their creations. This could lead to alternative dispute resolutions between the original creator and their imitators, or it could mean a trial by public opinion. Whatever the result, it is a meaningful mechanism for justice outside of established intellectual property law.

            The legal system’s failure to protect food content creators’ intellectual property is not a recipe for disaster. Social media provides a unique opportunity for food content creators to take justice into their own hands.

[1] Kurt M. Saunders & Valerie Flugge, Food for Thought: Intellectual Property protection for recipes and food designs, 19 Duke Law and Tech. Rev. 159, 159. (2021).

[2] Sterling Miller, Modern General Counsel: Four types of intellectual property, Thomson Reuters (Nov. 12, 2021), https://legal.thomsonreuters.com/en/insights/articles/four-types-of-intellectual-property.

[3] Alessandra Fable, Something to chew on: Where does food fit into IP protection in the age of social media, J. of Tech. and Intell. Prop. Blog (April 19, 2023), https://jtip.law.northwestern.edu/2023/04/19/something-to-chew-on-where-does-food-fit-into-ip-protection-in-the-age-of-social-media/.

[4] Id.

[5] 15 U.S.C. § 1127.

[6] Id.

[7] Michael Kondoudis, Can You Trademark Food Names?, MK Law (last visited Sept. 21, 2025) https://www.mekiplaw.com/trademark-food-names-a-complete-guide/.

[8] Samantha Levin, Are Recipes and Cookbooks Protected by Copyright?. Copyright All. (Nov. 25, 2024), https://copyrightalliance.org/are-recipes-cookbooks-protected-by-copyright/.

[9] 18 U.S.C. § 1839.

[10] 17 U.S.C. § 102.

[11] Id.

[12] Barbour v. Head, 178 F. Supp. 2d 758, 762 (D. Tex. 2001).

[13] Harrell v. St. John, 792 F. Supp. 2d 933, 943 (D. Miss. 2011); Publ’ns Int’l, Ltd. v. Meredith Corp., 88 F.3d 473, 480 (7th Cir. 1996).

[14] Patent process overview, USPTO (last visited Sept. 21, 2025), https://www.uspto.gov/patents/basics/patent-process-overview.

[15] 35 U.S.C. §101.