Every creative professional worries that someone may use their work without permission (also known as “stealing,”) and there is plenty of reason to be confused about how copyright laws apply to food blogs. Here’s a quick guide on copyright and a couple of other key legal issues that every food blogger should know.
Copyright: Generally, recipes are “procedures” and lists of ingredients, and thus not covered by U.S. copyright law (17 U.S. Code § 102.)
Narrative: However, the narrative of a recipe may be subject to a copyright, if it has “substantial literary expression,” according to the U.S. Copyright Office. If you have more narrative, you are more likely to protect your work.
Images: Copyright does apply to videos, photographs, and illustrations.
Acknowledgement: If you use another person’s recipe, ask for permission and give credit. Although these steps may not be legally required, think about what you would want others to do to you.
Adaptation: If you create your own recipe based on someone else’s, give credit by saying your recipe was “adapted from” or “inspired by” the originator. For a discussion on this, visit the Food Blog Alliance website.
Privacy: Get permission from people whose images are in photographs that you plan to publish. State laws vary on whether people have a privacy right to protect their images in public places, but this is another situation where you should do what you would want others to do to you.
Disclosure: Federal Trade Commission rules require clear disclosure if a blogger promotes a product or service in exchange for a payment or other compensation. This includes free product samples, restaurant meals, or any other item of value that is not generally available to all consumers. The FTC website has a thorough guide that shows how to do this with as few as three characters. Linking to a separate page with your disclosures is not sufficient. (Bonus: Google’s Louis Gray and artist Jeannine Schafer created a handy set of disclosure icons.)
For a more detailed discussion of how copyright law applies to recipes, visit The Definitive Guide to Recipes and Copyright by Louise Hendon. I consulted Hendon’s article in addition to case law, statutes, and government references when writing this post.
Disclaimer: Although I am an attorney licensed to practice law in Maryland, this blog post is for information purposes only and not intended as legal advice. Consult your own attorney for advice specific to you.
Here is a link to the slides that I used at the Arizona Infectious Disease Training conference in Phoenix, July 27, 2016. Please feel free to view the slides, but contact me for permission if you want to publish or use them for anything other than your own personal reference. Thank you.
“By late 2000, tensions were boiling over inside Yahoo. One day, Jerry Yang sat down for an interview with Doug Levy, a former journalist who had become well known for his tech industry coverage in USA Today. Levy was no longer a member of the media. He was working as an independent media consultant and he’d figured out a good gig. He would go into a company and interview its executives as though he were going to write an article. Then he’d prepare a critical piece and let them read it. The idea was to show them where the company’s holes were.”
Every blogger knows that images are essential both to better storytelling and attracting an audience, but not every blogger creates their own photographs. This article is intended to help you find and use good images without infringing on another person’s creative property (i.e., stealing.)
Photographers are no different from bloggers, authors, software engineers or anyone else whose living depends on the intellectual property they create. Many photographers are highly compensated for their work and won’t hesitate to take action if they discover that one of their images was purloined, as they should. Receiving a demand letter (or an invoice!) from an aggrieved copyright owner is something to avoid.
Let’s start with a couple of basic rules:
Giving credit does not by itself make using someone’s images ok or legal.
Many photographers make obtaining permission easy.
There are lots of ways to get images that are freely available.
For a good discussion about using other people’s content generally, check out this blog post by attorney Ruth Carter. For images, Carter says she relies on images that are protected under a Creative Commons license to modify and commercialize the original.
All Rights Reserved
If you find an image that you like, check the copyright notice. This is sometimes in the caption, although occasionally you have to hunt around on a website for it. If it says “All rights reserved,” then you must obtain permission before using it.
The phrase “all rights reserved” is not mandatory. Unless content owners expressly give permission, you should presume that they are keeping all use rights. That means you must contact the owner and negotiate permission if you want to use their material. Sometimes a quick email is all it takes. With companies, there may be rights management departments, forms to fill out, and licensing fees based on the intended use. For most bloggers, this is more trouble than it is worth.
Creative Commons is a framework for copyright protection that includes clear information on what permissions are available. Many people are happy to freely share their content for certain kinds of use, so there are a ton of images with a Creative Commons license. Just make sure that you read carefully. There are six different categories. Only three of those categories allow commercial use. All six require attribution. The differences primarily have to do with commerical or non-commercial use and whether you can alter the content or only use it exactly as the originator published it. More information about each of the Creative Commons licenses is available on the Creative Commons website.
Image Search Tools
Here are some sources for images that can be used by bloggers and others without going through a lot of hoops for a license:
Creative Commons has a portalto the search features on about a dozen sites that have images or other content available for reuse. You can select whether you want to search for content that can be used commercially or modified.
2. Wikimedia Commons is a repository for a vast array of images from individuals, organizations, libraries, government and other sources that are generally available for republishing. Many of the images are in the public domain, which means you can use them as you like, no restrictions. The typewriter image here was contributed by an individual who chose not to retain copyright.
Consistent with the sharing culture of Wikimedia (and Wikipedia,) the site prompts you to include a credit line and makes it easy. Just click on the bar that says “You can attribute the author” to get a ready-to-use plain text or HTML credit line.
3. Flickr has long been a favorite site for photo sharing by serious amateurs and some professionals, in part because of its built-in rights management. If you search for an image, the copyright status is at the top of the download screen. Flickr also allows you to search by license type.
The options include the variations of Creative Commons licenses, no restrictions, and “U.S. Government works.” (See below for more on this last category.)
4.Pixabay is a search site for images that are in the public domain. It also has an especially good explanation of what that means, and why “public domain” does not necessarily mean unfettered use.
5. Wylio is a service that streamlines the process to find and use images from Flickr. Basic search is free, but for $3 a month, users can search and find images via Wylio.com and in one step, obtain cut-and-paste embed code for WordPress or other blogs. For non-Wordpress blogs, the image download button has the reminder: “Don’t forget to add the credits somewhere,” which is mandatory under Creative Commons licenses. It also provides a credit line for immediate use.
6. Similar to Flickr, Google Image Search has an option to search images by license type. However, because Google search pulls from all websites, you must verify the copyright or permissions on the image’s original page to be sure.
7. PRNewswire is another source for images that typically are restricted but permission is freely granted to bloggers or other journalists using the pictures as part of a relevant story. The cute baby eagle picture is one example.
U.S. Government Works
The last category on the Flickr advanced license search is one gateway to a vast resource that many bloggers overlook: By definition, nearly all images produced by the federal government are available for public use without restriction. This means that spectacular science images from NASA or the National Institutes of Health are among the assets that are free for the taking. (The rule is not so simple for state or other government units, but these can be great sources, too.)
In addition to images that you can find on Flickr or Google, here are direct links to a few federal sources for images: