Are published recipes on the internet considered ’open source’ for commercial utilisation?
<p>Let’s say there is a site where everyone share recipes for cakes. Everything is public.</p>
<p>Can you sell commercial product based on thoses recipes? Can you use the same name?</p>
<p>Let’s say Jina Chocolate cake is very popular and public. Can you make and sell Jina Chocolate cake mix without heading into lawsuit?</p>
<p>Update:
My problem is with pottery glaze recipe like this one: 
<a href="https://glazy.org/recipes/56085" rel="nofollow noreferrer">https://glazy.org/recipes/56085</a></p>
<p>In those case it’s mix of chemical powder to achieve a glass coating with the desired color and effects.</p>
<p>I didn’t think that the kind of recipe would have an effect but it seem there is a special case for cooking recipes.</p>

<p><a href="https://www.copyright.gov/circs/circ33.pdf" rel="nofollow noreferrer">Recipes are not subject to copyright</a> although the particular manner in which the are expressed (e.g. on a printed page) is protected by copyright, under U.S. copyright law.</p>
<p>This is not because they are &quot;public&quot; and is instead because the scope of copyright protection established under old case law that remains good law in the U.S., does not protect most kinds of creations historically made by women in the home. In the same vein, <a href="https://en.wikipedia.org/wiki/Fashion_design_copyright" rel="nofollow noreferrer">clothing designs</a>, as a general rule, are not subject to copyright protection under U.S. law (&quot;as of 2016 [in] most countries (including the United States and the United Kingdom) fashion design[s] . . . are . . .  excluded from protection by copyright laws&quot;).</p>
<p>For example, <a href="https://www.wipo.int/wipo_magazine/en/2018/02/article_0001.html" rel="nofollow noreferrer">this source explains</a>:</p>
<blockquote>
<p>For much of modern history, and certainly in the early days of legal
grants in IP, the formal roles from which IP might arise were closed
to women. The creative occupations of artist, engineer, writer,
scientist and musician were dominated by men, if not exclusive to men.
At that time, social convention frowned on female activity in such
professions. IP law, as it developed, followed such social
prohibitions. For example, as noted by <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/cajwol7&amp;div=11&amp;id=&amp;page=" rel="nofollow noreferrer">Professor Shelly Wright</a>,
copyright historically encompassed the “fine arts” such as sculpture,
painting, literature and music – fields that were male dominated if
not exclusively masculine, with “crafts” such as needlework, knitting,
quilting and other “domestic” fiber arts until relatively recently
excluded from the canon of copyrightable subject matter.</p>
</blockquote>
<p><em>See also, e.g.,</em> Ann Bartow, &quot;<a href="https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1267&amp;context=jgspl" rel="nofollow noreferrer">Fair Use And The Fairer Sex: Gender, Feminism, and Copyright Law</a>&quot;, 14(3) Journal of Gender, Social Policy &amp; the Law 551 (2006).</p>
<p>It is possible that the a stylized individual name for a recipe, as opposed to a generic name for the same recipe, at a minimum under common law trademark rights even if it is not protected by a federal or state trademark registration, may have trademark protection even though it is not protected by copyright.</p>

<p>It is not the case that all recopies are unprotected by copyright under US law. A simple list of ingredients is not protected, nor are basic instructions for preparing the dish. But a more creatively expressed set of instructions, that includes explanations of why steps are taken, or problems to avoid, or general commentary, may well be protected, as may images such as photographs.</p>
<p>Lists of simple instructions to carry out any process ought to follow the same rule, as a consequence of the idea/expression dichotomy.</p>
<p><em>US Copyright  Office Circular 33: Works Not Protected by Copyright</em> states, on page 2:</p>
<blockquote>
<p><em><strong>Recipes</strong></em></p>
<p>A recipe is a statement of the ingredients and procedure required for making a dish of food. A mere listing of ingredients or contents, or a simple set of directions, is uncopyrightable. As a result, the Office cannot register recipes consisting of a set of ingredients and a process for preparing a dish. In contrast, a recipe that creatively explains or depicts how or why to perform a particular activity may be copyrightable. A registration for a recipe may cover the written description or explanation of a process that appears in the work, as well as any photographs or illustrations that are owned by the applicant. However, the registration will not cover the list of ingredients that appear in each recipe,
the underlying process for making the dish, or the resulting dish itself. The registration will also not cover the activities described in the work that are procedures, processes, or methods of operation,
which are not subject to copyright protection.</p>
<p><em>Examples</em>:</p>
<p>Jules Kinder submits an application to register a cookbook, <em>Pie in the Sky</em>. In the “Author Created” field of the application, Kinder asserts a claim in “text, photographs, and compilation of ingredients.” Each recipe contains a list of ingredients, instructions for making a pie, and a
photograph of the finished product. The claim in a “compilation of ingredients” will not be
accepted because there is no copyrightable authorship in a mere listing of ingredients. Since
this claim is not acceptable, the Office may communicate with Jules Kinder to limit the extent
of the registration to the text and photographs only.</p>
<p>Paulina Neumann submits an application to register a recipe for caesar salad dressing. In the
“Author Created” field, Neumann asserts a claim in “text.” The work consists of a list of eleven
ingredients with the following instructions: “(1) puree anchovies, garlic, Dijon, egg yolks; (2)
drizzle oil in gradually to emulsify; (3) add lemon, parmesan cheese, salt, pepper, Worcestershire and tabasco sauce.” The Office will refuse registration for this work, because the list of
ingredients is uncopyrightable, and the instructional text contains an insufficient amount of creative authorship.</p>
</blockquote>
<p>That cooking is an activity traditionally carried out by women and not men (although this is not true for high-end  cooking, and was not when the US Constitution was written) may have influenced policy and the wording or interpretation of the law.  But the current rule is at least <strong>said</strong> to be derived from the idea/expression dichotomy, the merger doctrine, and the requirement of originality for a work to be protected by copyright, as per the <em>Feist v Rural</em> decision.</p>

<p>Using a written work (the recipe) to create a product (whether the product will be sold or is for personal use) does not violate whatever copyright protection applies to the written work. There might be a patent that prevents creating the product, but that is unlikely for a recipe found on a website. In the US patents expire after 20 years, so if it's an old recipe, the chances of patent protection are very low.</p>
<p>The next question is how do you get the recipe in front of the cook so the cook can follow it? Before you make a copy of the recipe, you will have to look at the terms and conditions of the website to see if making the copy violates copyright. If it would, you would have to figure out a way to rewrite the recipe so the cook gets the necessary information, but it is expressed in a way that doesn't violate copyright.</p>
<p>Whether you can sell the product under the name given in the recipe is a trademark question, as mentioned in other answers.</p>

copyright