Unpublished recipes copyright law

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EddieD
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Unpublished recipes copyright law

Post by EddieD » Mon May 13, 2019 11:23 am

I am in possession of an unpublished handwritten recipe book/ notebook, the writer of which died in the late 1950s. The book contains multiple recipes with instructions, methods and related information. I am not a relative or decendant of the original writer.

I would like to use the book to form a publicised form of cookbook in dedication to the original writer. I would also like to include images showing the handwritten recipes from the original book. As I understand the recipes themselves are not covered by UK copyright law.

Due to wanting to use instuctions, quotes from, and images of the original handwritten unpublished book I am unsure as to where I stand regarding copyright law.

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AndyJ
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Re: Unpublished recipes copyright law

Post by AndyJ » Tue May 14, 2019 8:17 pm

Hi Eddie,

Because of the date that the author died (late 1950s), parts of the manuscript will still be protected by copyright. Therefore you are right to be cautious about what to do next. The only part of the recipes which would not be protected are factual information: the list and quantities of ingredients, the order of assembling or mixing them, and any cooking instructions (eg oven settings, cooking time). Anything descriptive within the recipe (eg the methodology) is likely to be protected as a work of literature. Thus if you take the list of ingredients and rewrite, using your own words, the actual method of preparing and cooking the dish, you would probably avoid any chance of infringement, but it sounds as if you want to retain the style of the original author's recipes, which makes this more tricky.

If you can locate an heir and can get permission to publish the work, that would give you the maximum scope to realise this project in the way you wish. However if it proves impossible to find an heir (the presumed owner of the copyright) then your next best move would be to apply for an orphan works licence. You will need to show that you have carried out a diligent search for the heir, but once the IPO staff are happy that this has been done, you should receive a licence to exploit the work for seven years (after which the licence can be renewed) without being liable for a claim from the copyright owner should they come forward during that time.

Pragmatically speaking it is quite possible that an heir may be unaware that they own this copyright which may not have been specifically mentioned in a will, if there was one. Indeed they may not even be aware of the existence of the manuscript. However if they can be located, getting permission to publish would be the correct thing to do. Clearly you would need to come to some agreement about whether the original author was to be credited as such or if your publication was to be marketed as being based on the earlier work. You would also need to work out any fees or royalties which the copyright owner might wish to receive.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

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Re: Unpublished recipes copyright law

Post by EddieD » Tue May 14, 2019 9:22 pm

Many thanks for your reply Andy which reaffirms what I thought would be the case.

You are right in that I wish to retain the style of the original author's recipes. The orginal author would be credited throughout and the publication marketed as being based on their earlier work. Photographs of the handwritten notes and recipes would also be used.

From looking into this it seems that due to the manuscript being unpublished it would fall under the 2039 rule? Whereby it will be under copyright until 2039. In comparison I see published work is for 70 years after the authors death, however this manuscript was not published. Although the author did publish other work.

I had begun work to locate an heir in preparation of this outcome, and seems like there could be living relatives. I suspect they will quite possibly be unaware of the manuscript, but as you say, obtaining permission would the the correct thing to do. Working out fees or royalties which the copyright owner might wish to receive would be a whole new area to research.

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Re: Unpublished recipes copyright law

Post by AndyJ » Wed May 15, 2019 9:35 am

Hi Eddie,

The rule* about unpublished works would apply if you were neither able to get permission from an heir nor able to secure an orphan works licence. Once the work has been published with permission ("an authorised publication") the parts of your book which included the original manuscript would be protected for the remainder of the period of 70 years from the end of the year in which the author died. For example if the author's death occurred in 1958, copyright would end on 31 December 2028, a decade earlier than would be the case with an unpublished work. Obviously your part of the book, such as a foreword and any illustrations, would continue to be protected for your lifetime plus (at the moment) a further seventy years.

Many have argued that the 2039 end date is grossly disproportionate as it applies to all unpublished works made before 1 August 1989, some of which could be over two hundred years old. This might include diaries and private papers belonging to famous people from the past, which could not lawfully be made available to the public. However the introduction of the orphan works licence, and a separate system which applies to institutions such as archives, museums and libraries, are deemed to offer a practical alternative solution for the public to gain the benefit from such works.

* Here is an explanation of how this rule came about. Before the 1988 Copyright Designs and Patents Act, unpublished works were treated separately from published works. In effect they were protected by copyright from the moment they were made, but the length of the term was not set until they were published with the authorisation of the author or his heir. For some works this effectively meant perpetual protection if the author had died without authorising publication and the heir couldn't be found. From the date that the 1988 Act came into force (1 August 1989) the lifetime plus X years rule was made the term for all works whether published or not. (Initially X was 50 years, but this was later extended to 70 years by the EU Term Directive).To deal with works which were already in existence on 31 July 1989, paragraph 12(4) of Schedule 1 to the Act states that all unpublished works made prior to commencement would continue to be protected for a further 50 years from the commencement date. So 1989 plus 50 years, leading to the 2039 date.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

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Re: Unpublished recipes copyright law

Post by EddieD » Thu May 16, 2019 11:46 am

Thank you for the further information Andy.

Having done initial searches it seems that an heir may not exist. I will search further into this and have requested certain records along side the usual online searches using Ancestry.co.uk etc. I looked into applying for an orphan works licence, and the diligent search requirements can all be met, however I was surprised to see that to obtain the licence it would essentially be a 10% upfront fee. For example, £10 sale price of the publication, 1000 print run, so £10,000 turnover, leading to a fee of £1000 excluding VAT. The issue here being not knowing the print run size required for the full 7 year licence duration. Do you know if you can extend the print run within the 7 year period?

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Re: Unpublished recipes copyright law

Post by AndyJ » Thu May 16, 2019 3:54 pm

Hi Eddie,

When you say there may not be an heir, do you mean that there was no will, or that there were absolutely no surviving relatives? If the author died intestate then there are rules for how the estate would be passed on. These rules vary slightly depending on where in the UK the author died, but the Intellectual Property rights would have followed this matrix. If there was no surviving family, however remote, then the author's estate would have passed to the Crown in bona vacantia and you would need to check with the Treasury Solicitor's Office about this.

However you mentioned that the author did publish other books, and so I would suggest that the first line of inqury should be with the publisher(s) of those books to see whether they are disbursing royalties to an heir or have any other relevant information. If the author was prolific or his/her books sold well, he/she may have been registered with a copyright collecting society, the most likely being ALCS so it's worth doing a check with them too.

And yes once you have an orphan works licence you can vary it to reflect a change of use or an increase in the print run etc. The IPO staff can tell you exactly how to arrange this once you have got through the initial application stage. Since the contingency fee they charge is based the actual market rate, this gives a guide as to what an heir might expect by way of an up front royalty for giving you permission to use the work.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

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Re: Unpublished recipes copyright law

Post by EddieD » Sun May 19, 2019 6:36 pm

At the moment I have found no surviving relatives from the authors only known child. However after further searching I have found information regarding possible siblings of the author having existed. Which opens up a whole new search. I have requested the authors will to gain more overall information. The authors parents and thus siblings are proving very difficult to trace due to limited record keeping in their native country at the time.

With regards to the authors published book I have found that the original publisher was bought out, then that publisher was also then bought out by another publisher who is still in existance so could be contacted.

Thank you for the further information regarding the orphan work licence.

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