An Intellectual Property Attorney’s Thoughts on Copyright Law, the Internet and the Cooks Source Magazine Uproar

What would you do, as an author, when you discover that a publisher has published a website article by you without your permission, and then informs you that you should be thankful to the magazine?

If you’re Monica Gaudio, you post about it on your blog and become “Internet famous” overnight. Ms. Gaudio learned earlier last week that her 5-year-old article about apple pie was published in a magazine called Cooks Source Magazine. The problem was that she had not submitted her work to the New England publication. Ms. Gaudio contacted the editor and asked for an apology and a $130 donation to a well-known journalism school.

Instead, Ms. Gaudio received a combative email from the editor assuring her that Cooks Source was aware of copyright law, but since the Internet is considered public domain, Ms. Gaudio should be happy that the publication didn’t just lift the whole article and put someone else’s name on it. The editor then concluded that Ms. Gaudio should be thankful to the magazine for printing the article, and snidely suggested that she should actually pay the publication for the time it put into the rewrites.

Ms. Gaudio posted the reply here on her blog Wednesday night and the resulting outcry has been tremendous from Gawker to the LA Times food blog to Facebook bullying to Tweets from Neil Guimon. And most recently, additional accounts have surfaced of other alleged infractions by Cook Source. The How Publishing Works blog has a great overview here that covers the publishing side of this controversy. But this controversy raises a number of legal issues regarding intellectual property copyright law.

First. Copyrights cover any work once that work is “fixed” in a tangible medium. Blog posts, and the Internet in general, are tangible mediums according to intellectual property law. That means an article or anything that’s creatively made – painting, computer code, book – doesn’t have to have a copyright symbol
on it to be protected (although it helps).

Authors and artists also don’t have to register their work for copyright protection, but registration does have significant advantages including giving the author or artist the ability to bring suit, seek damages and even enhanced damages for particularly deplorable behavior.

Second, copyrights protect expressions, not ideas or facts. In this instance, Cooks Source has been accused of plagiarizing recipes. Now, this is an over-simplification, but if the recipe for apple pie was simply “apples + pie shell = apple pie,” any protection would be rather limited, if at all. You likely can’t copyright this recipe because, like 1 + 2 = 3, it’s a fact (an over-simplified fact, but a fact none the less).

But if you were to write a recipe with a lot more expression, that would be more protectable, because it is no longer just facts, it includes artistic expression as well.  Additionally, the selection and arrangement of facts (like a number of recipes) can also be protected by copyright. So, a book containing a hundred recipes for apple pies as made by Nebraska farmers, which includes a picture of each apple pie sitting on the windowsill, would arguably be subject to more protection.

As can be seen, even a recipe for apple pie is protectable if it includes artistic expression, and selection and arrangement beyond just a simple listing of facts.

Third. What makes this situation so intriguing, to the point of going viral, is the editor’s vindictive response. The response arguably is an “admission of guilt” (the editor admitted to copying). Additionally, it is unapologetic. From an attorney’s point of view, Cooks Source’s response is what we would refer to as “a bad fact.” Admissions of copying are rare in copyright cases, and while the entertainment industry makes it appear that “smoking guns” appear in every case, they really don’t. Especially rare is a “smoking gun” that can be used to portray the alleged infringing party as a bad guy, rather than a company that just made a mistake.

In this response, this letter can be utilized to paint Cooks Source as a knowing copyright infringer, which could lead to a finding of “willful infringement.” If found, this could lead to enhanced damages. On the other hand, if the editor responded, “Oops!  We made a mistake and will look into the matter so it does not happen again,” with or without compensation to the author, Cooks Source would be in a much better position, and certainly, would not have become near the household name it is now because of the Internet.

Ultimately, the best take away an author, artist or even publisher can take from this situation is to treat everything you publish on the Internet with decorum because once it’s out there, you lose control of it. Here at Simmons law firm, it’s something we tell our clients on a regular basis.

Write every email, blog or letter like it could someday be used against you in court. Before you hit send, re-read the document and ask yourself, “If I’m on the witness stand, is this something I want a lawyer to ask me questions about in front of a jury?” This may seem extreme, but in this age when a quick email response on Tuesday can become Wednesday’s headline, it is not bad advice.

It’s a lesson Cooks Source has learned the hard way.