Episode 369: Two Ways to Protect a Recipe – What Bloggers should Know about IP Protection and Internet Law with Maria Spear Ollis

EBT369 – Maria Spear Ollis (1)

Maria Spear Ollis: Hi, this is Maria Spear Ollis from Spear IP, and you are listening to the Eat Blog Talk podcast. 

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Maria Spear Ollis: Hello food bloggers. Welcome to Eat Blog Talk, the podcast for food bloggers looking for the value and confidence that will move the needle forward in their businesses. This episode is sponsored by RankIQ. I am your host, Megan Porta, and you are listening to episode number 369. I have Maria Spear Ollis with me today. She is going to talk to us about two ways to protect a recipe. Maria Spear Ollis is an attorney bringing peace of mind to content creators when it comes to IP protection, contracts, and internet law. Her goal is to help her clients before it hits the fans so that if setbacks happen, they’ll bounce back faster. When Maria isn’t hammering away at a copyright issue or recording a YouTube video, you can catch her dancing to Motown hits with her two sons, cooking with her husband, learning about herbs and medicinal plants, or hollering at her dog to get down from the couch.

Megan Porta: Your life sounds very similar to mine, Maria. That’s so funny. Before I prompt you for your fun fact, how old are your boys? 

Maria Spear Ollis: My boys are one and four. 

Megan Porta: Oh my goodness. So much fun. Oh. My boys are the same age apart in years, so they’re three years apart as well, and it’s been so fun. Mine are now 12 and 15, so they’re a little older. 

Maria Spear Ollis: Oh, wow.

Megan Porta: Oh, it’s such a journey You’re gonna love as they grow and get older. Okay, so we wanna hear what your fun fact is before we dig into protecting a recipe. 

Maria Spear Ollis: My fun fact is that I have been around food my whole life. My parents are entrepreneurs and my grandparents before them and my great-grandfather before them. My family’s Greek American and so food has been a gigantic part of my life. 

Megan Porta: Oh good. So this kind of ties in with your background in law, but also protection of recipes. So that’s really cool. Do you want to talk a little bit more about how your story has evolved with food and becoming an attorney and all of that before we get into the specifics?

Maria Spear Ollis: Sure. I’d love to tell my story. So I gave you a little hint of my background and my parents have a coffee roasting and wine distribution business. Of course, I worked with restaurants, and so I’ve been in that world my whole life. Vacations are planned around food. Everything is planned around food. It’s the best stuff of life, right? 

Megan Porta: Yes. 

Maria Spear Ollis: So it’s funny because my husband obviously married into my family and he has now adopted the habit when we’re on vacation, which is when we’re eating one meal, we’re talking about the next meal and where we’re going to go and what we’re gonna have. So food has been a big part of my life, and music has also been a big part of my life. I started my technical training as a voice performance major in college, and I wanted to stay in that creative sphere, but in more of a business context. That’s what took me to law school. But fast forward till now, I’ve had my practice for seven years. I’ve been practicing law for 12 years and more than the music side, I just love the creative side. Especially businesses online and as I’m sure you can guess, especially those who operate in the food and wellness spaces because, because I just love it so much. 

Megan Porta: Yeah. I love how all of your interests tie into each other, which I think is rare, but awesome. Then also I was gonna ask you, do you have a podcast? Because you have the most amazing speaking voice ever. If you don’t, you should. 

Maria Spear Ollis: Thank you. I’m actually in the process of launching a podcast at a launch in January. 

Megan Porta: Oh my gosh. Awesome. What is it going to be about?

Maria Spear Ollis: It’s going to be about having a business as a woman and dialing into the little habits that actually fuel the productivity and the growth of your business. Basically tending to your mind and your body as a way to grow your business. 

Megan Porta: Oh, I will tune into that for sure. That’s amazing. Do you have a name for it yet or is that to come? 

Maria Spear Ollis: I don’t. I was just actually, I had my lunch and I took my little 10 minute walk and kept brainstorming different names and I haven’t landed on the perfect name yet.

Megan Porta: You’ll know when it comes, it’ll hit you and you’ll be like, there it is. 

Maria Spear Ollis: Eat Blog Talk is a great name.

Megan Porta: Oh yeah, that is one that I like, it came to me. My best ideas come to me when I’m half asleep. I don’t know if that’s weird or not. But, I’ll be in the early morning hours or right before I fall asleep and I just get these great ideas and that happened. I was like, I knew I wanted to eat in the name and it just came, like I could see it. I could see the logo, which is strange, and I knew it. I was like, yep, there it is. I’m running with that. All right, so let’s talk about recipes because we’re talking to food bloggers. So we create lots and lots of recipes and we don’t give much thought, I don’t know how we can protect these or what we should be thinking through. So you have two ways to protect a recipe. So we would love to hear you talk through those. 

Maria Spear Ollis: So there are two different ways, and it comes down to the context. So if you are wanting to protect a recipe in the sense that you’ve shared something online already, in other words, it’s not really a secret, you are a blogger. You’re either posting a video or a blog post or something with the intent that someone else will make this, then it’s a little bit different than if you have a secret recipe and maybe you, what is it, like the Neiman Marcus chocolate chip cookie recipe or the KFC herbs and spices blend. Those are true secrets. Although people might post, not copycat, but imitation recipes. But if you’re trying to protect a recipe that’s out there, it’s not really a secret. Then what it comes down to is, not the fact that you are creating the ultimate oatmeal chocolate chip cookie recipe or your favorite plant-based pesto recipe. It is the details of what makes it unique to you. Because you might go on Pinterest and search for oatmeal chocolate chip cookies and goodness. The number of oatmeal chocolate chip cookie recipes is overwhelming. So it’s not that you could stop someone necessarily from creating their own version of an oatmeal chocolate chip cookie recipe, it’s the fact your brand name might be tied to your version. Your photos are certainly original to you. So you know, taking as many photos as you can, putting them in your blog post, editing your video in a way that has your personality, your brand style. Then the last thing to remember is, and pop culture people get annoyed with all of the storytelling that can go into a blog post. That’s actually what’s truly protectable about your recipe? It’s not the pure instructions. The Copyright Office has said, we don’t really care about just basic instructions. That’s not quote unquote creative enough to protect a recipe. But when you go into the details of where it came from, where you’re sourcing your ingredients, the little trick that you developed when you are creating this culinary masterpiece, all of those little unique things, those are the protectable parts of your recipe. 

Megan Porta: Oh, that’s so interesting. We get so much grief for going into the story or why you choose ingredients or whatever it is about the recipe, but that’s actually protecting us. 

Maria Spear Ollis: Yes. 

Megan Porta: Oh my gosh. That’s another reason and another counter that we can use when people give us a hard time about it. I’m covering my butt here. 

Maria Spear Ollis: Yes. 

Megan Porta: So back off. So can I ask you about ingredient lists? Because I know, I’ve heard that too. It’s not copywriting if you have, not infringing any copyright, if you just list the same ingredients and have similar instructions because you use the example of oatmeal cookies and there’s only so many ways you can make that. So obviously we’re gonna have most of those same ingredients and that’s fine. 

Maria Spear Ollis: Yes, that is fine. Ingredient lists are specifically something that are not protectable under US Copyright law. Because like you said, there are only so many ways, so many different combinations, so many different amounts of the ingredients that can go into something. So an ingredient list is considered too factual to be copyrightable.

Megan Porta: Same with instructions. We all word things I feel like a little bit differently, but what if it is worded exactly the same from one recipe post to another one. Different authors. 

Maria Spear Ollis: Yes. Different authors. I hesitate to say yes, go ahead and use the exact same instructions, because remember that uniqueness, that, that storytelling aspect to it, I wouldn’t want someone to go out there and copy someone’s story to the extent that’s woven into the instructions. But if we’re talking about peer instructions, crack the egg and scramble it, those pure instructions again, are too factual to be copyright protected. 

Megan Porta: Okay. So interesting. Is there anything else about that before we move on to your second way to a protected recipe? 

Maria Spear Ollis: I don’t think so. I think that, again, something to keep in mind is the more unique you can make the recipe to you, the stronger your protection.

Megan Porta: Okay. That includes the post and everything, like you were saying. The video and the photo and the stories and all of that. Cool. I like that, and I think everyone listening will like that as well. 

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Megan Porta: Okay. What is your second way to protect a recipe? 

Maria Spear Ollis: The second way to protect a recipe is in that secret sense. So people might have heard the term trade secret, and that is purely to protect a secret recipe. In order to have protection under a trade secret. It has to be secret. So this may or may not apply to in the food blogger sense, because again, you’re putting it out there for someone to recreate. But to the extent that you know, one day you go out and create some kind of prepared food product or a seasoning blend or something that you are releasing under your brand, if there are aspects to that are incredibly unique that you wanna protect, then remember to use confidentiality agreement or NDA or something that keeps the secrecy of that special sauce a secret. 

Megan Porta: I do know quite a few food bloggers who do create spice blends or sauces or oils or things like that. So just really doing the background investigation to make sure that nobody finds out what goes into it, is what you’re saying?

Maria Spear Ollis: Yes. To the extent that you’re working with a manufacturer or anyone is helping you in any way. You wanna make sure that there’s that chain of contracts, for lack of a better way to put it, to make sure that these people are all bound to keep that recipe secret.

Megan Porta: Good to know. I don’t plan on going into that space, but I know a lot of my listeners do. That’s part of their plan, so I think it’s better to think about that on the front end than to get to the point where you’re like, oh, no, I didn’t think about that and having to backtrack. I have a question for you about copycat recipes. So I know a lot of us do, what’s an example like PF Chang’s Mongolian beef. I have one of those on my blog, and I didn’t actually go get the secret recipe from PF Changs, but I made Mongolian beef and tweaked it so that it tastes very similar to theirs, but maybe a little healthier version. Are we putting ourselves in trouble at all with stuff like that? 

Maria Spear Ollis: So it’s almost like fan art. In the 2D art sense where you see people who have run off with Harry Potter art or Game of Thrones art. I don’t know why this is all fantasy. It happens a lot in the art sense and technically can they do it? Technically under copyright law. That’s that story. Those characters belong to someone. But it’s almost like, are you going to bite the hand that feeds you in enforcing your copyright? Similarly here, I mean there’s a little bit of, I have a little bit of trepidation just because PF Changs is a registered trademark, and if you are putting a recipe out there using their name, even though it might be very clear that it’s a copycat recipe, I have a little trepidation. It’s not likely that they’ll go after you, but it’s possible.

Megan Porta: Okay, so I, early on in my blogging career, I’ve been a food blogger for 12 years now. Really early on, like I would say a year or two in, I received an email from Mars Corporation and they were like, hey, we noticed you have a, I believe it was like snicker, what was it? It was a Snickers fudge recipe on my blog. Is that right? Mars and Snickers? Or it’s my Twix. It was one of the two. I have a Twix brownie recipe. I have Snickers fudge. So it was one of those, but they were like, you need to take this down within so many weeks, or we will pursue this. It scared the crap outta me because I am like this small little blogger. Oh my gosh, I didn’t know that was an issue. So I immediately took it down and then I called it, I don’t know, called it Candy Bar Fudge or something like that. But then years later, I noticed that a ton of food bloggers are using Snickers Fudge, Twix brownies. So I don’t know how to handle that. If they just ignored the emails, if they didn’t get emails. If Mars Corporation was being selective with reaching out to just a select number of bloggers, but it’s really a gray area that you don’t really wanna mess with, right? It’s scary. 

Maria Spear Ollis: Yeah. It could be, a few years later they threw up their hands and they thought this could be a full-time job, looking through Pinterest and Google results for people who are using Twix or whatever it is. Who knows what their true motivation was. If it changed. But I agree. What they’re looking for is there some kind of, with this recipe that’s been posted, is there some kind of insinuation that we are sponsoring or affiliated with this post.

Megan Porta: There it is. That’s probably what it is. There’s some just some insinuation that I would be working with Mars Corporation to create this copycat recipe or whatever, but yeah, like how do you discern that? Because there are so many variations of this fudge, Snickers Fudge or Snickers, whatever. Copycat Snickers bars or whatever. I’m sure that’s out there too. Copycat recipes are very trendy and it’s something that you can get a lot of traffic from because they’re so specific. I know that there are entire food blogs dedicated to copycat recipes, so I wonder, I’m sure they’ve experienced this on some level. I would have to believe that. 

Maria Spear Ollis: I would think so. Especially if the entire platform is based on copycat recipes. 

Megan Porta: Is there anything else that we should be aware of when we’re thinking about protecting our recipes, creating recipe posts, anything along those lines? 

Maria Spear Ollis: I think since we’re talking about using someone else’s recipe, the other thing to be cautious of is, of course if it’s a restaurant type of recipe, but also if it’s not. If it’s Ina Garten’s recipe, whatever it is. Being careful how you’re using someone’s name. Because again, is it suggesting that you somehow have her stamp of approval? That she’s affiliated with you, that she sponsored something? So keeping that part in mind as well.

Megan Porta: So how would you recommend doing that? Would you reach out to the person first and get permission, or would you say like pasta bake from, I don’t know, like a variation of Ina Garten’s pasta bake, or how would you word that? . 

Maria Spear Ollis: I think getting permission is always the most risk averse and the safest way to go. I know not everybody wants to do that, but if you’re looking for a little bit of security, then that’s the safest way to go. If you’re talking about a cook the book situation, the same rules apply. It’s just that I would be sure not to use any of the images from the book, any direct clips or excerpts from the book.

Megan Porta: Yeah. Just putting your own spin on it, making it yours in some unique way. 

Maria Spear Ollis: Maybe linking back to where you can purchase the book. Throwing a bone so that if someone were to come back and say, Hey, we don’t like this, you can say, I’m trying to support you. I’m trying to lead people to make a purchase. Backing up your claim. 

Megan Porta: I think that is a recommendation from a lot of SEO experts in our space too. They do recommend, if you mention my example earlier, PF Chang’s, link to their website so that people know that like us, we love PF Changs, right? We’re supporting them. We wanna link to their content. So it’s just like a statement. I’m not trying to steal this. I’m not a representative. I am just supporting their delicious food. Something like that. Yeah. Is there anything else we should know, Maria, before we start saying goodbye? 

Maria Spear Ollis: Oh gosh. I think that something to think about when you, especially when you’re talking about being a food blogger and having your platform is putting little protections in place on your website. I have some resources on my own website if anyone is interested. Having any disclaimers that you might require on your website. Having a privacy policy, little things like that. 

Megan Porta: Okay. I think all of those are things that we’re pretty good at. I think the ad networks that a lot of us are a part of, recommend doing, and some of them require, like you need to have a privacy policy and all of that. The one thing that I know we’ve had issues with, like collectively as food bloggers, is images. People taking images doesn’t necessarily apply to recipes, but just more blog posts and protection there. Do you have any insights on image protection? 

Maria Spear Ollis: My best advice in terms of image protection, because I can imagine that a lot of your listeners have just a ton of images. So registering your images with a copyright office. At one point, it’s like, how do I decide what’s the most important? My answer to that is it to the extent you do content planning and you look over the past month or the last quarter and see what has done the best, what’s had the most Pinterest traffic, what’s been shared the most. That’s where you start. You go back and see what has been shared the most, because while it’s great to go viral and great to have all that exposure, that also makes that content more of a target. So looking back on the most popular content and considering registering those images with the copyright office. The copyright office has a lot of really great tutorials that they mean for them to be user friendly. So you can literally go and register those images yourself.

Megan Porta: So when you register an image, you have to do it one by one. You can’t just do every image on pipandebby.com. You’ve got to do it just individually. 

Maria Spear Ollis: You don’t have to do it individually. There is a limit, and I don’t remember what it is off the top of my head. If it’s 50 images or something like that, but you can do a group of photos together.

Megan Porta: Okay. That’s good to know. All right. I don’t know, unless you have something else about recipes or blog protection, we can start wrapping up. This was super helpful. I don’t think we’ve ever covered the specific topic within recipe protection before. So I think this will be really valuable.

Maria Spear Ollis: Great. Good. 

Megan Porta: Thank you for joining me and I’m really excited to listen to your podcast when it comes out. Will you send me an email and let me know it’s out? 

Maria Spear Ollis: Yeah, sure. I will. 

Megan Porta: Oh, awesome. I think a lot of my listeners would align with what your message is going to be. Do you have a favorite quote or words of inspiration to leave us with Maria?

Maria Spear Ollis: My favorite go-to is, and I’m going to paraphrase, but basically that life isn’t happening to you. It’s happening for you. Everything from an unfortunate bump in the road and I attribute this to Tony Robbins, who’s like the king of yes self-help and self-development. But that’s my go-to. That life is happening for you, not to you.

Megan Porta: I feel like when you can really let that sink in and understand it, everything changes. Your whole perspective on life completely changes. Yeah, I love that quote. 

Maria Spear Ollis: Absolutely. 

Megan Porta: Awesome. We’ll put together a show notes page for you, Maria. If anyone wants to go look at those, you can go to eatblogtalk.com/spearip. Tell everyone again where they can find you online and social media, et cetera, Maria. 

Maria Spear Ollis: Yeah, you can find me on Instagram mostly at Speariplaw. 

Megan Porta: Awesome. Thank you again for being here and thank you for listening today, food bloggers. I will see you in the next episode.

Outro: Thank you so much for listening to this episode of Eat Blog Talk. Please share this episode with a friend who would benefit from tuning in. I will see you next time.