Intellectual Property

Why a recipe is hard to own

Copyright cannot stop anyone from cooking your recipe. The Copyright Office will not register a list of ingredients or a simple set of directions (opens in a new tab), and a cookbook’s copyright covers its writing, not the cooking. Every item you photograph for this activity raises the question the recipe does: which body of law protects it, and on what terms?

A bakery that wants to own its best recipe has to look past copyright. It could seek a patent if its method is new and not obvious, but the patent would make the method public and run out twenty years after filing. Or it could keep the recipe a trade secret, shown only to employees bound by confidentiality agreements and protected for as long as the secret holds. The name on the bakery’s boxes is a fourth kind of property altogether: a trademark.

Copyright, patent, trade secret, and trademark are the four main kinds of intellectual property, and a business chooses among them asset by asset. Three of them can leave a public record, so you will photograph three protected items at home and confirm each one in a federal database. Then you take up the newest question in the field: who owns an image a machine makes?

How each protection begins and ends

Copyright asks for nothing but the work itself. It protects an original work the moment the work is fixed in a tangible medium: a song once it is recorded on a phone, a story once it is saved. The statute, 17 U.S.C. § 102 (opens in a new tab), also draws the line the recipe ran into: copyright reaches expression, never the idea, process, or method behind it. No filing creates the right, but filing still matters. The owner of a U.S. work generally must register it before suing for infringement, and when the owner registers affects what a lawsuit can recover, as the next section shows. A work an employee creates on the job generally belongs to the employer, and its copyright runs 95 years from publication or 120 years from creation, whichever ends first.

A trademark begins with use rather than creation. A business gains rights in a name or logo by using it to sell goods or services, and those rights last as long as the use continues. Registering the mark federally extends those rights across the country and lets the owner use the ® symbol.

A patent is the only one of the four that must be granted before it exists. The Patent and Trademark Office examines each application and issues a patent only for an invention that is new, useful, and not obvious. The kinds of invention that qualify are listed in 35 U.S.C. § 101 (opens in a new tab). The bargain is disclosure. The patent must describe the invention clearly enough that others in the field could make and use it. In exchange, the owner can stop anyone else from making, using, or selling it. The term is twenty years from filing for a utility patent and fifteen years from grant for a design patent. After that, anyone may use the invention.

A trade secret needs no filing at all, and it has no fixed term. Florida protects trade secrets under its version of the Uniform Trade Secrets Act, chapter 688, Florida Statutes (opens in a new tab). A formula, a method, or a customer list qualifies if it has value because others do not know it and cannot readily work it out by proper means. The owner must also make reasonable efforts to keep it secret, and those efforts look ordinary: confidentiality agreements, locked files, and access limited to the people who need it. Cornell’s Wex entry on trade secret (opens in a new tab) explains how the protection is lost. Once the secret becomes generally known, the protection is gone. A competitor who reaches the same secret by reverse engineering or by independent work has done nothing wrong.

That is the bakery’s choice, and every business with an invention faces some version of it. A secret can last forever but can be lost in a day; a patent lasts twenty years but survives being known. A process hidden inside a factory can stay secret for decades. A gadget sold in stores cannot, because any buyer can take it apart, so its maker has more reason to patent it.

When copying is fair, and when it costs

The best-known limit on copyright is fair use, a defense that permits some copying without permission. The statute, 17 U.S.C. § 107 (opens in a new tab), names purposes such as criticism, comment, news reporting, and teaching. It then lists four factors, from the purpose of the use to its effect on the market for the original. The Supreme Court has said the statute calls for “case-by-case analysis,” and two of its decisions show what that means for a business.

In Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) (opens in a new tab), the rap group 2 Live Crew had sold nearly 250,000 copies of a parody of Roy Orbison’s “Oh, Pretty Woman.” A federal appeals court treated the parody as presumptively unfair because it was commercial. The Supreme Court reversed. A parody’s commercial character is only one element to weigh, the Court held, and it sent the case back to be decided under the right standard.

The second decision cut the other way. In 1981 Lynn Goldsmith photographed the musician Prince, and Andy Warhol later made a series of portraits from the photograph. In 2016 the Andy Warhol Foundation licensed one of those portraits to Condé Nast for a magazine cover, for $10,000. In Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023) (opens in a new tab), the Court held that the first factor favored Goldsmith. The photograph and the licensed portrait served substantially the same purpose, illustrating magazine stories about Prince, and the license was commercial. Warhol’s new expression did not change that. The Court said nothing about whether making the series was fair; it judged the license. The same copying, it explained, can be fair for one purpose and unfair for another. For a business, that makes fair use a risk to weigh before copying, because a court will judge the particular use only after the fact.

Infringement is the wrong that copyright, patent, and trademark law guard against; trade secret law calls its version misappropriation. Depending on the right, a court can order the infringer to stop, order infringing goods seized or destroyed, and award money. The money is where registration and notice come back into the story.

Instead of proving its losses, a copyright owner can elect statutory damages under 17 U.S.C. § 504 (opens in a new tab): $750 to $30,000 per work, or up to $150,000 per work for willful infringement. But under 17 U.S.C. § 412 (opens in a new tab), statutory damages and attorney’s fees are unavailable for infringement that began before registration, unless a published work was registered within three months of publication. An owner who registers late can still win the case. The recovery shrinks to the losses and profits the owner can prove, which for one photograph may be small.

The symbols in your scavenger hunt do the same kind of work. Under 15 U.S.C. § 1111 (opens in a new tab), an owner who never gives notice of registration, usually with the ®, cannot recover profits or damages from an infringer who had no actual notice of it. Under 35 U.S.C. § 287 (opens in a new tab), a patent owner who does not mark products with the number collects damages only for infringement after the infringer is notified, and filing suit counts as notice. The ® on a shampoo bottle and the number stamped on a charger are not decoration. They protect the owner’s right to be paid.

The machine question

Copyright is for people. The rule of human authorship keeps machines from being authors. In Thaler v. Perlmutter, 130 F.4th 1039 (D.C. Cir. 2025) (opens in a new tab), the D.C. Circuit held that the Copyright Act itself requires a human author. The rule does not keep AI out of copyrighted work. It keeps the machine’s contribution out of the copyright.

The Copyright Office’s decision on Zarya of the Dawn (opens in a new tab) shows where the line falls. Kristina Kashtanova registered an eighteen-page comic book whose images came from Midjourney. After the Office learned how the images were made, it cancelled the registration and issued a narrower one. The text belonged to Kashtanova, and so did the way the text and images were selected and arranged. The images themselves were not the product of human authorship, and a small edit to one character’s lips was too minor to change that.

The Office’s Review Board applied the same line to Théâtre D’opéra Spatial (opens in a new tab), the image that won the 2022 Colorado State Fair’s fine art competition. Jason Allen had entered prompts into Midjourney at least 624 times to reach a first version, then reworked it in Photoshop. The Office was willing to register Allen’s Photoshop edits but required the Midjourney material to be excluded, and when Allen refused, the Board upheld the refusal to register. More than six hundred prompts had not made Allen the author of what Midjourney produced.

The Office stated the general rule in its 2025 report on copyrightability (opens in a new tab): with today’s technology, prompts alone do not give a user enough control over the output to count as its author. In the Office’s view, a prompt works like instructions to a commissioned artist. It says what to depict, and the machine decides how. The Office has said it will keep watching the technology and the law and revisit these conclusions if needed, and courts are not bound to adopt its view.

Now apply the rule to the image you make in Part 3. If you type a theme and save what comes back, you have written a prompt, and the image has no human author. If you rework it with changes creative enough to count on their own, or pair it with your own writing and arrange the pieces, those contributions can be yours. The Office’s registration guidance (opens in a new tab) asks applicants to claim only those parts and to exclude AI material that is more than trivial. What the machine produced by itself stays outside anyone’s copyright.

What the records will show

The bakery’s recipe will never turn up in a federal database, and that is the point of keeping it secret. The other three protections can leave records, and a few habits make those records easier to find. Treat the ® as a claim of federal registration and test it in the USPTO Trademark Search (opens in a new tab). Follow a patent number into Patent Public Search or Google Patents even if the patent has run out, because an expired patent keeps its record. Remember that a © notice says nothing about registration. If a book has no entry in the Copyright Office public records (opens in a new tab), try one published since 1978 by a major publisher. When a search screen stops making sense, bring it to the Database Navigator. Your photos, screenshots, and image all go into a single post on the Intellectual Property activity page. Before you post the image, decide which part of it, if any, is yours.