In late August, the U.S. District Court for The District of Puerto Rico dismissed an appeal on a civil suit filed there. The dispute, between Norberto Colón Lorenzana and South American Restaurant Corp., stemmed from a fried-chicken sandwich. “Pechu Sandwich” hit the market in ‘91; but, Church’s Chicken, the franchised restaurant at which Colon first cooked up the snack, didn’t move to register the “Pechu Sandwich” as a trademark, until ‘99. Colón--who, as far as the suit is concerned, undisputedly “invented” this rather ordinary sandwich, didn’t file his claim until 2014. He wanted a cut of the profit and claimed Church’s had wilfully exploited his idea.

Chief Judge Jeffrey R. Howard got cheeky with the language in the decision, writing re: “the meat of the matter” and of Colón “crying foul” [fowl]. Howard wrote that Colón failed on a fundamental level to provide evidence of SARCO’s malice. So in regard to the copyright claims, there was never a chance:

“Contrary to Colón's protests on appeal, the district court properly determined that a chicken sandwich is not eligible for copyright protection. This makes good sense; neither the recipe nor the name Pechu Sandwich fits any of the eligible categories and, therefore, protection under the Copyright Act is unwarranted. A recipe -- or any instructions -- listing the combination of chicken, lettuce, tomato, cheese, and mayonnaise on a bun to create a sandwich is quite plainly not a copyrightable work.”

In the time between Colón’s invention of the sandwich and his lawsuit, a legal precedent had already been set. A 1996 Seventh Circuit Court, in a case of publishing and republishing recipes, separated the recipe into two parts: functional and expressive. The functional aspect was the list of ingredients and the preparation itself. The expressive aspect was a matter of how creative elements wrapped around the functional elements.

Todd Wilbur wrote the book on the subject. Namely, he’s the author of ten volumes of Top Secret Recipes. The self-taught chef has made a career out of writing the recipes to hundreds of popular restaurant dishes and selling the recipes in book form. It’s a cookbook he began in 1993. In November, he will release the 11th installment in the series. He says it’s the way the recipes are written, and the way he gives credit to trademarks, that keeps him in the business of big-brand recipe generation.

“There are certain elements of a recipe, flowery language, the language that’s used in the instruction, the introduction to a recipe, that can be copyrighted,” he says by phone from his Las Vegas home. “But the formula… formulas are just not copyrightable by copyright law.”

Somewhat ironically, Wilbur says he’s had to litigate to protect the writings of his own recipes. As the recipes are of more public awareness, being from chain restaurants, some seem more brash to knock off his writing.

“I’m probably the most plagiarized cookbook author on the internet,” he says. “People have taken whole chunks of what I’ve done and duplicated that in a book. I’ve actually had to go to court though the conditions of the suit say I can’t talk about it.” And a February 2011 patent/trademark suit was indeed filed in California Central District Court on behalf of Wilbur and Top Secret Recipes Inc., against Ronald Duckett and Verity Associates, LLC.