Is #foodporn Damaging Chefs’ Intellectual Property? - Fordham Intellectual Property, Media & Entertainment Law Journal
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Is #foodporn Damaging Chefs’ Intellectual Property?

Is #foodporn Damaging Chefs’ Intellectual Property?

Love it or hate it, you can’t deny it … the “foodtography” trend appears here to stay.

According to Mashable, 52% of people take photos with their mobile phones at least once a month, while another 19% upload those photos online. And enough of those people practice foodtography to support the website Foodspotting, “a visual guide to good food and where to find it,” as well as Foodtography groups on Facebook and Flickr. Photo-sharing sites like Instagram and Pinterest further support the trend, and “food porn” even has its own Wikipedia page.

While experts articulate theories about why people like to share their foodtography – The new status symbol? The next best thing to eating together? – the latest question is whether doing so could be damaging the intellectual property of chefs around the world.

According to The Guardian, stories have been surfacing from the Michelin starred establishments of France indicating that chefs are fed up with patrons snapping and sharing photos of their dishes online. Gilles Goujon, of L’Auberge du vieux puits in the south of France, has stated that foodtography is not only poor etiquette but also takes away “a little bit of my intellectual property.” Another French chef has included a “no camera” policy on his menus for this very reason, while American chef R.J. Cooper made similar claims on Eater, stating, “They publish food photos without your consent, which is taking intellectual property away from the restaurant … If you’re publishing something in a public forum without written consent, that’s problematic.”

Replies Karl Bode on Techdirt: “So what you’re saying essentially is you ‘own’ the IP of laying several strips of beef just so and dribbling the entire concoction with sauce in a particular way?” Put this way, it does seem a bit nonsensical. And unfortunately for these chefs, reports The Guardian, “a plate of food is hard to substantiate as a protected ‘work,’ and while a chef may often be described as an artist, the profession does not enjoy such strong protection as those artists who wield paintbrushes. In any event, copyright belongs to those taking the photos rather than the chef or the restaurant owner.” (To date, no claims have been made by restaurants that their offerings have been devalued by social media exposure.) Additionally, even if the food could qualify as intellectual property, arguing infringement would be difficult as there certainly would be fair use defenses (for purposes of review or commentary, for example).

On the other hand, many chefs enthusiastically welcome such promotion, reports Inside Counsel. Says Justin Llewellyn, head chef at the award-winning Laguna Kitchen & Bar at Park Plaza Cardiff in Washington D.C., “Those chefs complaining about breaches to their intellectual property are fighting a losing battle. You can’t copyright food or food ideas, and even if you could I wouldn’t want to. Social networks are the new word of mouth. It’s the new advertising.”

Definitely food for thought …

Katelyn Patton

Kate Patton is a second-year law student at the Fordham University School of Law and a staff member of the Fordham Intellectual Property, Media & Entertainment Law Journal. Kate is also a Research & Conference Fellow for the Fordham Intellectual Property Institute, an Executive Board member of the Media & Entertainment Law Society and a Privacy Educator for Fordham's Center on Law and Information Policy. A graduate of Binghamton University, Kate's strong interest in media law stems from her love of magazines, legal internship at Time Inc. and previous work experience overseeing government affairs for the trade association of business media companies.