No #FoodPorn Please - Fordham Intellectual Property, Media & Entertainment Law Journal
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No #FoodPorn Please

No #FoodPorn Please

You’re dining with friends, meals arrive, and quickly everyone takes out his or her phone to snap a picture of the chef’s creation before digging in. We all know this scene, as photographing our meals and sharing those images on social media has become a cultural phenomenon. But for German diners, photographing your food could now land you in trouble for copyright infringement.

This stems from a 2013 judgment of the Bundesgerichtshof (Germany’s highest federal court) which lowered the threshold of originality traditionally required for obtaining copyright protection in the “applied arts.”1 While it is unclear what makes a meal sufficiently artistic to be eligible for protection, meals whose preparation includes a certain amount of creativity, which can be found in the texture, color combination, and food placement, likely will be eligible, while the majority of everyday meals that are not artfully crafted likely will not.2 Currently, there is no known case where a chef has sued a guest for copyright infringement, but it is still a possibility.3

Could this happen here, under U.S. copyright law? Probably no. It is unlikely that a chef’s creations could be eligible for copyright protection under the Copyright Act (“Act”). The Act recognizes eight categories of subject matter that are eligible for protection, and food is not one.4 But this has not stopped some from trying. In a recent decision, the U.S. Court of Appeals for the First Circuit held that neither a chicken sandwich recipe nor its name were eligible for copyright protection, finding that neither the recipe nor the name fell into any of the Act’s enumerated categories of works available for protection.5

Could a chef’s creation fit under any of the statute’s enumerated categories? In another recent case, this one coming from a district court in California, a Chinese-Vietnamese food supply company claimed copyright protection over a bowl of food featured in a photograph, claiming that the actual bowl of food itself was copyrighted as a “sculpture” – one of the Act’s enumerated categories.6 The court held that the “ingredients of a traditional Vietnamese dish” placed in a “common bowl,” lacked sufficient originality. Further, invoking the merger doctrine, the court stated that, “food items cannot be separated from their utilitarian function, which is to be eaten.”7 The Act requires that works be physically or conceptually separate from their utilitarian functions; thus the bowl of food was not eligible for protection.8

This raises the question of whether a food item can ever be sufficiently original or separated from its utilitarian function. Does this court’s reasoning apply to masterfully created food sculptures where the food undeniably becomes art, and where the primary purpose of the food is not to be eaten, but rather to serve as a medium for the sculpture? These cases seem to suggest that a U.S. court could find original food presentations creative enough to meet the “original work of authorship” criteria, but the author would encounter a large hurdle when seeking to overcome the conceptual separability test.9 But, practically speaking, U.S. diners should not fret about taking pictures of their food, as it is unlikely that a chef would risk the bad publicity of bringing a case against a diner.10

 

 


  1. Tina Gausling, German Federal Supreme Court expands design protection: ‘Birthday Train’, 9 J. Intell. Prop. L. & Practice 549 (2014), http://jiplp.oxfordjournals.org/content/9/7/549.abstract [http://perma.cc/9VKH-7XZT]; Christian Lemke, Trademarks, Registered Designs and Minimum Standards of Copyright Protection in Germany, INTABulletin (July 1, 2014), http://www.inta.org/INTABulletin/Pages/TrademarksRegisteredDesignsandMinimumStandardsofCopyrightProtectioninGermany.aspx  [http://perma.cc/7R9X-YDEU].

  2. Daniel Eckert, Das Fotografieren von Essen könnte teuer werden, Die Welt (Aug. 13, 2015), http://www.welt.de/finanzen/verbraucher/article145156808/Das-Fotografieren-von-Essen-koennte-teuer-werden.html [http://perma.cc/KGB9-2DU7].

  3. Benjamin Beck & Konstantin von Werder, Food Plating and Copyright – Can Instagramming Your Meal Be Construed as Copyright Infringement?, All About IP (Sept. 10, 2015), https://www.allaboutipblog.com/2015/09/food-plating-and-copyright-can-instagramming-your-meal-be-construed-as-copyright-infringement/ [https://perma.cc/2A4U-4EGN].

  4. 17 U.S.C § 102, https://www.law.cornell.edu/uscode/text/17/102 [https://perma.cc/W39Y-JNKN].

  5. Chicken Sandwich Recipe, Name Not Eligible for Copyright Says First Circuit, The National Law Review (Sept. 29, 2015), http://www.natlawreview.com/article/chicken-sandwich-recipe-name-not-eligible-copyright-says-first-circuit [http://perma.cc/LB9K-TZCA].

  6. Is Food Art? The Copyrightability Of Food, Law360 (June 11, 2012, 12:54 PM), http://www.law360.com/articles/345928/is-food-art-the-copyrightability-of-food [http://perma.cc/8EUR-RM5P].

  7. Kim Seng Co. v. J&A Importers, Inc., No. CV10-742 CAS, (C.D. Cal. Aug 30, 2011), https://casetext.com/case/kim-seng-company-v-j-a-importers [https://perma.cc/M7BD-GSJU].

  8. Kim Seng Co. v. J&A Importers, Inc., No. CV10-742 CAS, (C.D. Cal. Aug 30, 2011), https://casetext.com/case/kim-seng-company-v-j-a-importers [https://perma.cc/M7BD-GSJU].

  9. Cathay Y. N. Smith, Food Art: Protecting “Food Presentation” Under U.S. Intellectual Property Law, 14 J. Marshall Rev. Intell. Prop. L. 1 (2014), http://repository.jmls.edu/cgi/viewcontent.cgi?article=1342&context=ripl [http://perma.cc/57NR-23M9].

  10. Cathay Y. N. Smith, Food Art: Protecting “Food Presentation” Under U.S. Intellectual Property Law, 14 J. Marshall Rev. Intell. Prop. L. 1 (2014), http://repository.jmls.edu/cgi/viewcontent.cgi?article=1342&context=ripl [http://perma.cc/57NR-23M9].

Alexandra Lyon

Alexandra Lyon is a second year student at Fordham University School of Law and a staff member of the Fordham Intellectual Property, Media & Entertainment Law Journal. She is also a copyright intern at the Brooklyn Museum, and is fascinated by the intersection of art and intellectual property.