/>iThe newest trend gaining popularity in the world of social media is amateur food photography, also known as “foodstagram” or “food porn.”[1] Food porn is the visual experience of something that other people can smell and taste. [2] Such activity is embraced by those who wish to document their restaurant experiences on Facebook, Instagram, and Twitter.[3] In addition to these sites, amateur food photography can be viewed on blogs, such as Foodie.com and Ramentology.com.[4] Also, for those enthusiasts who wish to experience food porn from behind the camera, Whole Foods has offered classes in “iPhone food photography” so that photographers can learn how to perfectly capture their plates. [5]
However, with this growing popularity comes a growing concern among chefs that food porn infringes on their intellectual property rights. [6] In 2013 Germany’s highest federal court lowered the threshold of originality traditionally required for copyright protection in the “applied arts.”[7] The court held that for carefully arranged food, the cook is regarded as the creator of a work and permission must be given before photos are made public; otherwise, violators could face a copyright warning notice. [8]
Could a similar law apply under U.S. copyright law?[9] The following will discuss whether copyright law could extend to food porn in terms of protecting chefs’ intellectual property rights.
Extending Protection to Food Design and Plate Presentation Under U.S. Copyright Law
Under U.S. copyright law, “[a] sculptural work is copyrightable if it is a work of original authorship fixed in a tangible medium of expression that demonstrates sufficient creativity, and contains artistic aspects that are separable from its utilitarian functions.”[10] Currently, food is not protected under copyright law. [11] Absent such protection, multiple discussions have explored the idea of extending copyright protection to the culinary arts.[12]
A noteworthy limitation of copyright protection is found in the separation of ideas and expression.[13] Stated plainly, copyright law protects the expression of ideas, but not the ideas themselves.[14] For example, this is illustrated in cases concerning the copyright protection of recipes.[15] Courts have denied extending copyright protection to recipes because such items are statements of an idea, procedure, and process, and not original works of expression.[16]
Courts have established that this separation may be shown by either physical or conceptual separation.[17] Concerning culinary creations and plating arrangements, a design element would be considered physically separable if it could be removed from the food and sold separately.[18] Further, a conceptual separation could be shown if the design’s artistic features do not contribute to the utilitarian aspect of the food, and such features invoke an idea separate from the functionality of the food. [19] Thus, plate presentations could be deemed as sculptures that are conceptually separable from the nutritional value and taste of the underlying food itself.[20]
Preventing a Creative “Chill”: Providing a Balance with the Fair Use Doctrine
Although many chefs are in favor of expanding copyright protection to food photography, others are concerned that such laws will actually stifle and prevent the creativity and innovation that the laws are designed to protect.[21]For instance, new chefs would have fewer sources to imitate or from which to prepare derivative dishes, students would be prevented from learning new or mastering traditional dishes, and such laws could limit the menus of restaurants and hinder competition.[22] Furthermore, although a bit extreme, individuals might not be able to prepare dinner for their families without infringing on an existing copyright. [23] Thus, although original dishes may be, at least conceptually, worthy of copyright protection, such protection requires balance.[24]
This balance is achieved through section 107 of the Copyright Act.[25] The purpose of this doctrine is to limit the exclusive rights of copyright holders in preventing the reproduction of their work if that reproduction is done in a way that represents a desirable social benefit.[26] The fair use doctrine encompasses three distinct common law principles: productive, necessary, and equitable fair use.[27]
Productive fair use is transformative, altering the original work or offering it for a new purpose.[28] This could potentially allow chefs to improve copyrighted dishes by changing their ingredients, flavors, textures, or arrangements in a significant way to create a new dish.[29] Necessary fair use is appropriate when a reproduction is used to benefit public purposes, such as research, teaching, or non-profit purposes.[30] This exception could allow culinary art schools to instruct students on how to create previously copyrighted dishes.[31] Equitable fair use is allowed when a copyright holder has acquired protection by fraud, through abuse of his market power, or if the holder has improperly delayed enforcing the copyright.[32] This limitation would require chefs to assert their copyrights in accordance with equity and accepted social practices.[33]
Therefore, although there is concern that the expansion of copyright protection to food photography would negatively impact creativity and innovation, the fair use doctrine would likely achieve the balance necessary for such an expansion to be beneficial.
Alternative Intellectual Property Laws: Trademark, Patent, and Trade Secret Protections
Aside from copyright protection, there are other intellectual property protections available to chefs in relation to food photography. However, with respect to copyright law, these alternatives tend to be weaker and less analogous.[34] The following will discuss trademark, patent, and trade secret protections.
Trademark and Trade Dress
Trademarks are “any word, name, symbol, device, or combination used to distinguish goods from those of other manufacturers or sellers and to indicate the source of those goods.”[35] Trademark law protects brand names, designs, and other elements of products; whereas, trade dress law protects the design, shape, color, packaging and appearance of products, but only to the extent that they identify the source and origin of the owner’s products.[36]
Additionally, trademarks and trade dress must have an “inherently distinctive” character to be eligible for registration and protection. [37] An inherently distinctive character immediately communicates to consumers that they are identifying the source and origin of a product.[38] Moreover, distinctiveness may be acquired through “secondary meaning,” where consumers recognize the trademark as a source identifier over a period of time.[39] Trade dress protection of packaging may be acquired through inherent distinctiveness or secondary meaning.[40] Conversely, trade dress protection of designs that are deemed not to be “packaging” may only be acquired through secondary meaning. [41]
Thus, there is a question of whether food plating is considered packaging or product design.[42] If food plating is deemed packaging, it may be protected as an inherently distinctive trade dress.[43] Whereas, if food plating is deemed as a design, it will only be protected once sufficient time has passed to acquire secondary meaning. [44]
Chefs may think it beneficial to trademark the name of a specific dish.[45] Though chefs may look to trademark protection in this instance, the name of a dish may be safe from infringement, but the dish itself would not be protected. [46] Therefore, with the complexity of categorizing plate presentation and the lack of protection concerning the physical dish, trademarks are not adequate to protect chefs from food photographers.[47]
Design Patent
Similar to the protections of copyright law, patent protection generally offers three different forms of protection: utility, design, and plant. [48] Once the form of the patent is determined, chefs can apply for a patent as long as it meets the “new, original and ornamental” and nonobvious standard.[49]
Design patents have been successfully registered for food presentation and plating.[50][51] Despite this success, such patents are not limited to plate presentations. [52] New shapes of food, such as various shapes of pasta, waffles, and even a peace symbol pretzel have received design patents.[53] Therefore, it appears that as long as chefs can meet the required standard, their plates can be protected.[54] Although it may be possible to obtain a patent, a major impediment is the high cost of obtaining one.[55] Chefs also face additional costs in terms of enforcement and potential prosecution.[56] Furthermore, design patents require that chefs disclose their recipes and plating techniques.[57] This could be problematic if a chef has held such information as a trade secret.[58] Lastly, design patents expire within fourteen years, which allows reproduction after that time. [59]
Consequently, although it may be possible for chefs to receive design patents for their dishes, the costs of obtaining and enforcing this type of patent may outweigh the benefits of its protection.[60]
Trade Secrets
Most utilized by chefs are trade secret protections.[61] However, of all the intellectual property protections, this is the weakest.[62] A trade secret consists of “a formula, pattern, compilation, program device, method, technique, or process.”[63]First, the piece must “derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means, by other persons who can obtain economic value from its disclosure or use.”[64] Second, it is the “subject of efforts that are reasonable under the circumstances to maintain its secrecy.”[65]
Enforcement is the most difficult aspect of trade secret protection.[66] In order to utilize a given trade secret, a chef is unable to share the dish with the public; doing so would contradict the secrecy required for this protection. [67] Although nondisclosure agreements are seen as the primary way to maintain secrecy, the agreement would only apply to the contracting parties.[68] Furthermore, the agreement would not prevent competitors or other third parties from viewing the dish.[69]
Therefore, because chefs are unable to satisfy the secrecy requirement of trade secret protection, such laws would likely be ineffective against food photography.
Additional Options: State Law & Restaurant Policies
Section 301(b)(1) of the Copyright Act recognizes that state law may be applied, but is not required, to protect the categories of works that fall outside the scope of federal protection.[70] Because food design and plate presentation are presently omitted from coverage, this section may suggest that state law is the most efficient way of addressing this issue.[71] Nonetheless, such legislation would be limited in scope and varied among the different states.[72] Additionally, chefs have the option to ban all photography within their restaurant.[73] Alternatively, similar to German law, instead of an outright ban chefs could require diners to ask permission before taking or posting photos of their dishes. [74]
Conclusion
Without federal copyright protection, and absent adequate protection from alternative intellectual property laws, it appears that food porn is here to stay. Until copyright law is extended to include the creative works of chefs, chefs can appeal to state law, institute no-photo policies in their restaurants, or simply embrace the free advertising. Thus, for now, food porn supporters are free to enjoy all the food porn that their eyes and stomachs can handle.
[1] Cathay Y. N. Smith, Food Art: Protecting "Food Presentation" Under U.S. Intellectual Property Law, 14 J. Marshall Rev. Intell. Prop. L. 1, 22 (2014).
[2] Jenni Lyman, #FoodPorn in the US—Is It Illegal?, Rich. J.L. & Tech. (Sep. 17, 2015), http://jolt.richmond.edu/index.php/blog-foodporn-in-the-us-is-it-illegal/#_ftnref3 .
[3] Id .; See Smith, supra note 1, at 22.
[4] See Smith, supra note 1, at 22.
[5] Id .
[6] Oliver Herzfeld, Protecting Food Creations, Forbes (Mar. 7, 2014), http://www.forbes.com/sites/oliverherzfeld/2014/03/07/protecting-food-creations/ .
[7] Alexandra Lyon, No #FoodPorn Please, Fordham Intell. Prop. Media & Ent. L.J. (Nov. 2, 2015), http://www.fordhamiplj.org/2015/11/02/no-foodporn-please/.
[8] See Lyman, supra note 2.
[9] See Lyon, supra note 7.
[10] See Smith, supra note 1, at 7.; see also Copyright Act of 1976, 17 U.S.C. §§ 101-1332 (2012).
[11] See Smith, supra note 1, at 23.
[12] Id .
[13] See Herzfeld, supra note 6.
[14] Id .
[15] Id .
[16] Id .; see Publ’ns Int'l, Ltd. v. Meredith Corp., 88 F.3d 473, 481 (7th Cir. 1996) (holding that recipes describing a procedure by which the reader may produce many dishes featuring Dannon yogurt are excluded from copyright protection as a procedure, process, or system).
[17] See Herzfeld, supra note 6.
[18] Id .
[19] Id .
[20] Id .
[21] J. Austin Broussard, An Intellectual Property Food Fight: Why Copyright Law Should Embrace Culinary Innovation, 10 Vand. J. Ent. & Tech. L. 691, 724 (2008).
[22] Id .
[23] Id .
[24] Id . at 724-25.
[25] Id . at 725; See also § 107: The fair use of a copyrighted work, including such use by reproduction ... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
[26] See Broussard, supra note 21, at 25.
[27] Id .
[28] Id . at 725-26.
[29] Id .
[30] Id . at 726.
[31] Id .
[32] Id .
[33] Id .
[34] Caroline M. Reebs, Sweet or Sour: Extending Copyright Protection to Food Art, 22 DePaul J. Art, Tech. & Intell. Prop. L. 41, 54 (2011).
[35] Id . at 55.
[36] See Herzfeld, supra note 6.
[37] Id .
[38] Id .
[39] Id .
[40] Id .
[41] Id .
[42] Id .
[43] Id .
[44] Id .
[45] See Reebs, supra note 23, at 55.
[46] Id .
[47] Id .
[48] Id .
[49] See Smith, supra note 1, at 21.
[51] Id . at 19. Contessa Food Products owned a design patent for “Serving Tray with Shrimp.” The design patent illustrates a circular serving tray with a circular holder in the center for cocktail sauce. On the serving tray, shrimp are placed next to each other, forming two circular designs of shrimp around the trays, creating an overlap between the two circles of shrimp. Viewed from above, the plating creates an impression of a clockwise turning wheel of overlapping shrimp.
[52] Id . at 20.
[53] Id .
[54] Id . at 21.
[55] See Reebs, supra note 23, at 57.
[56] Id .
[57] See Smith, supra note 1, at 21.
[58] Id .
[59] Id .
[60] Id .
[61] See Reebs, supra note 23, at 57.
[62] Id .
[63] Id .; Uniform Trade Secrets Act § 1(4).
[64] See Reebs, supra note 23, at 57.
[65] Id .; See Herzfeld, supra note 6. One of the most famous examples of a trade secret is the recipe for Coca-Cola. The recipe is known only to a few employees who are subject to non-disclosure agreements. Additionally, the only writing of the formula is kept in a bank vault in Atlanta, Georgia.
[66] See Reebs, supra note 23, at 57.
[67] Id .
[68] Id .
[69] Id .
[70] See Reebs, supra note 23, at 72-73.
[71] Id .
[72] Id .
[73] Helene Stapinski, Restaurants Turn Camera Shy, N.Y. Times (Jan. 22, 2013) http://www.nytimes.com/2013/01/23/dining/restaurants-turn-camera-shy.html?_r=4&module=ArrowsNav&contentCollection=Dining%20%26%20Wine&action=keypress®ion=FixedLeft&pgtype=article .
[74] Id .
