A Feast for the Eyes - Food Porn Banned in Germany?

Since the emergence of Instagram and other similar social networks, the power and marketability of pictures, especially of food, has sky-rocketed. This writer fondly remembers a time when he could go to a restaurant without having his friends take pictures of everyone's untouched dishes before tucking in. Alas, those days are gone, and with highly shared pictures comes a great deal of free marketing for the restaurants or eateries featured in those pictures. In other words, as Dominique Crenn, Chef de Cuisine at Atelier Crenn, put it: "Instagram came to give a voice to chefs and to the food they serve". An increase in sales or reservations can make or break a smaller establishment, while providing more established restaurants the financial boost they need among a more focussed, discerning consumerscape, and these images can be the difference between notoriety or infamy. Many would want to control this projected image, so could you exert ownership on photographs of your dishes?

In a somewhat interesting turn of events, albeit some 2 years ago, the German courts extended copyright protection to 'applied arts' under Directive 98/71/EC on the legal protection of designs in case I ZR 143/12 (press release on the decision in German here). This, according to many news outlets, covers food or plate arrangements, so long as they are not merely trivially thrown on the plate, but have an "advanced level" of design to them. This would entail more thought, and clearly is intended to cover those dishes that reflect a more artistic, sensual experience (for the eyes).

Floyd's pièce de résistance: the sad sandwich

As with many other types of artistic works, some dishes can exhibit a great deal of thought, ingenuity and planning, and this writer does appreciate a possible need to protect them under law. Even so, the enforcement of the new German law would be difficult, as many chefs would not sue those seeking to merely spread the name and design of their restaurant's dishes; however, should they want to keep new dishes or experience under wraps from the general public this route would seem much more attractive.

Under UK law it would be difficult to argue a case for the protection of food porn. Under the Copyright, Designs and Patents Act 1988, sculptures enjoy protection as artistic works under copyright. Should a chef make a particularly sculpture-esque food presentation, it would be possible for it to be argued as protectable under copyright, but with the caveat that the food sculpture would have to retain its artistic merit outside of just being sustenance. Similarly in the US their copyright legislation allows for the protection of sculptural works, so far as "...such design incorporates... sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article". This would mean that the sculptural aspect, i.e. the artistic features of the food piece, would have to exist outside of the food or its purpose (to nourish or to be enjoyed taste wise); a fact that would be difficult, albeit not impossible, to prove.

As one can see the protection of food porn is very difficult, even borderline impossible within the common law sans any major changes in the law. One could say this is the correct approach, since the design or food porn quality of any given dish is purely transient; an aspect of visual enjoyment prior to the consumption of the food, and intrinsically a part of the process of enjoyment in conjunction with the taste and feel of the item. Pictures of food are an important aspect of modern marketing, but it will be some time till protection is afforded to something more than the image of the dish.

Source: Eater

Can You Own a Recipe? When Food Meets Intellectual Property Law

Food is quite important to all of us, and not just because of its nourishing quality and necessity for life, but also for the sheer enjoyment of a dish which has been prepared with care and love. This writer for one will freely admit that he loves to both cook and eat (often the latter more than the former), which prompted me with a thought in the process of seeking out recipes to make: can you own a recipe, or if anything, are recipes protectable under intellectual property law? Upon initial thinking the question seems to beg an answer, since recipes are undeniably creations of great creative efforts, planning, knowledge and skill, which, prima facie at least, should afford it some level of protection. This aside, food is ubiquitous to all cultures, peoples, and as said above, a necessity, which would render their protection draconian or even preventative of the enjoyment of cultural aspects for the larger masses should recipes be isolated to only a select few. The question indeed deserves an answer, and I shall endeavor to do so below, separating the matter into each type of intellectual property.

Recipes and Copyright

Often people's first memories of recipes is a dusty old tome which their grandparents have kept and compiled over the years, containing family recipes and secrets from generations ago. Whether it is Gordon Ramsay or your lovely grandma, recipes take effort and skill to create and compile, being put into tangible form either on paper or online. Under the UK Copyright, Designs and Patents Act 1988, and similarly its US, Australian and Canadian counterparts, copyright protection is afforded to original literary works; however this protection is given to the expression of those literary ideas, not the ideas themselves (expanded more on this very blog here and here). Recipes, therefore, potentially could be protected under copyright should they be expressed in a very specific or original manner; however the ideas of the recipes themselves (for example the concept of a pancake) cannot be protected by copyright.

Some recipes are more 'original' than others

This was specifically discussed by the Australian IPO (link leads to an external PDF file), which this writer thinks is an accurate representation of the laws' applicability in most common law countries: "[t]he owner of copyright in a recipe has certain limited rights to control the manner in which their written recipe is used. This does not include, for example, preventing people from making the dish, or from writing their own descriptions of how to make it". To expand on this, the individual or entity can protect their recipe to an extent, but cannot prevent others from making that particular dish or writing down their version of the recipe. As expression is protected, and not ideas, mere techniques, information on ingredients or methods or the 'idea' of an overall recipe cannot be protected.

Copyright leaves recipes quite exposed, but does offer some level of protection should someone try to use your recipe which has been published in a book or in another protectable form. However should they want to publish their own version or efforts, even writing down a specific recipe in their own words after following someone cooking it, they are free to do so.

Recipes and Trademarks

The names of dishes can be quite valuable, especially if they gain a high level of traction. A famous dish can be highly desirable to protect in name, and under the UK Trade Marks Act 1994 (and similarly under its American, Australian and Canadian counterparts) a sign, an indicator of a goods' origin, can be protected, which easily encompasses the names of dishes or recipes. A recent example of this is the fabled Cronut, a mixture between a croissant and a donut, which became seemingly huge overnight. Arguably the recipe for a Cronut can be very valuable, and many have shared their takes on the item, but what truly brings protectability to the doughy foodstuff is its name - something its creator trademarked promptly. As illustrated above the idea of a Cronut is not protectable as is, but the name does prevent others from selling the item under the recognizable moniker, which is very often more valuable than attempting to prevent the use of a recipe. 

This is not to say protecting a dish or a recipe can result in a positive outcome. Last year a Vietnamese restaurant in London faced some backlash after it asserted its trademark on the dish "Pho", albeit used in the restaurant's name rather than as a means to protect a specific recipe. Whether it is a food related name or a distinct recipe with an elaborate or distinct name, trademarks do serve as a great tool to protect recipes, yet are limited to only truly distinct cases, as one cannot simply just trademark a common recipe or dish.

Recipes and Patents

The more interesting choice of the three was an option this writer had never even considered; patenting a recipe. More often than not patents protect inventions, which encompasses a very wide array of things, but one would never think of a recipe as an 'invention' no matter how inventive the approach can be. Nevertheless, this is still quite possible, although any aspiring food patent seeker will be fighting an uphill battle at best.

Intricate methods of cooking often lead to mixed results

Under the UK Patents Act 1977 for an invention to be patentable it has to fulfill certain criteria: it has to be something new; involve an inventive step; and be capable of industrial application. On the face of things a recipe could be exactly that, and fall under each category; however one can imagine this would pertain more to an industrial recipe, rather than a single kitchen in a single restaurant. A good example of a food related patent is Cadbury's patent for chocolate that doesn't melt (and for the sake of balance Nestle's equivalent is here). The recipe clearly calls for a specific method of creation, a way to make the recipe, rather than the recipe itself. Chocolate is way too common for it to be afforded patent protection, but a novel way to produce chocolate could easily be patented if it falls under all of the requirements. For a great in depth look at the matter in the US, please do read Gene Quinn's article, which covers recipe patents under US law very comprehensively.

Patents are a tougher sell as a method for protecting recipes, but are still quite viable and an option should you dish be created in a very unconventional, new way, and possibly include a more industrial approach rather than one which relates to looks or flavor alone. It won't protect the recipe per say, but it will protect the method through which that recipe is produced.

Conclusion

In short, can you own a recipe? Yes and no. To own a recipe in its most truest sense, it seems nearly impossible under current intellectual property laws, and rightfully so, since no nation would want to deprive its citizens of the multifaceted world that is the culinary world. One can easily own an aspect or two to a recipe, for example its name or a specific structure if it entails a strict layering process for example, or even a printed recipe, but the limits the law imposes on those rights are very strict and nuanced. Being able to buy a lasagna outside of a certain restaurant in Italy is truly a blessing for us all, and we can take that availability for granted.

A message to all aspiring chefs and current culinary professionals: focus on the quality of your product rather than its protectability under intellectual property law.

Copyright and Advert Hopping

To the avid TV watcher, commercials can be both the bane of their existence, providing a break at the crucial moment of your favorite show just when it got interesting, or giving you the perfect opportunity to make a quick snack or to dash off into the bathroom. Since the advent of digital means to record TV, both through the early years of VCRs down till the modern DVR or even recording live TV on demand when you desperately need to pause the action, consumers have always wanted a way to skip them if they so please. For companies who provide your weekly fix of digital entertainment galore, they're a necessary source of revenue. These two conflicting interests pose a dilemma, and a struggle from both sides to keep their respective interests in front of the other. But could skipping commercials infringe copyright? In a recent decision, the US Ninth Circuit Court of Appeals had to decide this very fact.

Foxes are very protective of their copyright

The case of Fox Broadcasting Company v Dish Network LLC concerned a service offered by Dish called the "Hopper". What this little nifty device was what is commonly referred to as a DVR, a Digital Video Recorder, which can be set to record any given TV show at any given time, much like its analogue cousin back in the era of VCRs. After some years of launching its Hopper device, Dish started to offer a capability in the device called "Autohop", which automatically would skip over commercials, only subjecting the person watching the show to the first few seconds and the last few seconds of any given commercial break. Unlike older versions of similar technologies, the function does not require any action on the viewer's part, but skips the commercials once the feature is enabled, whereas in older iterations of DVRs one would only have the ability to skip a certain time, for example 30 second increments. Fox Broadcasting and Dish had a contract between them, where among other things Dish customers were not to be able to fast-forward through any commercials when recording Fox's shows. Fox subsequently sued Dish for breach of contract and copyright infringement, of which the latter is of more interests to us in this instance.

In seeking a preliminary injunction, stopping Dish's service, Fox would have to prove (1) it is likely to succeed on the merits, (2) it is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in its favor, and (4) an injunction is in the public interest. In analyzing the court's decision at first instance, the Court of Appeals looked through precedent to establish whether Fox's claim would fulfill the above criteria to acquire an injunction. Drawing from the Sony Betamax case (discussed on this blog here) the court had to assess whether Dish's service would fall under fair use, which it did. In their decision the court saw that the District Court had correctly decided that Fox did not have a likelihood of success in their case, as Dish was not the one making the copy of the program; Fox would not have suffered irreparable harm due to Dish's service; nor was there a public interest for the granting of an injunction. In finding that there was no likelihood of success for Fox, the court saw that the scales were not tipping in their favor, which solidified Fox's case as one which did not merit an injunction.

The court did note that Fox did not have a claim to begin with as they do not own the copyright to any of the advertisements shown on its network. Without copyright there cannot really be infringement on that copyright, or at least a claim for such. Arguably the court's view was the correct one, and forcing consumers to watch adverts through technological means seems harsh at best. Technology should be used to enable better consumer experiences as opposed to being force-fed something which they potentially don't want to see. Fox can still claim damages for copies made by Dish for quality assurance purposes, which did infringe copyright, but whether they take action will remain to be seen, although seemingly a point of principle should they opt to do so.

Source: Electronic Frontier Foundation