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

Pornography and Copyright Law

Often overlooked by many as 'artistic', pornography and other adult materials still carry quite the value in today's society. An estimated 3000 dollars is spent every second on pornographic material, netting 13 billion dollars yearly on average. As such there clearly is huge value in the protection of adult materials, yet more often than not the material is dismissed due to its nature as a sexual work. Regardless of some prevailing attitudes towards pornography, I thought it would merit exploration as a protected work under copyright.

United States

Under US law certain works are protected under copyright, which include both motion picture works and photographic works, among which most pornographic materials are produced. The categories do not mention any exceptions for obscene works, and prima facie should include any and all adult materials, provided they do not infringe any other legislation relating to the protection of children for example. Whether pornographic materials were protected under copyright was a question that had not been unequivocally answered until the case of Mitchell Brothers Film Group v Cinema Adult Theater. In the case the Court of Appeal saw that "[c]reating a defense of obscenity [may]... actually frustrate the congressional purpose underlying an all-inclusive copyright statute". In addition to this, the Court saw that "[i]t will discourage creativity... Requiring authors of controversial, unpopular, or new material to go through judicial proceedings to validate the content of their writings is antithetical to the aim of copyrights. If the copyright holder cannot obtain financial protection for his work because of actual or possible judicial objections to the subject matter, the pro-creativity purpose of the copyright laws will be undercut". The position in the aforementioned case has been since affirmed in later cases, clearly showcasing that the judiciary has no intention to exclude 'obscene' materials such as pornography. The Court did not discuss any potential negative impacts that obscene materials could have, and arguably this does not merit much argument, as sex and sexual activities are inherently a part of human culture, and have been for as long as culture has existed. A line has to be drawn when the material crosses over to the territory of illegality, but "normal" pornography should be protected under copyright.

Ann Bartow has argued that Article 1 of the US Constitution could provoke more discussion as to the copyrightability of pornography, as the law's intention is to "...promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries", as one could argue that pornography does not promote the progression of useful arts. This writer would see that adult materials could just as well promote the useful arts, as sexuality and sex represent a side of humanity which is essential and necessary, both as arguably a form of art, and as a form of entertainment, bar the exceptions of illegal materials in such a category.

United Kingdom

In the UK the Copyright, Designs and Patents Act 1988 functions in a similar fashion to its US counterpart, although the precedent is still unclear as to the legislation's position in relation to pornography. In the case of Glyn v Weston Feature Film Company Justice Young, obiter, saw that potentially obscene works could be protected, such as the one in question in the case; however refused to do so as "[t]he episode described in the plaintiff's novel, and which she alleges has been pirated by the defendants, is in my opinion grossly immoral in its essence, in its treatment, and in its tendency". Arguably societal norms have changed immensely since the decision in Glyn, and immorality through sexual acts is not seen as wholly good or evil, especially in a more entertainment based medium such as pornography.

The Obscene Publications Act 1959 does provide some offenses relating to 'obscene' materials; however its potential impact on pornographic material is questionable. The CPS has provided some guidelines in terms of such materials, and clearly indicates it would only apply to "extreme pornography" or material containing children.

Conclusion

Similar views have been shown in other common law jurisdictions, and it can be argued that pornography is protected under copyright, bar some exceptions mentioned above. As the morals of society change, and the consumption of different forms of media evolve as well, whether adult materials will be fully accepted will remain to be seen. Some measures have been initiated in the UK to block pornographic materials, and the outcry goes to show just how important this topic is in the public mindset. Morality should not be wholly dictated by the legislature or the judiciary, and those decision should reflect society as a whole, not merely the values of a small part. Pornography and the law will keep on finding a balance, and it can be said the medium is here to stay, and protected under copyright.

Streams of Infringers - Germans Face Infringement Allegations over Adult Material

People's Internet browsing habits can be incredibly personal, especially when it relates to certain materials of an adult nature. As such pornographic materials have been used to coerce people into paying for alleged cases of copyright infringement, mostly because of the potentially embarrassing effect a publicly accessible litigation process would have on those individuals. Recent instances have been noted in Australia and more prominently in the US by Prenda Law (something which will be discussed on this blog very soon in more depth). Although seemingly a much rarer vehicle for short-term profits for some entities, recent times have shown an increase in behavior deemed as "copyright trolling"; much akin to patent trolling discussed on this blog prior.

The Germans are the current recipient of such claims, with thousands of Germans being targeted as alleged copyright infringers after visiting the streaming website RedTube (no affiliation with the more known YouTube I'm sure). With numbers having been reported as high as 30,000 Germans as recipients of these letters, the potential value sought by the firm U+C would be over 7,5 million euros.

As such web streaming has been deemed to not infringe copyright in many jurisdictions due to no copy being created in the process of streaming; however U+C argue that "...watching videos on sites such as Redtube can qualify as a proliferation of copyrighted material as a small copy of the file is created in the memory of the viewer’s computer", thus making a copy of the work and potentially infringing copyright. Commenting on behalf of RedTube Alex Taylor, their Vice-President. stated that "RedTube stands by its firm opinion that these letters are completely unfounded and that they violate the rights of those who received it in a very serious manner".

Many are unsure of how to pay the pizza delivery man, if some videos are any indication

Alongside the potential precedent that could be set by the case should it be taken further, potentially causing web streaming to be deemed to infringe copyright, the issue of whether this does infringe the privacy of German citizens can be raised. As stated by Christian Solmecke for the Guardian "...there was not only no legal basis for the fines, but that it was possible that the law firm behind the letters may have broken the law...[and] [i]t is hard to imagine how the IP addresses of the users could have been obtained on a legal basis". More notably this could be an infringement of the right to a private and family life under the European Convention on Human Rights, in addition to any specific German legislation.

The issue of the temporary copies has been argued by Tim Worstall as being potentially correct, stating that "If the original streaming site hasn’t been paying the right royalties it is possible that the viewers owe them. for that idea of a copy existing in the browser would not be, in at least some jurisdictions, be rejected out of hand". This writer for one can see the potential argument as being valid given the right line of argument or set of facts; however due to the current precedent surrounding web streaming it would be unlikely for it to be deemed a form of infringement.

As it stands the matter has not been taken to court, but due to the sheer visibility of the matter it seems unlikely it would avoid litigation entirely, assuming U+C have belief in their argument and are not simply trying to use peoples' embarrassment as a way to make a quick buck. Whether this will go further will remain to be seen, but this writer for one would love for U+C's argument to be tested in court.

Source: The Guardian