By Oliver Herzfeld
March 7, 2014
The New York Times, the BBC and the Guardian have all reported on chefs who either discourage, regulate or outright prohibit customers from taking pictures of the food they order. The chefs’ grievances range from a breach of etiquette and disruption to ambiance caused by customers climbing on chairs and engaging in other antics to get the best angle, irritation and annoyance suffered by other patrons subjected to the glare of flashes, poor quality pictures reflecting negatively on the chefs’ creations, and the fact that photograph-taking elongates dining times causing a loss of business through fewer turns. One additional objection involves claims that so-called “food porn” posted to social media somehow infringes on the chefs’ intellectual property rights. This provides a good opportunity to review the U.S. laws relating to the protection of food creations including recipes and plating.
U.S. copyright law extends protection to “original works of authorship fixed in any tangible medium of expression.” An important limitation on the scope of copyright protection is contained in the so-called idea/expression dichotomy. According to the U.S. Copyright Act “[i]n no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” In other words, copyright law protects the expression of ideas in any tangible medium, but not the ideas themselves. As a result, courts have denied copyright protection to recipes, deeming them to be statements of an idea, procedure and process and not original works of expression.
With respect to culinary creations and plating, the U.S. Copyright Act deems the design aspects of “useful articles” (e.g., clothing, furniture and, presumably, food) protectable “only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” Courts have established that the test for separability may be met by showing either physical or conceptual separability. A design element would be considered physically separable if it could somehow be removed from the food and sold separately, and conceptually separable if it comprises artistic features that do not contribute to the utilitarian aspect of the food and such features invoke an idea separate from the functionality of the food. Thus, I believe the unique design of food creations and plating could be deemed legally protectable sculptures that are conceptually separable from the nutritional value, good taste and other utilitarian aspects of the underlying food itself.
Trademarks and Trade Dress
The U.S. Trademark Act does not provide protection for food creations per se. Instead, trademark law protects brand names, designs and other elements of food products, and trade dress law protects the design, shape, color, packaging and appearance of food products, solely to the extent that they identify the source and origin of the owner’s products. For example, the name of a chef’s signature dish could be registered as a protectable trademark and unique culinary creations and plating could be registered as protectable trade dress if they identify the chef as the source and origin of such products. However, in addition to identifying the source and origin of the owner’s products, trademarks and trade dress must also have distinctive character to be eligible for registration and protection. Trademarks and trade dress are deemed to be “inherently distinctive” if they immediately communicate to a consumer that they are identifying the source and origin of a product, as opposed to describing the product itself. Alternatively, distinctiveness may be acquired through “secondary meaning,” a process whereby consumers come to recognize the trademark as a source identifier over a period of time. Trade dress protection of packaging may be acquired through inherent distinctiveness or secondary meaning. However, trade dress protection of designs that are deemed not to be “packaging” may only be acquired through secondary meaning. The question is should unique food plating be considered packaging or product design? The answer is not at all clear and could make a serious difference in the timing of legal protection available to a chef. In particular, if a chef’s choice of plates and arrangement are considered the “packaging” of a food product, the plating may be eligible for instant protection as an inherently distinctive trade dress. However, if food plating is considered part of the overall food product design and not packaging, the plating will not be eligible for trade dress protection until sufficient time elapses for the design to acquire secondary meaning.
A trade secret is any formula, pattern, device or compilation of information that is used in a business, which gives its owner an opportunity to obtain an advantage over competitors. In order to obtain protection of a trade secret, reasonable steps must be taken under the circumstances to treat it as a secret. To the extent a chef’s recipes remain a secret, trade secret laws could be effective in protecting them indefinitely. However, to the extent such recipes are disclosed to third parties in the absence of a non-disclosure obligation, the trade secret protection would be lost. One of the most famous examples of a trade secret is the recipe for Coca-Cola. It is known to only a few employees of The Coca-Cola Company who are all subject to significant non-disclosure obligations. And the only written embodiment of the formula is kept in the vault of a bank in Atlanta, Georgia.
What Should Chefs Do?
Chefs should engage competent legal counsel and consider (i) federally registering copyrights for the design elements of their creations as sculptures that are conceptually separable from the useful aspects of the underlying food products, (ii) federally registering for trademark protection of the names and/or trade dress protection of the designs of their signature dishes, and (iii) taking active steps to maintain the confidentiality of recipes as trade secrets that provide a competitive advantage over competitors through mandatory nondisclosure agreements with employees and other reasonable measures to preserve the secrecy of their recipes. Doing so would help chefs maximize the protection their culinary creations and edible art.