It’s lunchtime in the central and eastern US, so this is a good time to post a couple of interesting copyright cases relating to food. First of all, in Germany it is now possible for chefs to copyright the presentation of their food—that is to say, they can treat their food as edible art, and sue you or at least send you a takedown notice if you take photos of it to post to social media. (One commenter on the Techdirt article suggests that, given that the work was commissioned on payment by a customer, it ought to be considered a work for hire, but apparently the German court didn’t see it that way.)
It’s possible that one hapless fellow who invented a chicken sandwich for Church’s Chicken in Puerto Rico should have tried that. He attempted to sue the franchisee for copyright violation over his chicken sandwich recipe, only to learn that copyright didn’t cover things like that.
“A recipe—or any instructions—listing the combination of chicken, lettuce, tomato, cheese, and mayonnaise on a bun to create a sandwich is quite plainly not a copyrightable work,” [Chief Judge Jeffrey] Howard wrote [in a First Circuit Appeals Court decision]. The name of the food item is also not copyrightable, because copyright protection cannot be extended to “words and short phrases, such as names, titles, and slogans,” Howard wrote.
So, let that be a lesson to you—at least in America, you can’t copyright a sandwich. But then, you also can’t eat most books.
Interesting twist…. what would these German courts say if someone rearranged the items before taking a picture? What’s being copyrighted, a piece of meat much like any other or the specific arrangement of items on the plate? Sounds like it is the latter, sometimes called a visual copyright.
Another issue has been stated this way: “In most cases the work must be written down or in permanent/fixed form to attract copyright.” Classic radio broadcasts, because they were live, weren’t copyrighted for that reason. In similar fashion, one could argue that, having eaten that plate of food, it’s no longer in a permanent form and thus not protected.
Finally, are these cooks taking pictures of their creations so they can prove infringement. If not, how can they prove that they were copied? The photographer can merely claim that this was someone’s creation. Whose?
Copyright courts often go too far, driven by rigid logic rather than good sense. This is an illustration.