©2016. Published in Landslide, Vol. 9, No. 1, September/October 2016, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
The creative endeavors of chefs represent an increasingly valuable contribution to the economy and to society. Accordingly, it is not surprising that some members of the culinary industry have sought legal mechanisms for protecting chefs’ culinary creativity from copying. Restaurants and publishers are increasingly turning to intellectual property law to find ways to prevent others from cooking similar dishes or publishing similar recipes.
Here, we address the current state of U.S. copyright law governing culinary creativity. Although trade secret, trademark, and patent laws may also be relevant to cooking, copyright law is likely to offer the most significant venue for these sorts of disputes. In particular, we discuss the possibility of using copyright law to protect both written recipes and cooked dishes. We also briefly address the normative implications of these laws on cooking.
The most obvious and, as yet, most litigated mechanism for protecting the products of culinary creativity is to seek protection for the written recipes that describe how to prepare particular dishes. Recipes are potentially protectable as “literary works” within the contours of the current U.S. Copyright Act. In this sense, copyright protection for recipes could cover the literary creativity involved in choosing how to describe the ingredients and steps for producing dishes. It would not, however, protect the creative components of the dish as such (for example, the clever techniques and combinations involved in molecular gastronomy).
Recipes may be copyrighted if they represent original and at least minimally creative literary expression by their authors. The U.S. Supreme Court’s opinion in Feist explained that this is a very low threshold and that most works will evince the modest creative spark necessary for protection.1 Despite the incredibly low creativity bar imposed by copyright law, courts and scholars have been skeptical that many recipes can clear these hurdles. The Seventh Circuit Court of Appeals ruled, for example, that a plaintiff’s recipes for yogurt-based dishes “contain[ed] no expressive elaboration” on the list of necessary ingredients or the steps for combining them.2 The court contrasted these recipes with ones that “spice up functional directives by weaving in creative narrative.”3
The court also expressed concern that the recipes described functional processes and, thus, fell afoul of § 102(b) of the Copyright Act. Under this section, copyright protection does not “extend to any idea, procedure, process, system, [or] method of operation.”4 But § 102(b)’s limitations do not mean that literary works describing processes or methods are never copyrightable.5 Rather, the law limits copyright protection only to the original and creative expressions used in the descriptions and not to the processes themselves, at least when the process or method is susceptible of more than a few descriptions. Thus, taxonomies and numbering systems have been found copyrightable despite the lack of “narrative” where there were significant opportunities for expressive choice. Similarly, computer software is copyrightable as a literary work even though it is primarily functional and only a very small portion of the code may be expressive. Cases involving these sorts of works allow for copyright protection when authors have the freedom to make a variety of creative choices that are not dictated by functional considerations.
Given copyright law’s limited demands on expressive creativity, then, we suspect that many recipes could clear the requisite threshold and qualify as protectable literary works. Authors will have many choices to make regarding the manner in which they describe the ingredients and steps necessary for preparing a dish. Until the middle of the twentieth century, recipes were sparse and often opaque descriptions that assumed substantial tacit knowledge on readers’ parts. Now, recipes can sprawl over multiple pages and incorporate much more detailed descriptions of how to beat eggs (“violently” or “gracefully”) or the color of the resulting mixture (“pastel yellow,” “lemon chiffon,” or “butterscotch”). In addition, just as software programmers make choices about the arrangement and layout of different modules within the code, so too must recipe authors decide whether and how to combine steps and subrecipes within the same recipe or separate them. To the extent that these decisions represent expressive choices rather than functional ones, they count toward clearing the low hurdle of copyright creativity.
For recipes to receive copyright protection as literary works they must evince some level of literary creativity. This is essential for understanding the scope of copyrights in recipes, because authors of original recipes will only obtain protection for the original and creative aspects of their recipes. Other recipes for the same dish that do not copy the protected literary aspects of the original recipe would not infringe the copyright. Thus, other authors could freely produce their own versions of the same recipe that retain the culinary aspects of the dish but substitute different literary elements (for example, in the similes used to describe the color of beaten eggs). Only if other authors copy the original literary elements of the protected recipe in a substantially similar way would they infringe the copyright.
Relatedly, if recipes receive protection as literary works, those rights convey no protection over the “performance” of the recipe in a cooked dish. Although the authors of literary works receive the exclusive right to publicly perform their works,6 those rights are limited to the ability to recite (or perhaps dramatize) the literary work. In no sense is the culinary production of a dish described in a recipe a performance of the recipe. In light of these limitations, copyright law will likely only provide solace for cookbook or website publishers seeking to limit the dissemination of exact copies of their recipes in other printed or online sources. Copyright protection for recipes as literary works will not prevent others from cooking similar dishes or publishing different recipes for the same dishes.
Protecting Cooked Dishes
In light of the limited protection potentially available to recipes as literary works, some creators may be interested in pursuing copyright protection for their actual cooked dishes. In determining whether cooked dishes—that is, food as it is prepared and served—are copyrightable, several questions arise: What type of work is it? Is it sufficiently fixed and original? Is it a useful article? What are the functional considerations that may predominate? Is built food just categorically excluded from copyright protection? We will address these questions in turn.
For works to be copyrightable, they must fit into one of the categories of protectable expression recognized in § 102(a). Although none of these categories specifically refers to dishes, chefs might claim that their dishes constitute “pictorial, graphic, and sculptural [PGS] works.”7 A dish is a three-dimensional spatial creation. As such, it seems like a natural fit for the PGS category. Although traditional sculptural works are molded in clay, stone, or plastic, the use of mashed potatoes, sugar, or fish for purposes of sculptural depiction is not a concern for copyright purposes. Both the statute8 and legislative history9 of the 1976 Act state clearly that copyright subsists in original works regardless of the medium of expression. A sculpture is a sculpture, whether made of concrete, paper, ice, sugar, or Cheerios. Additionally, the fact that the plating of a dish is often not a coherent scene or depiction of a recognizable figure will not alone prevent it from being copyrightable. Copyright law does not judge the artistic merits of the work in question,10 but rather merely determines whether the work manifests the appropriate formal features to fall within the given category. Thus, as a threshold matter, built food seems to qualify as a sculptural work within the meaning of the Copyright Act.
To be copyrightable, a work must be fixed in a tangible medium of expression. As we have noted, the medium used by an author is irrelevant for purposes of copyright law. Cooked dishes are not expected to last as long as Michelangelo’s David, so there may be issues with respect to its permanence. In order to meet the statutory requirement, the work must be “sufficiently permanent . . . to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”11 But while we all want to eat delicious food as soon as possible, thus making it arguably transitory, many culinary dishes can last for the relatively short periods of time that have been accepted with other media. In addition, whether or not a particular item of food is sufficiently permanent to count as fixed, there are other mechanisms for fixing dishes. Recipes could perform the same fixation role for dishes that musical notation does for compositions. And the thousands of Instagram accounts devoted to food testify to possibility of fixing dishes via photographs.
In addition to fixation, a work must be sufficiently original to be copyrightable. Originality, however, only requires that it be original to the author and possess some minimal degree of creativity.12 As we described above, these are very low thresholds, but it is certainly plausible that some dishes could fail to meet them. In Oriental Art Printing, Inc. v. Goldstar Printing Corp., the court found that photographs of “the most common Chinese food dishes as they appear on the plates served to customers” were insufficiently original to merit protection.13 It seems that this reasoning can easily be extended from photographs of dishes to the dishes themselves. How far one must get from a burger and fries presented next to each other in a basket in order to be sufficiently original is a close question, but many fine dining plating designs are original for copyright purposes and truly novel, thus seeming to qualify for protection. Prior to Thomas Keller’s invention of the dish “oysters and pearls,” for example, no one had ever presented a raw oyster and a lump of caviar on top of a bed of tapioca covered in sabayon sauce.
To the extent that some dishes could qualify as original sculptural works, however, the inquiry is not yet finished. Unlike literary works, sculptural works are subject to an additional screening mechanism that prevents certain works from receiving protection if they are excessively functional. If sculptural works are “useful articles,” they must clear this additional hurdle to determine whether they contain aesthetic features that can be conceptually separated from their utilitarian components. Useful articles are PGS works “having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.”14 Because culinary dishes serve a nutritive purpose, they will constitute useful articles and be subject to the further separability analysis.
When making the separability inquiry, courts look to distinguish between copyrightable aesthetic features and noncopyrightable aesthetically pleasing industrial design. Several tests have been articulated to determine whether a given work’s aesthetic elements are sufficiently separable from their function as to make those elements copyrightable.15 An often-used test that has been adopted by the Second16 and Seventh17 Circuits takes a process-oriented approach and looks to whether artistic judgment, rather than functional considerations, motivated sufficient features of a particular work’s design.
To apply this test, however, there must be a threshold determination: What are the utilitarian aspects of food? At a minimum, food provides nourishment, and is in that sense useful. Calories, vitamins, and proteins allow our bodies to function properly. But are palatability, texture, method of eating (e.g., sauce covering the dish or on the side), or “tasting good” similarly utilitarian? For other PGS works, consumer-based considerations like the ones above do not remove them from copyright protection. A painter’s choice to depict a pleasing image—say in the work of Thomas Kinkade—does not make it less copyrightable. Furthermore, we would not say that a painter’s choice to use color theory in order to have viewers consume it in a specific way would be a functional consideration. Is turning a liquid into a gel, “caviar,” foam, or powder functional or artistic? Does it matter if the chef made the choice for the texture or for pure aesthetics? Are dishes just different from traditional paintings and sculptures?
Of course there may also be aspects of the visual presentation of a dish that constitute separable aesthetic elements. One can conceive of the design of the dish separate from its edible function, and often the design of the dish has nothing to do with the function of eating it. The plating is conceived for artistic reasons, regardless of what food elements make it up. One striking example of this is the work of Chef Jacques La Merde, whose Instagram page is filled with fine-dining looking dishes made of junk food.18 And these visual aspects of the dish are not at all impaired if the culinary components are replaced with plastic.
Although we see little difference between “looking good” and “tasting good,”19 we are not confident that courts will share our view. Taste in food has been historically subordinated to taste in the visual arts.20 Thus, in the case of food, a court may be more willing to think that taste is a functional consideration, so intertwined with the aesthetics as to make cooked dishes noncopyrightable. The Compendium of U.S. Copyright Office Practices takes the position that food is categorically unprotectable because the office treats taste as functional.21 For many chefs, however, pushing the boundaries of taste is exactly what they are trying to do. Grant Achatz of Chicago’s Alinea has been known to put leek ash (that is, burnt leeks) on his dishes. Many chefs are also experimenting with offal and other “throw away” ingredients. Additionally, what may be palatable or tasty for some consumers may not be for others: hot chicken wings, oysters, and insects are some examples. Thus, the functional consideration of taste, if taste is functional as to food, may not be as present for some chefs as others. In any event, dishes may be treated more like works of applied art, which are given a case-by-case analysis, than like fashion designs, which are generally categorically excluded from protection by the useful articles doctrine.
Lastly, it is worth considering whether dishes are statutorily exempted from copyright protection even though they share many features with protectable sculptural works. Some categories of expression are excluded from copyright, regardless of their aesthetic merit or inherent usefulness. For example, social dance steps, yoga poses, and football plays are not “choreographic works” regardless of their level of creativity and even though they all may involve moving the body in expressive ways. Similarly, bridges and dams are not protectable architectural works even though they involve architectural creativity. Unlike these other areas, however, there is no legislative history or other evidence suggesting that Congress intended to specifically exclude dishes from the category of PGS works or from the copyright skein generally. Yet Congress also made no specific provisions for protecting dishes although it, of course, was familiar with culinary creativity. Because Congress was aware of the possibility of extending protection to dishes but did not expressly do so, this suggests that it did not intend to do so.
Having discussed the potential protectability of recipes and cooked dishes through copyright, we should address whether protecting culinary creativity through copyright is a good idea. In the United States, copyright law exists not to give authors what they deserve but rather to optimize creative production. Accordingly, we must ask, would society be better off by giving chefs the right to exclude others from copying their recipes or dishes for their lifetimes plus 70 years?
When it comes to protecting recipes as literary works, we see little problem in granting copyright protection to authors of recipes. As discussed above, a recipe’s copyright would not reach the processes or methods used to create a dish, or even the list of ingredients. Rather, it would only reach the way a particular author described the ingredients and processes. Thus, in effect, copyright in a dish would generally only prevent exact copying of a recipe. Through this narrow copyright, authors and their publishers would be able to stop others from merely reposting a recipe from a cookbook on a website, thereby preserving the incentive to produce and publish these recipes. Thus, recognizing copyright in recipes could actually serve copyright’s central purpose: to incentivize creators to create and release their creations to the public. Also, the social cost here is low; only pure pirates are stopped. Downstream innovation would not be impeded, as a subsequent chef could improve a recipe by adding an ingredient or changing a particular technique, and she would be able to publish her own improved version so long as she does not copy the exact literary expression of her predecessor.
As to cooked dishes, however, copyright protection would be harmful to society. For the cooked dishes that would survive the originality and separability analyses discussed above, a high level of tacit knowledge and skill would likely be required for their reproduction. Unlike reprinting a novel or re-releasing a song, few people have the skills necessary to actually reproduce a given cooked dish. Moreover, if the dish has some novel techniques involved, those who will exploit the dish after its creator likely will have to learn it directly from the source. Thus, if chefs protect their dishes through copyright, there is the potential for considerable waste, especially after the creator dies. Those who had been taught the dish by the creator or others who wish to improve upon or modify it could be stopped by the creator’s heirs, but if those heirs do not have the tacit knowledge and skill necessary to exploit the dishes themselves, all they will be doing is stopping the public from having access to the dish until it becomes part of the public domain.
Copyright protection is also incompatible with the differences between dishes and traditionally copyrighted works in how they are disseminated to the public. Books, films, and music can be mass-produced and easily released to the public at large, and the public receives essentially the same benefit from the work wherever they consume it: whether we watch a movie in a multiplex or in our living rooms, we essentially get the same benefit. But if dishes were copyrighted, consumers would have to travel to the source to get the benefit of the dish. While Jean-Georges Vongerichten has 30 restaurants worldwide,22 many consumers could or would not travel to one of them (let alone afford the check) in order to experience his molten chocolate cake. Copyright’s duration likewise cannot be squared with the market trends and innovation cycles in the culinary world. Trends and fads in food come and go much more quickly than the duration of a copyright. Copyright protection would arguably slow this process down, producing, paradoxically, slower rather than faster innovation.
Relatedly, given the differences between the culinary industry and more traditional copyright industries, chefs may best be able to protect their interests through the use of social norms. In fact, that is what they currently do.23 Chefs have created rules about who can make a dish taught to them, where, when, and under what conditions. Chefs (and foodies) enforce these norms through attribution, shunning, or public ridicule. Norms can be more useful for protection than formal legal rules because they are able to completely account for the unique interests of a given group and are able to easily adapt as the interests of that group change over time. Accordingly, the current system of disfavoring copyright protection for dishes likely does a better and more efficient job of promoting creativity than would formal legal protection.
1. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 359 (1991).
2. Publ’ns Int’l, Ltd. v. Meredith Corp., 88 F.3d 473, 480 (7th Cir. 1996).
4. 17 U.S.C. § 102(b).
5. Note that the functionality screens that apply to pictorial, graphic, and sculptural works that qualify as “useful articles” do not apply to literary works.
6. 17 U.S.C. § 106(4).
7. Id. § 102(a)(5).
8. See id. § 102(a).
9. See H.R. Rep. No. 94-1476, at 52 (1976).
10. See Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903).
11. 17 U.S.C. § 101.
12. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).
13. 175 F. Supp. 2d 542, 546 (S.D.N.Y. 2001).
14. 17 U.S.C. § 101.
15. See Pivot Point Int’l, Inc. v. Charlene Prods., Inc., 372 F.3d 913, 923 (7th Cir. 2004).
16. Brandir Int’l Inc. v. Cascade Pac. Lumber Co., 834 F.2d 1142 (2d Cir. 1987).
17. Pivot Point, 372 F.3d at 931.
19. Christopher Buccafusco, Making Sense of Intellectual Property Law, 97 Cornell L. Rev. 501 (2012).
20. See Christopher J. Buccafusco, On the Legal Consequences of Sauces: Should Thomas Keller’s Recipes Be Per Se Copyrightable?, 24 Cardozo Arts & Ent. L.J. 1121, 1140–48 (2007).
21. U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 924.1 (3d ed. 2014).
23. See Kal Raustiala & Christopher Sprigman, The Knockoff Economy 57–95 (2012).