No, California Law Review, Food Plating Does Not Deserve Copyright Protection

from the nope-nope-nope dept

Of all the mediums where intellectual property makes the least amount of sense, actual food and drink must certainly be among the most absurd. Not the trade dress of food packaging, mind you. I’m talking about the actual food and drink products themselves, be they craft beer or a plate of food. And, yet, you see this sort of thing crop up from time to time. A pizzeria somehow thinks it can trademark the taste of its pizza. Or, more apropos for today’s post, a German court that says taking pictures of plated food could violate the copyright of the chef.

Plating food is now coming up again, with a post on the blog of the California Law Review site suggesting that plated food, if artistic enough, does in fact deserve copyright protection. While the entire post is detailed and thorough, the real question of whether plated food merits copyright protection has less to do with the creative aspect of plating — of which there are some true creative aspects — than with the question of fixability. To warrant copyright, a work must be both original in its creativity and created in a fixed medium. There are a couple of key historic cases that address what it means for a work to be in a fixed medium, helpfully laid out in this John Marshall Law School article.

In Kim Seng Company v. J&A Importers, Inc., the court examined whether Kim Seng’s “bowl-of-food” sculpture satisfied the fixation requirement of copyright law.31 Kim Seng admitted that the bowl-of-food sculpture was comprised of “a perishable Vietnamese dish purchased by [an employee] from a local restaurant.”32 In analyzing whether Kim Seng’s bowl-of-food sculpture met the fixation requirement, the court compared it to the living garden in Kelley v. Chicago Park District, which was inherently changeable and ultimately perishable.33

In Kelley v. Chicago Park District, the current leading case on copyrightability of organic works, the Seventh Circuit analyzed whether an artistically arranged garden was “fixed” for the purpose of the Copyright Act.34 A famous artist, Chapman Kelley, installed a wildflower display in Grant Park, a prominent public park in downtown Chicago.35 His garden received critical and popular acclaim, and was promoted as “living art.”36 Without permission from Kelley, the Chicago Park District dramatically modified the garden by reducing its size, reconfiguring the flower beds, and changing some of the planting materials.37 Kelley sued the Park District.38 The Seventh Circuit found that Kelley’s living garden could not be eligible for copyright protection because it “lack[ed] the kind of authorship and stable fixation normally required to support copyright.”39 In its opinion, the court clarified that it was “not suggesting that copyright attaches only to works that are static or fully permanent (no medium of expression lasts forever), or that artists who incorporate natural or living elements in their work can never claim copyright.”40 However, Kelley’s living garden was “not stable or permanent enough” to be a work of fixed authorship.

So here we have two cases where courts are deciding copyright protections specifically in part on the question of fixed medium. While the California Law Review’s post focuses on the Kim Seng Company decision, trotting out several scholars who take issue with the court’s interpretation of the fixability question, I believe the the Kelley decision is actually more powerful. The first complaint from select scholars is that concept art often includes repetition that serves as a stand in for non-degradable medium for fixability.

First, Professor Said’s claim that an artists’ conceptual art is fixed when repetitively performed applies with equal force to chefs who plate the same dish over and over. It is likely that, in practice, a chef would not want to copyright one particular iteration of a dish; any serving of “Who Killed the Goat?” would not last the average four months it takes to process an internet-submitted copyright claim.[56][56][56] Registration Processing Times, U.S. Copyright Office [] (last visited May 1, 2019)…. Instead, Chef Anand’s nightly plating of “Who Killed the Goat?” would likely “repeat [itself] over and over,” warranting the exact kind of protection that Professor Said describes as being so repetitive as to achieve performance.

This only makes sense if you completely ignore the “transitory” language in the law, which states:

“A work is ‘fixed’ in a tangible medium of expression when its embodiment . . . is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of time more than transitory duration.”

A chef, brilliant and creative as he or she may be, creates and plates his or her food, that food literally transits to the table where it is enjoyed briefly before being destroyed via consumption, turned into mere caloric energy inside our bodies. Whatever the purpose of the law’s language, it can’t possibly have meant to assign copying restrictions to that. In the Kelley decision, we’re talking about art fixed in plants that might last years and years and yet that still didn’t warrant protection when Chicago decided to change the non-fixed expression around.

The second criticism is that the medium becomes fixed when people capture its image in photographs and video.

Second, Professor Said’s idea that “the first purposes of the fixation requirement lies in the use and enjoyment of the work by others” supports the notion that a dish is “fixed” when it becomes something more than just consumption.[58][58][58] Said, supra note 49, at 339 (citing Laura Heymann, How to Write a Life: Some Thoughts on Fixation and the Copyright/Privacy Divide, 51 WM. & MARY L. REV. 825, 842 (2009))….Certainly, the success of shows like Netflix’s Chef’s Table[59][59][59] Genevieve Van Hoorhis, When Will ‘Chef’s Table’ Return for Season 7? It Takes Time To Capture All That Tasty Goodness, Bustle (Feb. 22, 2019), []…. and the trend of posting food to social media proves that it exists long enough to be enjoyed by others.[

Except that’s ridiculous. If anything, all these examples show is that the fixed medium of photography and film deserve the copyrights in question, not the non-fixed work expressed via food.

To be clear, none of this is to say that chef’s can’t be extremely talented both in taste and in artfully plating their food. No matter how artistic they may be, however, either the medium is fixed or it isn’t. And as someone who can destroy a plate of food, I can tell you that medium ain’t fixed.

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Comments on “No, California Law Review, Food Plating Does Not Deserve Copyright Protection”

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Anonymous Anonymous Coward (profile) says:

Why don't we try and copyright nature, not a picture, but nature

I’ll go one step further. The likelihood that two plating’s of the same dish are identical are rather low. I mean identical in that plate #1, served at the beginning of the meal period and photographed, and plate #2 served at the end of the meal period and also photographed. Then when those two photographs are compared that differences cannot be discerned is nigh on impossible. (If you doubt me, try plating a banquet for 500 and get every plate to look exactly the same, even if they all get the same meal). That then means that each and every plate would have to have its own copyright applied for. And, with an average of four months to obtain the copyright for either of the plating’s, the ‘fixed’ part would be rancid.

Then there is the idea that, for example, a dish garnished with say a basil leaf, would require that each and every basil leaf be an exact duplicate of the others is shear lunacy. Nature does not work that way.

So let’s try to be a bit more reasonable. Let’s say that it’s the ‘design’ of the plating is what is being copyrighted and that that allows for some wiggle room that allows for differences that nature produces and the fact that one service plated while the ‘artist’ is fresh and the other when the ‘artist’ is tired. Then what are we left with? The main part of the dish goes in the middle, or left, or right, or top, or bottom and the garnish goes opposite, or next to, or on top, then those ‘aspects’ of plating would become unusable for any other chef, and eventually, when all the compass points have been registered other chefs would have to move on to square plates, or bowls, or oval plates, or specially design table ware that is unique to their restaurant. Then when all of those have been claimed, are the rest of restaurants just out of luck?

Now let’s consider the length of copyright. Life of the chef plus 75 years. The restaurant industry would have to close down. Oh, then there are all those corporate copyright holders who will want to get their hands on these brand new copyright forms, everything must be owned, doncha know. How about a chef who works for a hotel? Is it then a work for hire? If yes, then the only way a chef’s creativity get the protection is if he owns his own restaurant and works for himself.

This is an industry that gives competition to the worlds oldest profession for longevity, and it hasn’t needed copyright so far. Just what is the pressing need for it now?

McGyver (profile) says:

Re: Why don't we try and copyright nature, not a picture, but na

Isn’t something like 20% of the human genome already patented?
Give it a few more years and you’ll see people getting sued for having a particular eye color or nose shape.
I don’t even know if I’m being sarcastic anymore…
Half the ridiculous Simpsons grade shit I’ve joked about over the past few decades has come to pass in the last couple of years of this dystopian dumpster fire nightmare we are living through.

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Crafty Coyote says:

The consumption of food renders it destroyed by consumption. However, a mixed drink with a high enough alcohol content would not spoil and could enjoy copyright protection if it can be "fixed", though. Thus a Zombie or Painkiller (two rum-based cocktails known for their potency) could be left unconsumed for a long time, during which the mixer could claim copyright for his months-old concoction and thus gain rights to every Zombie or Painkiller ever made.

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Anonymous Coward says:

Re: So does this mean

Copyright is for white people, and white corporations. Niggers don’t need it or want it. We know how to share, and we know how to sing, and we certainly know how to dance. And we can chant, just look at the tv. "Hands up, don’t shoot". Shit, man, we dont need no stinkin copyright right. We have Obama rights. We rule. Obama will be back. You’ll see. Actualy, he never left. It’s been him all along. He’s an organizer, everybody knows that. And he’s hip and cool and look at his wife! What a peice of ass. Big lady, big ass, just like us niggers enjoy every day and every night and most afternoons. Copyright that, asshole whiteys!

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Peter (profile) says:

How does copyright protect arts and music, then?

While, in many countries, copyright is intended to protect a written, kreative text in its orginal form, the US has chosen to broadly expand the definition of copyright. To APIs of computer code, for example (Oracle v. Google), where the courts decided that not only the original wording of the written code was protected, but the intention of how the APIs should work.

The same goes for music, where not only the text is protected, but also the "recording". "Recording" in the sense that not only is it illegal to distribute .mp3-files, but also to re-enact the music on your own instrument.

And since food packaging was mentioned: It is possible to protect shapes, colours and designs – by submitting pictures of what the protected packaging might look like, one can prevent anybody else from marketing similar designs.

All of which means that, yes, courts and professors argue that copyright requires fixation. There are plenty of examples where copyright does not require fixation.

And neither should it: One might argue that the creation of a chef is much closer to the "arts and sciences" mentioned in the constitution than, say, computer code, technical manuals or even government memos that have been copyrighted in the past.

"[the United States Congress shall have power] 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."

Ehud Gavron (profile) says:

Fixed Medium

Yesterday I made white rice and chicken. I glued them onto the brand-new white plain Chinette (10 3/8") so they wouldn’t move.

Then I used my woodworker spray lacquer to ensure they’d not only stay in place and not move, but also not age or spoil.

Then I took a picture.

I’m 100% sure I own the copyright on the picture 😉

P.S. I deleted the picture. That stuff was inedible and I had to throw it out.

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Jeroen Hellingman (profile) says:

I would say, when considering food plating for "copyrights", neither creativity or fixation should be considered, before first we consider what economic problem we intend to solve with such a right. If there is no significant economic problem (e.g. restaurants not being able to serve food due to this issue), there is no need for legal interference in the market. If all it is is yet another attempt at crippling competition, it should be dismissed immediately.

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