Have you ever wondered where intellectual property protections and the culinary arts intersect? Of course not, you’re a normal human being! However, with the strong growth in the restaurant industry, outpacing most other industries during our long economic recovery, and the rise of food blogs (I swear to you, type in your favorite style of food and you’ll find some sort of blog on it), maybe it is time to start thinking about what protections are, or are not, offered in the food biz.
First, and probably most relevant: Is your mom’s excellent eggplant parmigiana recipe copyrightable (you know, in case you ever wanna monetize some family deliciousness)? Well, the short answer is probably not. But, say you were to create a book of recipes where that one was included. The book itself would be copyrightable and any reproduction of the recipes would be copyright protected. It seems like an awkward line to draw, but it is a real one. The Copyright Office says that the “mere listing of ingredients or contents” is not enough for protection, but that “a substantial literary expression – a description, explanation, or illustration, for example – that accompanies a recipe or formula or to a combination of recipes” may be entitled to protection. So, simple form: cookbooks are copyrightable because of their artistic expression (think photos, and the layout of the book) and their literary nature (anecdotes, asides, the fact that it is a book); however, individual recipes posted on the internet may not be protected because they are of a culinary nature and most likely fall under a “process” in the copyright world.
Now you’re saying, “But Rick, I own a restaurant! Is there anything I can do to protect myself?” Well, here’s where intellectual property law carries a little more heft. But before getting to that, you shouldn’t ignore the custom of the industry. A few years ago a chef in Australia, Robin Wickens, was creating some pretty intense dishes unlike anyone in Oz had ever seen before. They were so unique that the food blogs took notice. Once online, the blog eGullet recognized them as the creations of Grant Achatz a Chicago area chef who Wickens had studied under. This caused an uproar in the online culinary community, but was not followed by any litigation. Why? Well chefs treat their creations like Firefox treats its software: open source. The community severely frowns upon passing a dish off as your own, but the continually exploratory nature of cuisine and the constant improvement in the art enables chefs to take a dish, experiment with it, and create something new and exciting. This is also why copyright protections seem to fail, they exist to promote creativity…so, many chefs view them as unnecessary in such an experiment-heavy field, where shame is already an effective deterrent.
Though stealing a dish may only result in public shaming, stealing a style has actually been a cause of action. In 2007 Rebecca Charles, owner of Pearl Oyster Bar, sued her former sous chef, Ed McFarland. He had set up another restaurant, Ed’s Lobster Bar, which Charles claimed had used Pearl’s recipes, dish presentation, décor and overall look and feel of the restaurant. Though the case was eventually settled, Charles’s claims mostly rested on trademark style grounds, specifically trade dress. Trade dress generally applies to packaging but that has been expanded somewhat. In Two Pesos, Inc. v. Taco Cabana, Inc. the U.S. Supreme court held that a trade dress that is inherently distinctive or that has acquired a second meaning is protectable. So, if your restaurant has a distinctive style, even extending to its menu and dish presentation, there is a pretty good chance that you’ll have a case against a copycat restaurant. But remember, something like a general Spanish theme would not be enough. Specific and identifying finishes to the restaurant will have to have been copied as a whole. This route is growing in popularity as people like Intellectual Property Attorney Naomi Strauss are pushing for stronger use of trade dress protections in the culinary world.
We’re still not done. But we’ve gone on long enough for a blog post and just want to offer a few more morsels, so to speak. With the creation of molecular gastronomy and completely new ways of preparing and presenting food, patents may become applicable. Chef Hamaro Cantu of Moto is pushing to change the industry into something more license friendly, though he faces an uphill battle in regards to how most chefs think. And for a brief but great overview of all the legal topics related to the culinary world check out Emily Cunningham’s law review article on Intellectual Property and the kitchen.
Dan Cretu is an Eco Illustrator who creates amazing art with food and other biodegradable objects. Check out more of Dan’s work here http://dancretu.tumblr.com/.