This is the first of a series of blogs in which I look at intellectual property issues in different sectors. I will be considering the extent to which IP protections such as patents, copyright, trademarks, designs, and know how protect business models.
This week the spotlight is on the IP issues that arise for chefs, and the visual aspect of their creations, that is, plating. In part 2, I will focus on recipes, and the protection of foods.
The widespread habit of posting pictures of foods we eat in restaurants on social media (so-called “food porn”) has led to a number of comments by chefs complaining about damage to their intellectual property.
For example, FranceTvInfo reported that French chef Gilles Goujon felt deprived of his “intellectual property” as a result of the practice. And in an article in the Eater in 2012 where several chefs of different origins were interviewed, a US chef expressed the view that photographs of his food without his consent involved the “taking of intellectual property” of the restaurant.
The reasons behind the objections to the practice range from breach of etiquette due to the disruption of the ambiance, to the irritation and annoyance caused to other diners. Mainly the chefs object to the poor quality pictures which they feel create a negative impression of their food creations.
So what is this all about and is there an IP problem?
Before it became so easy for anyone with a smartphone to take a picture of a meal, the way we experienced the food of a restaurant was to visit the place to eat the food. So, this is a problem that digitisation has brought about for restaurants and chefs.
A point to bear in mind is that people commonly refer to their “intellectual property” using the words in a loose sense to mean their ideas and creations. They do not necessarily mean to refer to intellectual property rights in the strict legal sense of the words.
However, let’s see whether there is a legal IP problem.
This involves first considering how the dishes are protected under copyright or design law. If there are IP rights, the next question is whether these rights are infringed by the taking and posting of photos on social media.
Copyright in plated dishes
In the UK, and US there is no protection in copyright for a plated dish because the law requires that a work be “fixed” in a more permanent form to enjoy copyright protection. Other possible forms of protection, such as artistic craftsmanship in the UK are unlikely to apply given that the purpose of a plate of food is for the customer’s consumption.
In Europe where there is no “fixation” requirement, the appearance of a dish could be protected by copyright. And high-end cuisine plates might well meet another of the legal pre-conditions for copyright protection – namely, that they be original.
However, even if the fixation problem mentioned earlier could be overcome, arguing that there is infringement in taking a photograph would be difficult as there would likely be fair use and fair dealing defences. In other words, you might argue that you took the photos for the purposes of doing a restaurant review.
There is no design right protection in the UK for a plate of food because unregistered design rights protect the shape and configuration of products rather than their surface decorations. Surface decorations would be protected under copyright law, which as mentioned above, does not help in protecting the layout of food on a plate in the UK and US.
In any event, design right is only infringed if someone were to make a product to the design (that is, the recipe). Simply taking a photo of the outcome of that recipe (that is, the designed product) would not be an infringement.
Registering the design of a plate of food is possible under EU law. Different types of design are classified for registration under what is known as the Locarno classification, and foodstuffs are expressly allowed for within Locarno Class 1.
However, unlike the large food manufacturers who protect their IP with registrations, (for example the design of spam slices is protected by EU Design No. 81344-0006), high- end food restaurants do not tend to register designs of their plates of food. Even if they were to do so, it is difficult to see what benefit they would derive from such protection. It would be relatively easy for other restaurants to copy the designs by creating plates incorporating some minor changes. Nor could they use design registration to prevent diners from photographing their dishes.
In part 2 I will look at food recipes. However, for now it’s important to mention that although a recipe may enjoy copyright protection, that protection simply enables the copyright owner to stop others making physical copies of the recipe. Copyright law does not prevent others from creating a dish by using the recipe. So, copyright in their recipes would not put chefs in a position to stop diners photographing their dishes.
Therefore, the best policy for restaurants who object to diners taking photos, is to do as one chef in the north of France did according to the BBC. That is, to introduce a “no camera” provision on their menus. After all, in many other industries such as kitchen design, shops are known to ask customers to refrain from taking photos of their displays. Restaurants could supply photos of their dishes for diners to post on social media. Then at least the quality objection would be dealt with.
In part 2 we will look at food recipes, and foods, and the extent to which IP rights such as trademarks, patents and know how, or industry norms come into play.