"New Era of the Recipe Burglar"

[mame11]

I thought I'd post a link New Era of the Recipe Burglar from this month's Food & Wine magazine on DR.com as it addresses some of the issues that have come up in discussions on this board about the intellectual property rights that correspond to food. I look forward to everybody's comments.

[Jacques Gastreaux]

As near as I can tell, the article reaches no conclusions. As far as I can tell, food enjoys no intellectual property right protection. About the best a restaurant can do is to make each patron sign a confidentiality agreement upon entering. But the legality of that is uncertain.

[MC Horoscope]

Thanks for the link (and nice meeting you at the picnic). I haven't read it yet, but I will do so and comment. Intellectual property issues make for some great discussions.

I know that it's not food that can be copyrighted but "tangible expression" of a somewhat enduring nature. The natural process of digestion pretty much does away with enduring nature (ok, you try to phrase that in a delicate manner!). But a written recipe can enjoy some sort of intellectual property protection. The bar is very low for "creative expression," one of the criteria for protection. The phone book appears to qualify.

[Jacques Gastreaux]

The phone book appears to qualify.

The phone book (whitge pages) does not qualify. See the Feist Supreme Court case.

Also, under the copyright act, "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work." Sounds kind of like a recipe to me.

But, generalizations in this area of the law, like most, are unhelpful. What is meant by "intellectual property protection for food." Are we talking about recipes here? Or are we talking about what kind of protection, if any, a restauranteuer enjoys with repsect to the plate of food placed in front of a patron? The list of ingredients in a recipe are less likely to rise to the level of copyright protection than is the description of the process. But is the statement "bake for 1 hour at 350 degrees" an original work of authorship? When a server places a plate of food in front of a patron, some patrons might be able to figure out the process and duplicate it. Is that eligible for intellectual property protection? Likely not under copyright. Perhaps some other regime such as trademark or patent? Maybe, but it would be a stretch. Could someone claim that their "thick steaks" are their trademark and prevent others from serving steaks that are thick? I don't think so.

My opinon: Intellectual property protectioin for "food" is wishful thinking.

[youngfood]

My opinon: Intellectual property protectioin for "food" is wishful thinking.

Yes. Copyright is a likely loser for the originality and fixed requirements and the underlying policy goals of promoting progress & authorship, and fixation can be met via a writing or recording of the product, but that only protects the expression of the idea, not the idea itself. Patents too would be tough to get because the nonobvious bar is a good deal higher than the modicum of creativity bar that a copyright requires. The US rule giving the patent to the first to invent over the first to apply for a patent, would also likely lead to chaos and many failed attempts to obtain a patent by whatever chef would try to take advantage of its protection.

Trade secret might be a different story. One could well argue for a regulatory taking by being required to disclose their trade secret under state regulation. You could imagine a mandate the ingredients be disclosed and Coke claiming a regulatory taking of their trade secret. One could try to trademark a particular dish, but that's not really what I think of as IP protection for "food." See e.g. Walmart v. Samara Bros (2000), cf TrafFix Devices v. Marketing Displays (2001)(functionality as a complete defense to TM infringement). Of course, even with a secret wrapped up in a food product, if the secret is not well guarded or could be easily discovered via duplication, then it is unlikely to qualify for trade secret protection.

[DonRocks]

Click here for a previous discussion on taking photographs in restaurants.

[Jacques Gastreaux]

Yes. Copyright is a likely loser for the originality and fixed requirements...

Trade secret might be a different story. One could well argue for a regulatory taking by being required to disclose their trade secret under state regulation.

I agree that copyright is a likely loser but not for the originality and fixed requirements of the Copyright Act. I think it fails under Section 102b's prohibition on copyright protection for ideas, procedures and processes.

As for trade secret, I am unaware of any state regulation that requires disclosure as a prerequisite for trade secret protection. Quite the opposite: the sine qua non of a trade secret is that the owner takes steps to keep the secret, usually through confidentiality agreements with those to whom the secret is disclosed. But, it generally is real hard to keep a trade secret with regard to food being sold to the public. Coke and Frank Ruta's chicken are two exceptions to this general rule. The secret is out on mdt's terrine.

[youngfood]

I agree that copyright is a likely loser but not for the originality and fixed requirements of the Copyright Act. I think it fails under Section 102b's prohibition on copyright protection for ideas, procedures and processes.

As for trade secret, I am unaware of any state regulation that requires disclosure as a prerequisite for trade secret protection. Quite the opposite: the sine qua non of a trade secret is that the owner takes steps to keep the secret, usually through confidentiality agreements with those to whom the secret is disclosed. But, it generally is real hard to keep a trade secret with regard to food being sold to the public. Coke and Frank Ruta's chicken are two exceptions to this general rule. The secret is out on mdt's terrine.

You misundestand me on both points. Nonetheless we agree. Copyright plainly only extends to expression - whether you cite the Copyright Act or the Constitution. Any copyright would have to be for an expression - in the form of food that would most likely be a recipe, though not necessarily. An idea could only be protected as a trade secret or via patent procedure. Coke is an example makes clear that trade secrets can exist within a recipe. Trade secret does not depend on state regulation, of course. But state regulation could violate one's trade secret. A state regulation requiring disclosure of that secret would violate one's trade secret rights as a regulatory taking.

Regardless, there doesn't seem to be much of a future for IP protection in restaurants.

[MC Horoscope]

When we were discussing the issue of photographing in restaurants, the chef claimed it was the plated dish that was copyrighted. It wasn't the recipe that couldn't be photographed but the actual food. (Of course, she would want to protect the written recipe as well).

I don't think a plated dish would qualify for protection because it is not tangible enough, does not endure, will be consumed or else spoil. That's all I meant.

[Jacques Gastreaux]

You misundestand me on both points. Nonetheless we agree. Copyright plainly only extends to expression - whether you cite the Copyright Act or the Constitution. Any copyright would have to be for an expression - in the form of food that would most likely be a recipe, though not necessarily. An idea could only be protected as a trade secret or via patent procedure. Coke is an example makes clear that trade secrets can exist within a recipe. Trade secret does not depend on state regulation, of course. But state regulation could violate one's trade secret. A state regulation requiring disclosure of that secret would violate one's trade secret rights as a regulatory taking.

Regardless, there doesn't seem to be much of a future for IP protection in restaurants.

Depending on what you mean by "state regulation," trade secret protection is uniquely a creature of state law, as opposed to other forms of intellectual property protection such as patent, trademark and patent law which are federal. So far as I know, 47 states have adopted the Uniform Trade Secrets Act and it's adoption is pending in three other state legislatures.

I don't think a plated dish would qualify for protection because it is not tangible enough, does not endure, will be consumed or else spoil. That's all I meant.

The durability of the tangible medium in which the work of authorship is fixed is unimportant. One could carve a potato and claim that it was a sculputural work eligible for copyright protection. And with regard that particular potato, if the sculptor wanted to diplay it in a museum, it probably would be eligible under Section 102a5.

[MC Horoscope]

The durability of the tangible medium in which the work of authorship is fixed is unimportant. One could carve a potato and claim that it was a sculputural work eligible for copyright protection. And with regard that particular potato, if the sculptor wanted to diplay it in a museum, it probably would be eligible under Section 102a5.

This would be contested, I am sure, on the basis of the absurdities that follow. After consumption, one's waste would be a derivative work, to which the consumer held no rights.

[youngfood]

This would be contested, I am sure, on the basis of the absurdities that follow. After consumption, one's waste would be a derivative work, to which the consumer held no rights.

I don't think so. Fixed merely is a means to make clear the requirement of expression and that a mere idea cannot be copyrighted. See §101 of the Copyright Act : a work is “fixed” in a tangible medium of expression when ...sufficiently permanent or stable to permit to be perceived, reproduced, or otherwise communicated for more than transitory duration. As for absurdities, subsequent breaking down of a copyrighted work does not inherently qualify as a derivative work.

Moreover, even if the plate was not sufficiently fixed, a picture of it would be.

[crackers]

et voila. Can we move on now? Please?

This would be contested, I am sure, on the basis of the absurdities that follow. After consumption, one's waste would be a derivative work, to which the consumer held no rights.

[Jacques Gastreaux]

Well, at least it would make a good law school exam question.

[Heather]

This would be contested, I am sure, on the basis of the absurdities that follow. After consumption, one's waste would be a derivative work, to which the consumer held no rights.

Mario Batali is famously quoted that all his best work is, um, derivative work the next day. I assumed it was a show of humility on his part, not a warning.

[Waitman]

Outside of the legal arcana, the larger point is that this could not possibly have a beneficial effect for diners ( this is a food site, right?). Damping the free flow (ie pilferage) of ideas between chefs, putting lawyers on the payroll, providing incentives not to cook good food but to tweek recipes into something that can be copyrighted, in hopes that the royalties will come rolling in... I have visions of Zieboldt's lawyer calling Keller's lawyer every time they want to put a new plate on the menu at CityZen, just to make sure no copyrights were harmed in the preparation of that food.

[DonRocks]

The piccolo is exactly like the flute except that it is much smaller and is usually made of silver or wood. The pitch of the piccolo is higher than that of a flute.

Cheers,

Rocks.

[MC Horoscope]

The durability of the tangible medium in which the work of authorship is fixed is unimportant. One could carve a potato and claim that it was a sculputural work eligible for copyright protection. And with regard that particular potato, if the sculptor wanted to diplay it in a museum, it probably would be eligible under Section 102a5.

I think the durability issue is one of the keys. It hasn't often been adressed because there has seldom been the audacity to suggest copyright for perishables, as commonly understood. Someone at SCOTUS is bound to ask, "Would it be logical for us to set a copyright term of the lifetime of the author plus 75 years for something perishable like food on a plate? Don't all the other classes of works that can be copyrighted endure more than this?" I think durability would certainly be a key issue.

The copyright regime is largely based on the idea of land and its lasting quality, and its scarcity. We want to give some protection to intellectual things that last, so a regime was created to give ownership-like rights.

But I agree with the poster, would this be good for the industry? I doubt that it would promote creativity. Creativity abounds in the industry, regardless of copyright.

Credit where credit is due seems more like a plagiarism issue to me. I don't know.

[JPW]

I thought I'd post a link New Era of the Recipe Burglar from this month's Food & Wine magazine on DR.com as it addresses some of the issues that have come up in discussions on this board about the intellectual property rights that correspond to food. I look forward to everybody's comments.

Finally read this last night. What I smell is Fat Guy not making enough money from food and trying to pioneer a new area of law to pay the rent.

[Heather]

Finally read this last night. What I smell is Fat Guy not making enough money from food and trying to pioneer a new area of law to pay the rent.

Oh, I don't know. I think the molecular weirdos like Achatz and Cantu have a better case for copywriting their creations than the average chef. You're probably right about Shaw though.

[mame11]

The part of the article that interested me most was the discussion about patents and food. When I started practicing law (cough) ten years ago it was difficult to obtain patents. Now, for a number of reasons, obtaining a patent has become a formality (time and money). One of the concerns that I have about extending patents into the food industry is that the Patent Office has a number of issues and limitations in determining if something is really "new".

As to the copyright issues in food, there are some elements that are protected. Technically, a list of ingredients is not protectible (see the Feist case). However, a recipe including a description on how to combine the ingredients may be subject to a copyright if the description is original (if you write the description to the recipe as a poem). A collection of recipes is protectible under the copyright laws (that is, how you arrange your cookbook is subject to copyright protection).

But recipes are not "food" merely they are instructions on how to prepare food. The question the copyright section of the article seems to pose is whether or not the way food is plated a protectible interest under copyright law? As Jacque indicates this is an interesting law school exam question.

I do think that there are significant trade secret related issues in the kitchens of fine restaurants. The ability to enforce trade secret issues has been well established in the fast food industry. A restauranteur who goes to the appropriate lengths required to maintain trade secrets in the kitchen should be able to enforce his/her rights against third parties.

[DonRocks]

But recipes are not "food" merely they are instructions on how to prepare food.

A CD is not "music" merely a binary representation of data to be fed into a CD player in order to generate music.

Just a thought to keep you bored little doormice on your debative little toes.

[Jacques Gastreaux]

But recipes are not "food" merely they are instructions on how to prepare food. The question the copyright section of the article seems to pose is whether or not the way food is plated a protectible interest under copyright law? As Jacque indicates this is an interesting law school exam question.

But is there a serious question here? Is the selection of food items and their arrangment on a plate merely an idea? If it is, then there is no question that copyright does not apply. Copyright similarly does not apply to fashion or style, which, at the end of the day, is not that much different from food on a plate.

[B.A.R.]

All of you legal eagles are making me hungry. Anyone want to treat me to a big, fat, expense account lunch? I'll take the pictures.

[cjsadler]

Finally read this last night. What I smell is Fat Guy not making enough money from food and trying to pioneer a new area of law to pay the rent.

I finally read this too. From the article: "Shaw thinks this would spur creativity; if there's money to be made from new kinds of soup, then more chefs will make soup."

Seems like new soup creation has been doing pretty well on its own lately. At a time when culinary creativity seems to be at an all-time peak, the solution to the non-existent problem is copyright law?

[mame11]

A CD is not "music" merely a binary representation of data to be fed into a CD player in order to generate music.

Just a thought to keep you bored little doormice on your debative little toes.

The rights associated with the music that appears on a CD do not apply to the CD but to the underlying music. Therefore, it is not a copyright violation to resell a CD at a used store.

[Jacques Gastreaux]

A CD is not "music" merely a binary representation of data to be fed into a CD player in order to generate music.

Just a thought to keep you bored little doormice on your debative little toes.

Just like food is not a recipe, or vice versa.

[MC Horoscope]

What are the barriers to getting a patent for a newly invented dish?

It sounds like what they want is a patent. If you invent a new dish, brightened redfish, you want to protect it so that you have the sole (sic) right to make it, at least for a while, and maybe license others the right to make it or adapt it. Later, "ownership" expires and it becomes part of the public domain.

[Jacques Gastreaux]

What are the barriers to getting a patent for a newly invented dish?

It sounds like what they want is a patent. If you invent a new dish, brightened redfish, you want to protect it so that you have the sole (sic) right to make it, at least for a while, and maybe license others the right to make it or adapt it. Later, "ownership" expires and it becomes part of the public domain.

The beauty of a copyright is that protection attaches at the moment the work become fixed in a tangible medium of express, nothing else need be done; no applications no filing, nada. Patents, another story. Expensive and take a long time to obtain. While there may be legal barriers to obtaining a patent for some new cooking process, the practical ones make it not worthwhile.

[MC Horoscope]

The beauty of a copyright is that ...

Yeah, but the ugly side is the loss for the public domain. They really should have passed a private law for Disney et al. so that they could still cash in on Mickey Mouse, instead of gumming up the works for the entire copyright system with the Sonny Bono act and those impossibly long terms. Oh well, it didn't happen that way.

Anyway, are the practical barriers really that great? NCPinDC seems to suggest otherwise.

It would be a different world. If there had been a patent for blackened redfish, we might have all had to go down to KPaul's Kitchen to experience it! Some of the mutations of the dish that I have experienced would have likely never seen a menu in places like Riverdale. Ultimately a chilling effect, IMO. PS. Don't get blackened (or brightened) redfish in Riverdale, except at somebody's house!

A dish on a plate as a work of art enjoying copyright protection? Maybe. But I don't think that's what chefs want. They want their creations, new dishes, to have protection, or they at least want the credit.

[Jacques Gastreaux]

A dish on a plate as a work of art enjoying copyright protection? Maybe. But I don't think that's what chefs want. They want their creations, new dishes, to have protection, or they at least want the credit.

As I said before, intellectual property protection for food is wishful thinking. I don't see Congress enacting such a law.

[mame11]

As I said before, intellectual property protection for food is wishful thinking. I don't see Congress enacting such a law.

but food related intellectual property already exsists. That is patents can be granted for inventions that are new, not obvious and useful. Plenty of food related items can be protected by patents. (from packaging to preservation)

Plus, I think that it is completely reasonable for restaurants to enforce trade secrets the same way that other businesses do. In fact, as I stated earlier, franchises rely on trade secret law to enforce many of there rights against franchisees.

Many of you on the board have better insight into the character advocating a plenary session on obtaining copyright protection for food prepared in restaurants so I thought you'd enjoy the article.

PS: MCHoroscope, it was nice meeting you too this weekend.

[Jacques Gastreaux]

but food related intellectual property already exsists. That is patents can be granted for inventions that are new, not obvious and useful. Plenty of food related items can be protected by patents. (from packaging to preservation)

Plus, I think that it is completely reasonable for restaurants to enforce trade secrets the same way that other businesses do. In fact, as I stated earlier, franchises rely on trade secret law to enforce many of there rights against franchisees.

Many of you on the board have better insight into the character advocating a plenary session on obtaining copyright protection for food prepared in restaurants so I thought you'd enjoy the article.

PS: MCHoroscope, it was nice meeting you too this weekend.

I agree with you on the trade secret issue. If a chef wants to go through the trouble of keeping a secret he or she can do so and it will probably hold up in court if someone appropriates it. As to patents, I thought we were talking about chefs trying to claim intellectual property protection for their creations. Certainly patents can be obtained for new packaging and preservation inventions but that's not what we are talking about here. What we are talking about here is whether the guy that invented sous vide can patent the process.; that sort of thing.

[jwhite]

As I said before, intellectual property protection for food is wishful thinking. I don't see Congress enacting such a law.

Wishful thinking? More like a nightmare scenario for customers. Patent law would handcuff and stifle up and coming chefs while benefiting the established and wealthy (corporate backed).

[ol_ironstomach]

I dunno about you, but if they can patent financial strategies based on a fixed set of rules, then food recipes should be a walk in the park. If only there were a more substantial intellectual property equivalent of "you must be at least this tall to ride this attraction"...