One of the issues encountered when claiming that food is generally copyrightable is that the copyright statute specifically says that, within the category of pictorial, graphic, and sculptural works, anything that qualifies as a "useful article” is not subject to copyright protection. The definition of pictorial, graphic, and sculptural works in the statute actually says that such a work is protectable only if “the design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”[1]
This poses an issue because food, at a general level, is entirely functional. Whether it is providing calories or nutrients to the body, the food is serving some kind of biological or metabolic function from which any creative pictorial, graphic, or sculptural aspect must be separated. A chef would have to show that no nutritional considerations informed the creation of a dish (assuming that food falls into the PGS category) in order to sustain protection.
It seems that chili peppers are one ingredient that could help food over the “separability” hurdle for useful articles. I recently learned from Tuesday’s New York Times that humans are the only mammal that eats spicy hot chili peppers, perhaps because our species simply gets pleasure from the pain. The article states there are doubts surrounding claims about the beneficial effects of hot peppers. If these claims are indeed tenuous, then it may be the case that spicing up a food with peppers has no functional or nutritional purpose, but is entirely separable as a creative or expressive aspect of the work. Indeed, unlike some culinary creations, the intended emotive effect of hot peppers may be more transparent to lay persons like myself, getting around some of the problems discussed in my earlier post.
I would love to hear from any culinary experts reading this blog post as to whether any other ingredients exist that might be similar to peppers in that they (1) provide no apparent nutritional or caloric value and (2) can be easily shown to go towards the expressive content of food. Please comment.
