Many people may be under the impression that copyright law has always protected music. While musical works or compositions have been covered since 1831,[1] sound recordings were only brought under the umbrella of copyright in 1972.[2] Thus, sound recordings are an excellent example of the statute changing to protect a category of works that were not previously protected. I already discussed the fact that recipes are not protected in an earlier post. If one analogizes a recipe to a musical composition, and the food created from that recipe to a sound recording, one has a good argument (at a high level) that the copyright statute should be changed to also protect food, even if recipes remain unprotected.
But is this analogy between music and food both broad enough and deep enough to confidently say that food ought to be protected as well? This may not be the key question to ask in actually deciding whether food should be protected under copyright law. However, it does provide one lens through which we can look at copyright and food. It also seems a rather interesting lens.
In the introduction to his book, This Is Your Brain on Music, Professor Daniel J. Levitin makes the point that while most people do not need a technical knowledge of a subject matter to express their preferences in that subject matter.[3] He states that almost anyone can articulate their preferences in music without also being able to articulate the underlying technical reasons why they like that music, or why some music is more pleasurable than other music.[4] The same is likely true for other copyrightable subject matter such as pictorial, graphic, and sculptural works, or literary works. Prof. Levitin then states, for illustrative purposes, that he knows he likes the chocolate cake at one restaurant over the chocolate cake at another, but to explain why he likes the former better would require the mind of a chef.[5]
I thought this statement was intriguing because it supports the assertion that the perception of copyrighted works does not rely upon the technical understanding of the person perceiving it. Rather, the creativity and originality inherent in copyrighted works can be perceived without being understood. Arguably, there are fewer individuals within the population that understand the originality and creativity in a given food dish than there are that understand what makes a great song or great painting. And perhaps only the best-trained and most knowledgable chefs are actually capable of imbuing true originality and creativity into a dish. Regardless, the fact that humans can perceive the creativity and originality supports the argument that food could feasibly be included with current copyrightable subject matter.
Professor Christopher J. Buccafusco has also noted this parallel, and explored the difficulties of identifying creativity in food.[6] Prof. Buccafusco particularly points out that while “people may doubt that dishes are capable of emotional expression, [no one] would ever doubt that a piece of music expresses something.”[7] His statement highlights an important aspect of our copyright law; it simply requires that the work have some minimum level of creative (and original) content, but does not seek to identify what that content is. As a culture, we presume that all music expresses something, even if we cannot tell what it is, and no case has ever claimed that a piece of music lacked expression, yet we continue to protect music and sound recordings through copyright law.[8] Therefore, if we can agree that food, in some of its embodiments, demonstrates and possesses the creativity of the chef, why can it not be included as copyrightable subject matter?
One reason food may still be excluded is that we are not worried about an underproduction of food without offering the incentive copyright provides. We may need to worry about the innovation of grande cuisine, but it seems unlikely that food production will cease if copyright does not quickly offer protection in this area. Where society, and Congress, have no need to address underproduction or lack of innovation, it is unlikely to step in. The counterargument here is that much other creative work is carried out for incentives other than copyright protection and the monopoly profits it can provide. Think about people who paint or make music as a hobby, or amateur novelists. I suspect that culinary innovation is driven by factors other than the copyright incentive, which is why we see culinary innovation without copyright protection. Most culinary innovation is occurring in the kitchens of elite restaurants and training schools, where the incentive is either financial success (e.g., keeping the business open) or peer recognition. While copyright protection would likely help innovative chefs retain an edge over competitors, the as-yet absent application of intellectual property protection to food means the outcome remains only the result of thought experiments, rather than the real-world.
[1] 4 Stat. 436 (1831).
[2] Pub. L. 92-140, 85 Stat. 391 (Oct. 15, 1971) (prior to Copyright Act of 1976). The timing of covering sound recordings makes some sense considering that Edison's phonograph technology was not invented until 1877.
[3] Daniel J. Levitin, This Is Your Brain on Music: The Science of Human Obsession 10 (2006).
[4] Id.
[5] Id.
[6] Christopher J. Buccafusco, On the Legal Consequence of Sauces: Should Thomas Keller’s Recipes be Per Se Copyrightable?, 24 Cardozo L. Rev. 1121, 1135 (2007).
[7] Id.
[8] Id.
