Chili Peppers = Non-Functional Food

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.

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[1] 17 U.S.C. § 101.

Comparing Food and Music

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.

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[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.

NY Times Article from 2007

This article is a few years old, but deals with a lawsuit where New York Chef Rebecca Charles claimed intellectual property in her menu when another chef copied the concept for her restaurant. The case apparently settled out of court:

"In recent years, a handful of chefs and restauranteurs have invoked intellectual property concepts, including trademarks, patents and trade dress -- the distinctive look and feel of a business -- to defend their restaurants, their techniques and even their recipes, but most have stopped short of a courtroom."

Copyright and Recipes

One of the most common questions posed to me when I mention my interest in intellectual property law and food is whether recipes can be protected. As I mentioned in my last post, there are numerous examples of recipes that are protected as trade secrets. However, the downside to trade secret protection is that others can attempt to “reverse engineer” the recipe and are not liable for misappropriating that trade secret. On this point I have to admit that, as a culinary dunce, I do not know how easily or closely a master chef could successfully recreate another’s secret recipe, so perhaps trade secret provides adequate protection in the culinary arts. However, another downside to trade secret protection is that even if someone misappropriates a secret recipe, that person may be liable, but the culinary cat will be out of the bag (so to speak) and the secret is ruined. 

However, copyright law may could potentially provide stronger protection for chefs worried about others copying their recipes. But this raises the question of whether a recipe falls under what is known as “copyrightable subject matter.” The copyright statute spells out some things that are definitely copyrightable subject matter, including familiar examples like literary works and sound recordings. [1] The copyright statute also states that some things will are not protectable by copyright even if they are original works of authorship. This group includes ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries.[2] These things are not copyrightable no matter what form they take or how they may be embedded into an otherwise copyrightable work.[3]

Based on that list alone, one can easily argue that a recipe is simply a procedure or process, and is simply not copyrightable. The Code of Federal Regulations and the United States Copyright Office have both adopted this viewpoint. The United States Copyright Office has said that “mere listings of ingredients as in recipes . . . are not subject to copyright protection.”[4] The Code of Federal Regulations echoes the Copyright Office and expands on § 102(b) of the copyright statute by specifically stating that “mere listings of ingredients or contents” are not subject to copyright protection.[5] The combination of the statute, the C.F.R., and the Copyright Office makes a strong case against the recipes as copyrightable subject matter. But wait: There’s more!

The United States Court of Appeals for the Seventh Circuit heard a case in 1996 that resulted in “the most extensive discussion of the copyrightability of recipes by any court.”[6] In that case, the Seventh Circuit vacated the ruling of the district court, which had entered a injunction against the defendant “after concluding that recipes . . . are protectable under copyright law.”[7] The Seventh Circuit characterized recipes as procedures or processes, and noted that these generally fall under the purview of patent law, not copyright.[8] The Seventh Circuit also quoted David Nimmer, author of the well-known treatise Nimmer on Copyright to support its conclusion that recipes are not copyrightable.[9]

Then, in 1998, the United States Court of Appeals for the Sixth Circuit came to the same conclusion.[10] That case involved copying of the recipe and design (I’ll write about design issues later) for a particular chocolate truffle, and the Sixth Circuit basically compared the list of ingredients in a recipe to a statement of facts, which are not copyrightable.

As Christopher Buccafusco notes, all of these opinions rest on the assumption that a recipe, any recipe, is no more than an unoriginal list of ingredients and/or steps.[11] Surely this assumption is overbroad. Even a culinary dunce like me can imagine writing a recipe that involves the modicum of creativity necessary to invoke copyright law. Nonetheless, the current state of copyright law and jurisprudence in the United States holds the view that recipes are not copyrightable. The wonderful thing about U.S. law, however, is that it is constantly changing and being re-interpreted, and no legal rule is set in stone (unless you are Justice Scalia). Therefore, it is possible to image a way for copyright law to apply to food in various ways other than the recipe itself. In fact, a number of legal scholars and I have explored this very notion, and it seems there is opportunity for creative culinarians to afford themselves of copyright protection. But I am choosing to save that discussion for a later post.

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[1] 17 U.S.C. § 102(a).

[2] 17 U.S.C. § 102(b).

[3] Id.

[4] U.S. Copyright Office, Recipes, http://www.copyright.gov/fls/fl122.html (last visited Sept. 20, 2010).

[5] 37 C.F.R. § 202.1(a) (2009).

[6] Christopher J. Buccafusco, On the Legal Consequence of Sauces: Should Thomas Keller’s Recipes be Per Se Copyrightable?, 24 Cardozo L. Rev. 1121, 1127 (2007).

[7] Publ’ns Int’l, Ltd. v. Meredith Corp., 88 F.3d 473, 475 (7th Cir. 1996).

[8] Id. at 481.

[9] Id.

[10] Lambing v. Godiva Chocolatier, No. 97-5697, 1998 U.S. App. LEXIS 1983 (6th Cir. Feb. 6, 1998).

[11] Buccafusco, supra note 6, at 1129.

Terminology Pt. 2: Trademarks and Trade Secrets

Continuing the last post regarding patents and copyrights, here is a quick glimpse at trademarks and trade secrets:

TRADEMARK: A product word, name, symbol, sound, or color that distinguishes one good or article of commerce from others in the market by indicating the source of the good. Unlike patents, but like copyrights, trademarks do not need to be registered in order to provide the owner with rights. However, registration is advantageous. Trademark rights are also unique in that they can last indefinitely as long as the mark is used in commerce. You may have seem the symbol "™" or "®" next to a logo or trade name. These indicate, respectively, that the name or mark is an unregistered trademark, or registered trademark. Ownership of a trademark prevents others in the market from using a mark that is likely to cause confusion among consumers.

The U.S. Patent and Trademark Office also considers what type of product to which the mark applies. Thus, I probably could not get away with using the mark “Betsy Crocker” to sell boxed cake mixes through grocery stores, as this is too similar to Betty Crocker®. However, I could probably start a construction company called “Betsy Crocker” (or maybe even “Betty Crocker”) because that is a completely different industry. Trademarks can be very valuable to the culinary world, where use of proper quality ingredients is essential. Imagine being unable to select the right brand of chocolate or flour because two trademarks were so similar? What if they were drastically different in quality?

TRADE SECRET: The Uniform Trade Secrets Act defines a trade secret as “information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”[1]

To “boil” that down, a trade secret is nearly anything that adds value to a business because of its secrecy and is actively being kept secret. In the food world, perhaps two of the best-known examples of trade secrets are the formula for Coca-Cola® and the Original Recipe® for Kentucky Fried Chicken®. However, it is likely that nearly every professional kitchen and professional chef in the United States has one or two trade secrets, whether it is a secret recipe, secret preparation technique, or secret device.

Lastly, one major difference between patent and copyright versus trademark and trade secret law is that patent and copyright are strictly federal areas of law, whereas trademark law is a federal/state hybrid and trade secret law is state law only.

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[1] Uniform Trade Secrets Act § 1(4) (1985).