20 March, 2018
Eating, in contemporary times, has escalated from being just a routinely activity to a wholesome and elemental experience. In order to carve through the rigorous competition in the culinary industry, chefs and restaurant owners are accentuating and adopting ingenious steps to enhance the overall experience of eating, for nailing its exclusive association with them. This includes devising an eye-catchy menu with out of the box names for various dishes, sophisticated yet mesmerizing interiors and more specifically a stunning presentation of food to leave a daunting impression on the diner's mind.
A striking presentation/arrangement of food is indeed a creation of human mind, involving the choice of color combinations along with textures, layering and placement. Several hours are spent by a Chef before the presentations of his signature dishes attain finality. Once stolen/reproduced, the exclusivity associated with a particular chef/restaurant might go downhill and can take a toll on its business, thanks to the multiple knock-offs available as a result. This may result in a dent on the creator's will to innovate, thereby making it all the more important to look for protection provided by the law to a produce of the creator's intellect.
The current IP laws in India do not specifically deal with the issue of protection of intellectual property created in the culinary Industry. Issues like the possibility of protection to recipes; restaurant decors etc. have for long formed a part of several debates but are yet to be acknowledged by the judiciary or the legislature. This article is a step in that direction and attempts to analyze, "Whether a chef/restaurant can protect its original presentation or plating of dishes under the Indian copyright law or trade mark law?"
The Copyright Law
In the Indian regime, copyright is a form of protection granted to the authors of original literary, dramatic, musical, artistic works, sound recordings and cinematograph films. The word 'original' has not been defined in The Copyright Act, 1957 ("the Act"), but has derived its connotation through case laws. It is largely understood as a work that 'owes its origin to the author'; the work must originate from the skill and labour of the author and must not be a copy of any other work. Another prerequisite of copyright protection is the fixation of work in a tangible form. Indian regime follows the fundamental rule of copyright law, laid down in Article 9(2) of Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and Article 2 of WIPO Copyright Treaty (WCT), 1996, that copyright does not subsist in ideas and only protects original expression of the ideas.
It is pretty clear that any drawing, painting or photograph of food or even sculpture made of food items should be protected under Indian copyright law. Thus, there isn't much debate regarding arts that use food as a medium, instead of bricks, stones, metals etc. Diverging from these traditional notions of art is the question whether the arrangement/presentation of food which is intended to be eaten can be considered for copyright protection? The first issue that surfaces while answering this question is, 'whether placing a dish on a plate in a particular manner could be considered an original work of authorship?' Plating a dish is a work of extreme precision where the right portions blended with the right colours are placed together to give the dish an aesthetic and visual value. It requires precise culinary skills, creativity and a definite amount of labour to put the items on a plate. Now, it is a matter of law that copyright can only be granted to works of literary, dramatic, musical or artistic nature. Plating of a dish is the chef's way of encapsulating his motivation behind the dish and expressing how he feels about the same. This makes presentation of a dish no less than a painting or any other original piece of art and for lack of a provision dealing specifically with 'plating', it could be understood as 'any other work of artistic craftsmanship' in accordance with Section 2(c)(iii) of the Act.
For a work to attain copyright, the second stumbling block is its fixation in a tangible medium. This is to prevent a person from attaining copyright on a mere idea. It has been argued that since a dish is meant to be eaten; it is perishable and therefore its presentation cannot be said to be 'fixed'. At this juncture, it is useful to refer to the cases of Kelley v Chicago Park District1 and Kim Seng Company v J&A Importers, Inc.2 The former is a leading case on copyrightability of organic works. Here, the issue before the court was whether an artistically arranged garden was "fixed in a tangible medium" for the purpose of Copyright. The court observed that the living garden lacked the stable fixation normally required to support copyright. Taking cue from this decision, the court in the latter mentioned case also held that a "food in bowl" sculpture created with perishable food is not eligible for copyright protection.
The above decisions seem to emerge from the fact that under US Copyright regime, 'fixation in a tangible medium' is an expressly provided requirement3 and a work can be said to be fixed if its copy is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.4 It must be noted, that there are no corresponding provisions under the Indian Act. Though the requirement of fixation is parallel, as copyright subsists in expression and not mere idea, the term 'fixation' has not been defined in such narrow terms. In fact, there is no definition of 'fixation' given under the Act. Therefore, under Indian regime, a broader interpretation of 'fixation' is conceivable.
Plating is an expression of a chef's particular idea to present the dish in a manner that enhances the overall experience of eating and brings out the natural flavors. The fact that the dish is intended to be eaten, or that the food by its very nature is perishable, does not mean that its presentation isn't fixated.
The presentation of a dish which is an original art work oozed out of the chef's intellect and which can be exactly re-created, can be said to be fixated. Hence, in case a question arises as to the copyright ability of a presentation of food, the court can find the presentation of food to be 'original work of authorship' and to be 'fixed in a tangible medium', and thus, copyright can be bestowed on the same.
Foodstagram
Another burning topic of discussion in the gastronomical kingdom is the contemporary practice of food photography. Social media websites are filled with photographs of food clicked by both professionals and amateurs. It must be noted that clicking photograph of a delicacy whose presentation embraces the chef's/restaurant's copyright may be argued to be an act of infringement as the same may be said to constitute reproduction of a three dimensional work in two dimensional form or storing of the work by electronic means[Section 14(c)(i)(A) and (B)of the Act].
The Trade Marks Law
A trade mark performs the function of distinguishing the products of one person from those of another, thereby creating identification for the source of products. With the surfacing of increased competition in the culinary market, it becomes necessary for chefs and restaurant owners to create identification and recall for their gastronomic delicacies among the consumers. A diner's/consumer's experience in respect of any food product is a harmonious melody played by the instruments of flavor, presentation and ambience wherein the rhythms generated by each individual component hold their respective importance. An arresting presentation plays a significant role in making a delicacy look appetizing and attracts consumers. If successful, the sublimity of the food presentations may create a recall effect in the minds of the consumers and they shall start identifying an offbeat presentation style with a particular chef or restaurant.
Under the Trade Marks Law, the right nail for striking protection for food presentations is trade dress. Trade dress law protects the different characteristics of visual appearance of a product. Presentation of a dish is thus protectable under trade dress law. There have been instances where trade dress claims have been enforced by chefs for food presentations. In 2007, Rebecca Charles, owner and executive chef of Pearl Oyster Bar, filed a trade dress infringement claim against her former sous chef (a chef who is the second in command in kitchen), Edward McFarland. It was alleged that McFarland's new restaurant, Ed's Lobster Bar, infringed Charles' restaurant's trade dress including the presentation of dishes. This case reached settlement with McFarland changing certain aspects of his restaurant and items on the menu.5
It must be remembered that any action based on trade marks law finds its feet in the likelihood of confusion or deception among general public and consumers. In N.Y. Pizzeria, Inc. v. Syal6, while adjudicating a trade dress infringement claim relating to plating methods the court observed that food plating may be protected under the trade dress law if it is distinctive and a party may be able to prove trade dress infringement if there is likelihood of confusion.
Proving likelihood of confusion in respect of food plating is a tough challenge, if not a Herculean task. When a consumer goes inside a restaurant to dine, it is not easy to prove deception in respect of the source from which the product plated on the table emanates. Even if the product plated in front of a consumer in Restaurant A looks identical to a product offered in Restaurant B, the consumer wouldn't be easily confused in to believing that the product was created by Restaurant B. In order to be successful in such an action for trade dress infringement relating to plating methods, the original chef/ restaurant shall have to at least prove that the consumers might mistakenly believe some kind of association between the offered delicacy by the defending chef/restaurant and the original chef/restaurant. Without other factors to support the trade dress claim such as restaurant décor, this would be a difficult feat to achieve especially for high end restaurants that are only patronized at unique locations. Nonetheless, highly commercialized restaurant chains with numerable franchises may be at a better footing for proving likelihood of confusion/association if the food plating styles are copied.
With the consistent mushrooming of the culinary industry, it becomes interesting as well as needful to explore the IPs vested in its various facets, including the food presentations. Where protection for recipes under trade secret law is vastly known, the domain of food presentations is a niche area awaiting an IP probe. This article is an earnest attempt to identify plausible protections; however, the picture shall become clear once judicial interpretations are extended on this subject.
Footnotes
1. 635 F.3d 290, 303 (7th Cir. 2011)
2. 810 F. Supp. 2d at 1053-55
3. Section 102 , Copyright Act of 1976
4. Section 101, Copyright Act of 1976
5. Powerful Katinka, Inc. v McFarland et al. 1:2007 cv 06036 (S.D.N.Y. June 26, 2007).
6. No. 3:13-CV-335, at *2 (S.D. Tex. Oct. 20, 2014).
For further information, please contact:
Aprajita Nigam, LexOrbis
mail@lexorbis.com
