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An Intellectual Palette Mix: Global Perceptions Of Copyright Law Surrounding The Modern Day Creative Culinary Industry

"The most important thing about intellectual property is that vs. creative expression is that copyright law was created not to stifle creativity but to encourage it."-- Shepard Fairey

Creative expressions are found in various things ranging from scientific inventions to business deals, but perhaps the most extensive usage of the term can only be found in art, where it finds its end and its beginning, its rise and descent and its true supremacy. Artistic works herein comprise a range of things, from varied graphic works to sculptures and architectural works. These works are accorded copyright protection under diverse copyright acts around the globe, provided that they fulfil the necessary criteria.

As a general rule, copyright here refers to property rights that give the author and their publisher's sufficient inducements to produce and disseminate original works whilst also allowing others to draw on these works in their own creative and educational endeavours[1]. In a rapidly globalizing world, this protection serves as a vital factor in ensuring delivery of justice when a piece of 'original' craftsmanship is infringed upon.

The food and service industry is one of the multiple industries that have encountered phenomenal growth in the ripple effect of advancement caused by the steadfast development of science and technology alongside inter and cross-cultural spread. Food being a daily essential, becomes a commodity that can hardly ever stop being good business, and as is the known fact, a growing business brings with it fortune as well as foes, thus making it require stringent protection.

In this light, a new dimension has opened up in the same known as "food plating", which poses a curious question to the law of whether the way food is plated can demand and attract copyright protection. The answer to this curious question can perhaps not be better answered than by drawing out a comparative study between the law of various jurisdictions of the world; in particular, USA, EU, UK and India.

Copyright Jurisprudence In The International Arena

In the USA, the Copyright Act of 1976 governs the sphere of copyright protection. The USA leads the jurisprudence in this sphere as their food plating is already accorded protection under the 'useful article' doctrine and is also considered a sculptural work, provided that the required features are identifiable, and are capable of existing independently of its inherent utilitarian aspects, are original and have a 'fixed' tangible medium. Further, design patents have also been successfully acquired for food plating arrangements for they are granted protection under design laws as well.

This gives affirmation to the logic stated in the L.A. Printex case, which held that there are a gazillion ways to arrange any set of food items and therefore, dishes should be protectable. This argument is further reinforced by the reasoning provided in Publications Intern., Ltd. v. Meredith Corp., "The creative energies that an author may independently devote to the arrangement or compilation of facts may warrant copyright protection for that particular compilation[2]."

In Feist Publications, Inc. v. Rural Tel. Serv. Co. it was held that:
[t]he vast majority of works make the grade quite easily, as they possess some creative spark, no matter how crude, humble or obvious it might be." This sheds light on the progressive nature of American legal jurisprudence in contrast to the other countries of the world.

Within the European Union, the copyright directive and international agreements like TRIPS and Berne conventions govern the copyright law. However, there is no EU wide definition of the term work, and the Berne convention is perhaps the only way to afford clarity by defining the probable literary and artistic works. The two typical ingredients for the same are: originality and expression.

However, in the Levola case, the CJEU held that said taste could not be protected by copyright because it is not identifiable with sufficient precision and objectivity. The court did not explicitly mention the fixation requirement, but such a finding may inevitably be interpreted as introducing a harmonized de facto fixation condition.

To establish whether a signature dish and or plating arrangement are protected by copyright under the EU standard, the only question is if it is the author's own intellectual creation? The concept is explained in several cases, but it generally means that the author expresses his or her creative ability originally by making free choices (not dictated by function or rules), resulting in a work that reflects his or her personal touch. Thus, if a signature dish and or plating arrangement met this criterion, it would be subject to copyright protection under EU law, without having any regard to its aesthetic merits.

The United Kingdom differs from the EU regulations by adding a third essential to the ingredients required to attract copyright protection, i.e., fixation in a tangible medium of expression. Thus, while the EU adopts a slightly liberal approach and accords protection to ephemeral works, the UK doesn't

An analysis of the established categories of artistic works under UK copyright law and the respective criteria for each category illustrates that signature dishes and plating could qualify as either paintings or sculptures but likely not works of artistic craftsmanship under section 4(1)(a) and (c) CDPA 1988, depending on the circumstances. It further proves that diagrams or drawings created by a chef during the creation process would also be possible subject to copyright protection under the same section. The copyright in these drawings would protect the author against copying the signature dish and or plating arrangement itself by another chef.

Most civil law countries meet the idea-expression dichotomy without the fixation requirement by giving literal meaning to the term 'expression'. They understand that 'expression' means to be perceivable and not necessarily to exist in a material form. Without the need to have fixation in a material form, the issue of transitory duration of work does not arise. Thus, courts have been liberal in recognizing copyright even over things such as perfume scents.

In Roberts v. Chanel, the French Court opined that the purpose for fixation is merely to serve as evidence in an infringement suit and is not a precondition for copyright to exist. Copyright in a work starts existing when it is expressed in a perceivable form. Going by this approach, food plating could be considered an expression of a chef's idea by virtue of being sufficiently perceivable despite its perishable nature, at least till consumption.

The creativity seen in today's culinary world was not previously foreseen making food, which was once a mere necessity become a delicacy and in the modern-day and age, transition to an experience! A brief look into laws surrounding food plating and its protection of three of the most advanced jurisdictions in the world gives one several perspectives on how the issue in question may be handled. Bearing this in mind, the diverse democracy of India becomes an eye-opener.

Copyright Jurisprudence In The Indian Regime

The Copyright Act, 1957 is the piecemeal legislation which deals with copyright protection in India. The copyright manual defines copyright as "as a form of protection provided by the Indian legislature to authors/ owners of original works of authorship from the time the works are created and expressed in a tangible form." In R.G. Anand v. M/S. Deluxe Films, the court held that the work which is to be given protections has to be present in 'tangible' form or should be capable of being touched. Thus the 3 essential elements for obtaining copyright protection are that: a) The object should be a 'work', b) It should possess originality and c) it should be in tangible or fixed form.

The copyright act defines the phrase work as "an artistic work comprising of a painting, a sculpture, a drawing (including a diagram, a map, a chart or plan), an engraving, a photograph, a work of architecture or artistic craftsmanship, dramatic work, literary work (including computer programmes, tables, compilations and computer databases), musical work (including music as well as graphical notations), sound recording and cinematographic film".

A reading of the above definition makes it clear that the definition of the term "work" is purposefully kept wide to accord protection to owners of original works, which in the long run acts as an incentive for individuals to delve in the field of creation of original works.

Artistic work is defined under section 2(c) of the copyright act. The SC while interpreting the said provision has held that "The definition of 'artistic work' has a very wide connotation as it is not circumscribed by any limitation of the work possessing any artistic quality. Even an abstract work, such as a few lines or curves arbitrarily drawn would qualify as an artistic work. It may be two dimensional or three dimensional. The artistic work may or may not have visual appeal." The Bombay HC in a case had held that the cartons in which medicine tablets are packed also qualifies as an artistic work.

The law in India does not define what exactly is originality and thus it was left open to judicial interpretation. The SC after a perusal of national as well as international authorities came to the conclusion that "the word 'original' does not mean that the work must be the expression of original or inventive thought. The Act requires that the work must not be copied from another work -that it should originate from the author; and as regards compilation, originality is a matter of degree depending on the amount of skill, judgment or labour that has been involved in making the compilation."

Having understood the criteria of originality and the object being a 'work', we now shift our attention to the criteria of fixation. The Indian copyright law requires that the work should be present in 'tangible' form. Going by the literal meaning of the term, one can infer that the work that seeks copyright protection should be present in physical form.

This inference is in line with the decisions of the Indian courts wherein it has been held that copyright protection is only accorded to the form, manner or arrangement of ideas or expressions. While on the face of it, there appears to be no ambiguity in the requirement of 'fixation' when it comes to Indian law, however the ambiguity (it) is visible when the principles are applied in the sphere of food plating.

Having understood the nitty gritty of the copyright law in India, we understand its application in the emerging sphere of food plating and decoration where chefs today are taking immense efforts to raise the bar of visual experience of their delicacies. From the exquisite White tuna poached in Olive Oil to the Gargouillou , chefs around the world have staringly increased the way food is presented and plated and this is so because, in the modern times, it is not only the taste but also the presentation which attracts a customer to try out a particular dish.

One of the primary requirements for attainment of copyrights is that food plating should come within the ambit of 'artistic work'. In the culinary industry, plating is always seen as an art form. It is the result of the application of a chef's artistic idea and his craftsmanship. Since the SC has already held that the term 'artistic work' should be accorded a wider connotation, in the present circumstances it is not wrong to say that food plating, in absence of specific provisions would qualify as an artistic work under section 2(c) of the copyright act.

Having established food plating as artistic work, the next step is to see whether it qualifies the test of originality or not. The copyright act does not delve on the parameters of originality and it was left up on the courts to interpret it. The SC adopted a common path between the two extreme approaches of "sweat and borrow" and "modicum of creativity" and instead adopted the test of skill and judgment with a flavour of creativity.

Another doctrine which should be looked in this regard is the American doctrine of Sc�ne � faire, which stipulates that certain theme cannot be copyrighted as they are typical to a particular genre. However, when the expression departs from the cliches of the genre, it moves away from the scope of the doctrine and entitles itself to copyright protection. For instance, a normal Indian thali cannot be accorded copyright but the special thali at Delhi's Ardor 2.1 could be given a copyright.

It is the final criteria of 'fixation' which seems to be the area of concern. As already explained above, in the Indian context, there appears a slight ambiguity as the act is silent on what exactly is 'fixation' and the manual states that the work should be present in tangible form. If we look at the American statute, it clearly states that the work should be permanent for more than a transitory period. Following this, the American court has held that food in bowl is not eligible to receive protection.

If this principle is followed in the Indian regime, then food plating fails the requirement of 'fixation' as it is not 'permanent' and is only present for a transitory duration. However, there exists no such provision within the Indian regime and thus, in the absence of one, it can be inferred that food plating/decoration passes the requirement of fixation.

The primary goal of copyright jurisprudence in any nation is to bolster creativity amongst individuals. A comparative analysis between the Indian copyright regime with that of the western jurisprudence showcases that while in India, there are no explicit principles to say whether food plating can be given protection or not, from the analysis shown above, it becomes clear that it can become a subject of copyright protection in India.

With the advancement in the sphere of intellectual property, and with its interplay with fields like food plating, it is not far that the Indian courts too shall have a case regarding copyright infringement of food presentation and in such a situation, not only the courts, but also the law makers should look at the western jurisprudence to pace up the existing copyright regime of our country.

  1. Paul Goldstein, Copyright: Principles Law and Practice (1st vol., Little Brown 1989)
  2. 88 F.3d 473, 480 (7th Cir. 1996).

Award Winning Article Is Written By:
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  2. Ms.Diya Vanzara
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