After the flurry of interest in food porn, consummated by Katposts here and here, it's not surprising that some of our more scholarly readers have taken an interest in case law from their own jurisdictions. This Kat, who is flying out to Amsterdam later today, camera at the ready, is therefore delighted to host this post from Dutch attorney Roland Wigman (Versteeg Wigman Sprey advocaten, here), who advises us on, among other things, a spot of prawnography:
Food, IP and 'dish photography': the Dutch position
The Katposts on food porn were published at a time when the Dutch IP lawyers were pondering over a court decision that granted copyright protection to a photograph of three shrimp on a dish (Goudzwaard v De Jong, District court of North Holland 22 January 2014). In that decision the judge followed the reasoning of the photographer that the required creativity ("persoonlijk stempel" which translates as 'personal mark') follows from the choice for three and not two, four or five shrimp, the choice for a square white plate, the angle of the photo, the lighting, the symmetry (the lines in the shrimps and the lines of sauce alongside them).
While that case was about copyright in a food photo, case law addresses wider IP issues too. Thus in 1999 the Amsterdam court of appeal had to decide (in the case Kremer v Erobaking) on, among things, copyright and design rights in 'erotic (birthday) cakes' (Court of Appeal Amsterdam 11 November 1999). Though the court accepted that there was a certain amount of creativity in the design of the cakes and that they thus were protected by copyright, Erobaking did not infringe that copyright.
Obviously less appealing to the IP lawyer was the case in which the Amsterdam Court of Appeal decided on the copyright protection of the appearance/design ["Jeeves, what is the word I am looking for?"] of chocolates (Da Vinci Bonbons v Spaargaren confiserie, Court of Appeal Amsterdam, 8 August 2002). In this case the court overturned the judgment of the district court in which copyright protection had been granted to the chocolates by Spaargaren -- not because the court found that the chocolates could not be protected by copyright, but because Spaargaren couldn't prove it was the author of the chocolates.
Here's a second ...
The recipe for a certain type of liquorice was the subject of a court case in 1990 (Van Slooten's Suikerwerkfabriek v De Faam, district court of Breda, 18 December 1990). The court noted that two manufacturers produced liquorice on the basis of similar recipes and denied copyright protection, not because a recipe could not be protected by copyright but because either (i) each of the two manufacturers developed the recipe independently or (ii) the recipes were built upon an earlier pre-existing recipe.
You will note that though the Dutch are not known for their cuisine, the IP aspects of their food and dishes have received the attention of their IP practitioners. Professor P.B. Hugenholz has written a great article on the subject in 1998 (Recept, gerecht en auteursrecht, in English 'Recipe, dish and copyright'). Hugenholz concludes that recipes should be denied copyright protection and that, if they are to be protected by IP, it should be underpatent law: a recipe is a 'mode de preparation'. Indeed (as cited by Hugenholz), the Dutch patent court did award a patent in 1947 (!) for the preparation of tomato-plum marmalade (though it is unclear to me whether it is a marmalade of tomatoes and plums or of plum tomatoes).
... and here's a third
Prawnography herePhoto of three shrimps by Herman Goudzwaard hereExamples of erotic birthday cakes here [Merpel doesn't know what they taste like, but can see that some are not in the best of taste ...]Da Vinci chocolates here
Shrimp in the plural: shrimp or shrimps, here
Famously photographed Shrimp here
Should cats eat shrimp? Find out here