Chefs take issue with "food porn", but what does IP have to do with it?

The wonderful tagliolini truffle pasta
at Osteria dell'Arancio in Chelsea -
an AmeriKat favorite

The AmeriKat does it. The Amerikat's friends do it. And she suspects that you, dear readers, have the occasion to partake in it as well. It, is what is colloquially referred to as "food porn" - the salivating over restaurant menus online in preparation for a meal and then, depending on your social media connectedness the proverbial Instagram shot of what you are about to devour.

One would think the broadcasting of delicious delicacies by diners would be welcomed by chefs and restaurateurs as free advertising of their wares. Not so. France TV Info reports that Gilles Goujon, who operates a three-starred restaurant called L'Auberge du vieux puits in the south of France declares that such activities are not only poor etiquette (fair enough) but, when his dishes appear online, it takes away "a little bit of my intellectual property". The BBC reports that another chef in La Madelaine-sous-Montreuil in the north of France has also inserted a "no camera" provision on his menus.

Before anyone makes a casual statement along the lines of "Of course it would be a French chef who would complain", the AmeriKat points you to a 2012 article published in Eater where several chefs of many origins were interviewed about the use of photography in their restaurants.  RJ Cooper of Rogue 24 in Washington felt that the publication of photographs of food without his consent was the "taking of intellectual property" from the restaurant.  And besides "the photographs are terrible". When asked to elaborate on the intellectual property point, he responded:

"If you're publishing something in a public forum without written consent, that's problematic. I want the photos to represent the standards of the restaurant. If I post a fuzzy picture from Schwa, for example, I don't think it would be right to spread that. It's a generation now of instant gratification with the smart phones — we had a guy in here with a tripod last week! It's just food.

It also makes it a longer dining experience. If you come here and have the 24-course menu, and we put out eight dishes per hour. But if it takes you three minutes per picture, it's an extra 72 minutes on the dining time. That's half a turn that I'm losing on a two-top — $200. 

We've been discussing finding a way to send people pictures of every dish on the menu to the guests when they come in."

Unlike the truffle pasta, her every day food is nothing
to write home or Instagram about.  

Last week's report was not the first time that the protection of a French chef's IP has entered the IP protection debate. Last summer, fellow friend and Kat Neil, published this article on a study authored by Eric von Hippel and Emmanuele Fauchart entitled "Norms-Based Intellectual Property Systems: The Case of French Chefs" (found here). According to the study the French chefs considered that their recipes were "a very valuable form of intellectual property", but there was no way of protecting their works into the established IP categories of protection. The result of the study was a "norms-based" IP system, which operates on whether social norms held in the community lend themselves to the creation and protection of rights for socially-deemed valuable creations. The IP protection devised in this system were as between operators at the same commercial level (i.e. chef on chef) copying the recipe.  To quote Neil's summary:

i) a chef must not copy exactly an innovative recipe created by a colleague; (ii) if a fellow chef discloses recipe-related secret information, the recipient will not pass on the information without permission of the disclosing chef; and (iii) colleagues must give credit the developers of significant recipes. Failure to adhere to these norms will lead to informal means of enforcement such as withholding information to the miscreant chef.

However, seemingly absent in this conversation is the interaction of those further down in the supply chain, namely customers, with the finished work.  Admittedly, the immediate gut reaction to Goujon's claim of intellectual property infringement by customers photographing a dish is "Seriously!?"  Not only is there no protected work or article, but where is the infringement?  But, perhaps this type of question is exactly what Sunday evenings are made for - so let us ponder.....

It looks good, but don't you dare
take a photo....

If plates of food are going to be protected in any country, surely it would be France where the chef is, like his paintbrush wielding cousin, also considered an artist with surely as strong a claim to IP and moral rights protection ["They do not call it culinary arts for nothing", muses Merpel]. But what is the protected work? In the UK, a plated dish could be protected as an artistic work in the form of a sculpture.  But then there is that pesky permanency and fixation requirement under UK and US law which acts as a prerequisite for protection.  Could it be considered a work of artistic craftsmanship - or will the utilitarian purpose of the plate of food which is created for the customer to consume be the nail in the coffin? What about the "schmears" of purées that are used to paint the plate, surely those are just effectively edible paints on a porcelain canvas?  Let them dry a bit and surely they are as fixed as any paint on a canvass?  But can it be said that such schmears are the chef's own intellectual creation (i.e. do they satisfy the originality test?)

Also remember that those arguably artistic works are applied more than 50 times (or so the chef should hope if he wants to keep his restaurant open).  So, repeal aside, would Section 52 of the Copyright Designs and Patent Act 1988 be in the mix? And then there are the potential complexities of qualification requirements for copyright protection.  But if the food and plating of the food is all too utilitarian for the likes of copyright, perhaps the definition of design rights  (i.e. the shape and configuration of an article) would save the day?  However, isn't the making of a recipe and plating of the food excluded as a method of construction?

And what about infringement?  If the dish is protected by copyright then the taking of the photograph would be fairly straightforward.  However, if protected by design, the taking of the photograph is not making a product to the design (i.e. the recipe), just the outcome of that recipe (i.e. the design of a product) which under the norms-based model explored by von Hippel and Fauchart would not be infringing.

Apparently there is a formula, so
how could there be copyright subsistence?

Even if there was IP subsistence, arguing infringement would be difficult as there surely would be fair use and fair dealing defences (for the purposes of review, for example).  Indeed, some chefs credit the taking of photographs as promoting further creations and the prestigious chef, Michael White, states that chefs are likely upset because they "think someone will steal their ideas or something like that.  But you have to realize that everyone learns and borrows from everybody else."

Having read several interviews with chefs on their position of taking photographs of their food, the common thread really is not the intellectual property point, but the poor reproduction point.  Martha Stewart, the doyenne of everything domestic, recently came under fire for posting unappetising photographs of otherwise appetising food (thanks to a high flash on her camera, most likely).  Similarly, French chef Daniel Bouloud in the Eater article stated that the principle reason for the initial objection to photography was that "we were disheartened to find not very appetizing photos of partly eaten food online".  If the harm is not in the taking of a property right without permission, but the misrepresentation of that property right, IP protection would never really be the appropriate right or remedy (irrespective of the subsistence and infringement problem).  So where in law would disgruntled chefs go?

Admittedly this article is just a bit of fun - some Sunday night food for thought, you might say.  But the AmeriKat invites the Kat's ever creative readers to devise equally inventive answers for the reported problem of "food porn" for chefs.

The AmeriKat sends a Kat pat to Andrew Waugh QC (Three New Square) for bringing this story to her attention.