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As part of our mission here at JETLaw Blog to bring you the latest in entertainment and technology-related legal scholarship, we will at times present previews of the pieces forthcoming in future issues of The Vanderbilt Journal of Entertainment and Technology Law.
Note Abstract: Should Copyright Law Prevent Culinary Piracy?
In the United States, dining has become an increasingly popular form of leisure and entertainment, generating an estimated $537 billion in 2007. However, dining represents only one aspect of the modern food economy; cooking and dining are regularly featured in newspapers and magazines, while celebrity chefs tout their own brands on television. Eating has been transformed from a mere perfunctory activity into big business.
Increasing competition for the attention and money of restaurant patrons has prompted chefs of grande cuisine to differentiate their menus by creating unique dishes. The time and labor that chefs sink into this form of innovation represents a substantial investment, and some have turned to the law to protect their original dishes from competing chefs. Yet, copyright law fails to protect chefs’ recipes from copyists. Historically, the law has viewed recipes as uncopyrightable subject matter because of their “functional” and “utilitarian” nature.
This note illustrates why, in today’s food culture, copyright law should embrace chefs’ innovative dishes as original works of authorship, amenable to copyright protection. First, the author describes the transformation of eating from a perfunctory activity into one done for entertainment and explains how this phenomenon created competition among chefs. Second, the author traces the current law on the copyrightability of culinary dishes and recipes. Next, the author discusses the legal, doctrinal, and sociological reasons why the law has not protected recipes as works of authorship in the past. Finally, the author argues that chefs’ original menu items, as expressed in recipes, should be considered copyrightable subject matter as works of applied art.
About the Author:
Austin Broussard (Class of 2009) is the Senior Notes Editor for the 2008-2009 JETL Editorial Board. He graduated from Yale University in 2006 with a degree in Political Science. Austin is from Bossier City, Louisiana and believes that Cajun and Creole cooking are forms of art.
Almost one year ago, I read the article in the New York Times that piqued my interest in intellectual property law and served as the inspiration for my student note, which will be published in the forthcoming issue of the Journal. I enjoyed writing the note because it combined my interests in copyright law with my hobbies of gourmet cooking and dining at grande cuisine restaurants (income permitting).
The note argues that because food-making has grown into big business, thereby creating increasing competition among chefs for the money of patrons, their unique dishes should be considered subject matter amenable to copyright protection.
With the success of restaurants depending on the originality of their menus, there is considerable industry pressure to innovate, and at times, indiscriminate chefs may “borrow” the culinary expressions of others without license. Usually, chefs handle unauthorized “borrowing” informally within the industry, preferring not to involve lawyers and intellectual property concepts.
But with so much money at stake nowadays (and maybe a possible television show or magazine feature too), some chefs aren’t willing to let the competition steal their new dishes. My note argues that copyright law should allow chefs to protect their culinary creations as works of applied art.
Since commenting on the Pearl Oyster Bar’s lawsuit against Ed’s Lobster Bar last year, the case settled out of court. Ed McFarland changed the decor of his bar as well as some of his menu items, while Rebecca Charles received an undisclosed settlement.
Interested in reading more? Look for Austin’s note in the upcoming Volume 10, Issue 3 of JETL.
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