REVIVING THE GOAT: Copyrighting Creative Plating

REVIVING THE GOAT: Copyrighting Creative Plating

I. Introduction

Reminiscent of a bespattered Herman Nitsch painting, splashes of a red sauce emanate from a lamb chop in Chef Gaggan Anand’s dish “Who Killed the Goat?”. Set on a severe, square plate with raised, winged edges, the singed meat and blood-red splatters are a bright contrast. Though it presents only a few elements, the dish is visually striking. It is gruesome. Evocative of the killing process. Irreverent.

Despite being as creative as a sculpture or painting of the same design, there is currently no clear copyright protection for the artistic plating of Chef Anand’s dish. To qualify for copyright protection, a sculptural work must be “a work of original authorship fixed in a tangible medium of expression” that “demonstrates sufficient creativity, and contains artistic aspects that are separable from its utilitarian functions.”[1] Only one case has considered whether the artistic plating of food is eligible for copyright protection: Kim Seng Co. v. J & A Imports, Inc..[2] In that case, a Chinese-Vietnamese food supply company claimed copyright in a bowl of food as a “3-Dimensional sculpture.”[3] The food at issue was a “traditional Vietnamese dish” made of rice sticks, egg rolls, grilled meat, and other garnishes.[4] Ultimately, the court determined that the copyright claim failed because the dish was neither an original work of authorship nor fixed in a tangible medium.[5]

Kim Seng was wrongly decided. Originality and fixation should not be doctrinal barriers to extending copyright protection to the artistic plating of food.[6] Copyright for plating is consistent with both Congress’s statutory framework and the special place gourmet cuisine holds in society. In this paper, I focus on the Kim Seng court’s treatment of originality and fixation. I argue that the inability to copyright the underlying food items should not be a per se barrier to claiming original authorship because creative energies are inherent in arrangement of ingredients. Additionally, I explain that relying on the theoretical perishability of food items to deny copyright protection is misguided because perishability has no bearing on fixation. Because issues of copyrightability are fact-intensive, I rely on “Who Killed the Goat?” to provide concrete examples where necessary.

II. Is Copyright Protection for Creative Plating Desirable?

Before approaching the doctrinal issue, it is important to note why such protection is legally, culturally, and economically desirable. The legislative history of Section 102 of the Copyright Act suggests that lawmakers generally intended copyright protection to be malleable and responsive to evolving technological and creative expression.[7] The legislative notes state expressly that “The bill does not intend either to freeze the scope of copyrightable subject matter at the present stage of communications technology or to allow unlimited expansion into areas completely outside the present congressional intent.”[8]

The history and collaborative nature of culinary plating explains why plating is currently excluded from the Copyright Act’s broad mandate. The Copyright Act’s legislative notes acknowledge that copyright protection has evolved to protect “forms of expression which, although in existence for generations or centuries, have only gradually come to be recognized as creative and worthy of expression.”[9] This last acknowledgement is particularly compelling considering that “[i]n Western, and especially Anglo-American culture, gustatory pleasures have been consistently marginalized from aesthetic discourse and practice.”[10] That marginalization is likely responsible for the delayed recognition of chefs as individual culinary creatives until the nineteenth century, while other artists such as painters and poets established themselves during the Renaissance.[11]

It is also likely that chefs’ claim to individual artistic notoriety was stunted by the thoroughly collaborative context in which chefs develop their craft. Like fashion, innovative food is “often developed in a kind of ‘open source’ model.”[12] Cooks and sous chefs often learn the trade by gaining skills in a variety of restaurants, adapting and modifying techniques as they learn them.[13] In this way, innovative food also looks like “open source” software development, a creative product in which the courts have recognized a protectable copyright interest.[14] However, myriad instances of direct copying in cookbooks, all the way back to the fifteenth century, suggests that a “serious tension” has permeated and endured the culinary industry that pits “originality and creativity” against “tradition and authenticity.”[15]

But copyright law has evolved to include similarly collaborative mediums. The success of the “open-source” software development model indicates that chefs, like coders, are capable of building on “source code” recipes and dishes while observing boundaries and community rules about acceptable uses. And, more importantly, that success suggests that such a dialectical process can prioritize both economic protections for the copyright holder as well as good-faith efforts to improve on an existing idea for the greater public good, be it a better-functioning application or a tastier meal.

Even if copyrighting collaborative work is possible, should there be greater copyright protection for the artistic plating of food? The money at stake in a dish like “Who Killed the Goat?” compels a resounding “yes.” There is tremendous economic value in cooking and dining: about $1.2 trillion dollars, according to a 2011 report by the New York State Restaurant Association.[16] And the recent explosion of world-wide gourmet restaurants and a national obsession with beautiful food, as evidenced by the popularity of shows like Netflix’s Chef’s Table; Salt, Fat, Acid, Heat; and The Great British Baking Show could entice industry players to enforce their intellectual property rights.[17] If the huge economic value of the industry weren’t enough, prolific stories of copying are testing the community limits of the collaborative industry. For example, in 2006, an Australian and American chef squabbled when bloggers accused the Australian chef of stealing an idea without attribution or further development.[18] Though this example is overly discussed in the literature on copyrighting food, it is illustrative of the potential breakdown of community norms as the economic stakes rise.

III. Is Artistic Plating Sufficiently Original?

Turning a combination of ordinary elements into a copyrightable product requires originality.[19] For elements individually unprotectable to qualify for a copyright when combined, the “amount of creative input” required to meet the originality standard is neither high nor “negligible.”[20] In Kim Seng, the court stated that in order to be eligible for copyright protection, a grouping of unprotectable elements must be “numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.”[21] The Ninth Circuit has previously held that a selection of glass, a shroud, bright colors, proportion and orientation, and stereotyped jellyfish forms, when grouped together as a “jellyfish-in-glass” sculpture, “lacked the quantum of originality needed to merit copyright protection.[22] Similarly, a combination of ceiling lamp elements with a table lamp base did not meet the threshold.[23]

The Kim Seng Court found that plaintiffs’ “traditional Vietnamese dish” did not met the originality standard.[24] While Kim Seng asserted that the food combination and arrangement were “to be in a certain fashion out of infinite possibilities,” defendants J & A Importers, Inc. (“J & A”) responded that combining unprotectable elements did not meet the threshold.[25] The court agreed with J & A, reasoning that the food items were inseparable from their utilitarian function: to be eaten.[26] Citing the holding in Satava v. Lowry, the court found that no arrangement of unprotectable elements was protectable, and that “the unprotectable nature of the ingredients indicates a lack of originality.”[27] Extending his history of particular hostility toward protecting food, copyright expert Melville Nimmer has agreed that the Copyright Office could not register a “compilation of food” based on a selection, coordination, and/or arrangement of items on a plate, because food does not constitute copyrightable subject matter under Section 102(a) of the Copyright Act.”[28]

Cases since suggest that the Kim Seng Court approached the originality of the “traditional Vietnamese dish” incorrectly. Since the decision in Kim Seng, the Ninth Circuit has again considered whether “[o]riginal selection, coordination, and arrangement of unprotectible elements may be a protectible expression.”[29] In L.A. Printex, the court applied the extrinsic test in determining that “repeating patterns of bouquets of flowers and three leaf branches” rendered a floral arrangement original and thus protectable.[30] It stated that copyright law protects only protectable elements and explained that when conducting such an inquiry, courts distinguish protectable from unprotectable elements and “ask only whether the protectible elements in two works are substantially similar.”[31] Still, the court cited an earlier Ninth Circuit case which noted that while each musical note is not protectable, a pattern of notes arranged into a tune may be protectable.[32] Ultimately, it concluded that while the flower pattern in question had unprotectible individual elements, the original selection, coordination, and arrangement of such elements were together protectable because of the ‘wide range of expression’ possible in putting together such a pattern.[33] Furthermore, the court noted that there were “‘gazillions of ways’ to combine petals, buds, stems, leaves, and colors in floral designs,” compared to the few ways to, for example, paint a ball on a canvas.[34]

While the L.A. Printex court considered the question of unprotectable elements in the context of substantial similarity rather than originality, the reasoning applies nicely to the originality inquiry. Particularly convincing is the musical metaphor. As Professor Christopher Buccafusco noted in a foundational law review article about copyright protection for recipes, the compilation of unprotectible elements theory advanced in Kim Seng breaks down when applied to other media.[35] If courts broke down musical scores into their constituent parts in the same way that they have historically broken down recipes into their ingredients, the listing of instruments would be merely a statement of facts while the musical directions were simply process.[36] Whether it is refusing protection for a listing of facts or a group of unprotectable elements, the problem is the same: courts are refusing to consider the works as a whole.[37]

The logic stated in L.A. Printex holds here: there are a “gazillion” ways to arrange any set of food items and therefore dishes should be protectable.[38] “The creative energies that an author may independently devote to the arrangement or compilation of facts may warrant copyright protection for that particular compilation.”[39] The Supreme Court has similarly noted 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.”[40] While it is understandable for courts to deny copyright protection when they believe that recipes are just statements of facts, or bowls of food are merely groupings of unprotectable elements that “do not owe their creation to the author claiming the copyright,” it is clear that “Who Killed the Goat?” owe its creation, and its creative spark, to Chef Anand.[41] Of all the plate shapes, sizes, colors, and textures; of all the meats, poultries, or vegetables; of all the sweet, savory, and spicy sauces; of all the red, brown, yellow, pink, green sauces he could have chosen, he plated “Who Killed the Goat?”.

IV. Can a Plate of Food Be Fixed?

17 U.S.C. § 101 requires that a work be fixed to receive copyright protection: “A work is “fixed” in a tangible medium of expression when its embodiment . . . is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” In general, fixation “helps separate idea from expression and determine the ‘metes and bounds’ of creative expression.”[42]

In Kim Seng, J & A asserted that the bowl of food did not meet the fixation requirement because it was perishable and thus “inherently changeable.”[43] For guidance, the court looked to a Seventh Circuit case, Kelley v. Chicago Park Dist., in which that court analyzed whether an art installation garden was constitutionally “fixed.”[44] The Circuit court recognized the installation’s potential artistic value but ultimately found that “a living garden” was not sufficiently fixed for copyright purposes because it was inherently changeable.[45] And while the court acknowledged that fixation is broadly defined, it held that “the garden . . . ‘owes most of its form and appearance to natural forces’ and ‘is not stable or permanent enough’ to be a work of fixed authorship.”[46] Most importantly, the Kim Seng court noted that much like the garden was “inherently changeable, a bowl of perishable food, will, by its terms ultimately perish.”[47] Lastly, the court observed that if a living, self-cultivating garden was not sufficient to prove fixation, food, “which, once it spoils is gone forever” could not either.[48]

Scholars have taken issue with copyright’s limited protection of “conceptual art . . . that may be fleeting or time-limited.”[49] Works that are meant to change or decay seem to, on their face, fail the fixation requirement.[50] One scholar, Zahr K. Said, argues that courts have illogically excluded conceptual art from protection, despite recognizing fixation when particular kinds of change are so repetitive as to achieve permanence.[51]

Professor Said takes particular issue with the Kelley court’s fuzzy “inherent changeability” test as a proxy for fixation.[52] She points out that the test is overbroad: it doesn’t distinguish between intentional or accidental change, the kind of change, or whether the change was reasonably foreseeable.[53] Professor Said then observes that the Kim Seng court misapplied this fuzzy test by conflating perishability with inherent changeability.[54] And while Professor Said is not particularly enthusiastic about the copyrightability of food as sculpture (noting that it “seems like creative lawyering, to put it generously”[55]), her essay supports such creative lawyering in two ways.

First, Professor Said’s claim that an artists’ conceptual art is fixed when repetitively performed applies with equal force to chefs who plate the same dish over and over. It is likely that, in practice, a chef would not want to copyright one particular iteration of a dish; any serving of “Who Killed the Goat?” would not last the average four months it takes to process an internet-submitted copyright claim.[56] Instead, Chef Anand’s nightly plating of “Who Killed the Goat?” would likely “repeat [itself] over and over,” warranting the exact kind of protection that Professor Said describes as being so repetitive as to achieve performance.[57]

Second, Professor Said’s idea that “the first purposes of the fixation requirement lies in the use and enjoyment of the work by others” supports the notion that a dish is “fixed” when it becomes something more than just consumption.[58]Certainly, the success of shows like Netflix’s Chef’s Table[59] and the trend of posting food to social media proves that it exists long enough to be enjoyed by others.[60] Other scholars have supported this common sense view. In reference to the court’s reasoning about changeability in Kim Seng, one scholar noted “[t]hat an organic form will ultimately wither is irrelevant to whether it meets the definition of fixation.”[61] In reference to the same flawed reasoning, another scholar contended that “copyright protection does not degrade in conjunction with the degradation of its subject works.”[62] Much as fading paint would not invalidate the protection of a painting, the theoretical perishability of a plated dish of food should not be an obstacle to protection.

V. Conclusion

An artistically-plated dish is both a sufficiently original arrangement of objects and capable of repeated iterations that achieve performance. To receive copyright protection, a sculptural work must be original, fixed, creative, and separable from its utilitarian functions. In the only case to consider whether a specifically arranged dish of food was copyrightable, the court in Kim Seng declined to extend protection on the grounds that the dish was neither original nor fixed.[63] The Kim Seng court was wrong in finding no culinary dish could meet the standard of originality and fixation necessary for a copyright.

The court in Kim Seng left unanswered questions courts will need to grapple with when assessing future plating cases. The court only briefly reached the question of creativity, noting that while the selection of ingredients was dictated by the traditional dish, the physical arrangement was more than simply mechanical, likely meeting the low threshold needed to establish creativity.[64] The court never reached the question of separability. But Professor Christopher Buccafusco has noted that when considering separability, one could imagine dishes “whose aesthetic merits are separable from the basic need to provide calories.”[65]

I bring up unanswered questions not to delve into a discussion of separability, but to reflect on the central theme of this paper: food can be an artistic expression deserving of copyright protection. The court in Kim Seng made a mistake when it declined to find an arrangement of food as a work of original authorship fixed in a tangible medium. I suppose we know who killed the goat.

 

Jessica Ogden: J.D. 2020, UC Berkeley School of Law and California Law Review Vol. 108 Online Editor.

[1] Kim Seng Co. v. J & A Importers, Inc., 810 F. Supp. 2d 1046, 1053 (C.D. Cal. 2011) (citing 17 U.S.C. §101; Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991)).

[2] 810 F. Supp. 2d 1046 (C.D. Cal. 2011).

[3] Id. at 1050.

[4] Id. at 1053, 1050.

[5] Id. at 1055.

[6] I will not be focusing on the copyrightability of recipes. It is relatively well-settled that recipes are not entitled to copyright protection. See What Does Copyright Protect?, U.S. Copyright Office (last visited May 1, 2019), available at https://www.copyright.gov/help/faq/faq-protect.html [https://perma.cc/53D3-7XXG].; see also Tomaydo-Tomahhdo, LLC v. Vozary, 629 F. App’x 658, 661 (6th Cir. 2015) (holding that recipes are not copyrightable because the listing of ingredients is an unprotectable factual statement).

[7] H.R. REP. NO. 94-1476 (1976) (“The history of copyright law has been one of gradual expansion in the types of works accorded protection.”); see also Caroline M. Reebs, Sweet or Sour: Extending Copyright Protection to Food Art, 22 DEPAUL J. ART, TECH. & IP LAW 41, 50 (2016).

[8] H.R. REP. NO. 94-1476.

[9] Id.

[10] Christopher J. Buccafusco, On the Legal Consequences of Sauces: Should Thomas Keller’s Recipes Be Per Se Copyrightable, 24 CaRDOZO ARTS & ENT. L.J. 1121, 1143 (2007).

[11] Id. at 1144.

[12] Naomi Straus, Trade Dress Protection for Cuisine: Monetizing Creativity in a Low-IP Industry, 60 UCLA L. Rev. 182, 192 (2012).

[13] Id.

[14] Jacobsen v. Katzer, 535 F.3d 1373, 1381 (Fed. Cir. 2008).

[15] Buccafusco, supra note 10, at 1147.

[16] See Reebs, supra note 7, at 43.

[17] See Buccafusco, supra note 10, at 1122.

[18] Id.

[19] For a defense of food items as protectable, see Martha Pollack, Intellectual Property Protection for the Creative Chef, or How to Copyright a Cake: A Modest Proposal, 12 CARDOZO L. REV. 1477 (1990).

[20] Kim Seng Co. v. J & A Importers, Inc., 810 F. Supp. 2d 1046, 1053 (C.D. Cal. 2011) (citing Satava v. Lowry, 323 F.3d 805, 810 (9th Cir. 2003)).

[21] Satava, 323 F.3d at 811.

[22] Id.

[23] Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d 1140, 1147 (9th Cir. 2003).

[24] Kim Seng, 810 F. Supp. 2d at 1053.

[25] Id.

[26] Id.

[27] Id.

[28] 11 Nimmer on Copyright 312 (2019).

[29] L.A. Printex Industries, Inc. v. Aeropostale, Inc., 676 F.3d 841, 849 (9th Cir. 2012).

[30] Id.

[31] Id (citing Metcalf v. Boncho, 294 F.3d 1069, 1074 (9th Cir. 2002)).

[32] Id.

[33] Id.

[34] Id.; see also Diamon Foods, Inc. v. Hottrix, LLC, No. 14-CV-03162-BLF, 2016 WL 3880797, at *8 (N.D. Cal. July 18, 2016) (“If an idea can be expressed in a wide range of ways, the protection afforded to it is “broad” and a work will infringe if it is ‘substantially similar’ to the copyrighted work.”).

[35] See Buccafusco, supra note 10, at 1128 n.40.

[36] Id.

[37] See id.

[38] See L.A. Printex Industries, Inc. v. Aeropostale, Inc., 676 F.3d 841, 849 (9th Cir. 2012).

[39] Publications Intern., Ltd. v. Meredith Corp., 88 F.3d 473, 480 (7th Cir. 1996).

[40] Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991).

[41] See Buccafusco, supra note 10, at 1129.

[42] Megan Carpenter, Function over Form: Bringing the Fixation Requirement into the Modern Era, 82 FORDHAM L. REV. 2221, 2227 (2014).

[43] Kim Seng Co. v. J & A Importers, Inc., 810 F. Supp. 2d 1046, 1054 (C.D. Cal. 2011)

[44] Id. (discussing Kelley v. Chicago Park Dist., 635 F.3d 290, 303 (7th Cir. 2011).

[45] Kelley, 635 F.3d at 303.

[46] Id. at 304.

[47] Kim Seng, 810 F. Supp. 2d at 1054 (quotations omitted).

[48] Id.

[49] See, e.g., Zahr K. Said, Copyright’s Illogical Exclusion of Conceptual Art, 39 COLUM. J.L. & ARTS 335 (2016); Jani McCutcheon, Shape Shifters: Searching for the Copyright Work in Kinetic Living Art, 64 J. COPYRIGHT SOC’Y U.S.A. 309 (2017); Megan M. Carpenter, If It’s Broke, Fix It: Fixing Fixation, 39 COLUM. J.L. & ARTS 355 (2016).

[50] Said, supra note 49, at 335.

[51] Id. at 337.

[52] Id. at 343.

[53] Id.

[54] Id.

[55] Id. at 344.

[56] Registration Processing Times, U.S. Copyright Office https://www.copyright.gov/registration/docs/processing-times-faqs.pdf [perma.cc/MHM9-DX5G] (last visited May 1, 2019).

[57] Williams Electronics, Inc. v. Artic Intern., Inc., 685 F.2d 870, 874 (3rd Cir. 1982) (finding “fixation” where the “audiovisual features” of a video game are identically repeated each time a new game session begins).

[58] Said, supra note 49, at 339 (citing Laura Heymann, How to Write a Life: Some Thoughts on Fixation and the Copyright/Privacy Divide, 51 WM. & MARY L. REV. 825, 842 (2009)).

[59] Genevieve Van Hoorhis, When Will ‘Chef’s Table’ Return for Season 7? It Takes Time To Capture All That Tasty Goodness, Bustle (Feb. 22, 2019), https://www.bustle.com/p/when-will-chefs-table-return-for-season-7-it-takes-time-to-capture-all-that-tasty-goodness-15988094 [https://perma.cc/39KK-NJU7].

[60] See e.g., Jeff Elder, In Defense of Sharing Photos of Your Food on Social Media, HuffPost News (Aug. 26, 2013), https://www.huffpost.com/entry/sharing-photos-of-your-food_n_3818517 [https://perma.cc/93AY-JAVD].

[61] McCutcheon, supra note 49, at 313.

[62] Carpenter, supra note 49, at 360.

[63] Kim Seng Co. v. J & A Importers, Inc., 810 F. Supp. 2d 1046, 1055 (C.D. Cal. 2011).

[64] Id.

[65] Buccafusco, supra note 10, at 1139.

Recommended Citation: Jessica Ogden, REVIVING THE GOAT: Copyrighting Creative Plating, Calif. L. Rev. Online (May 2020), http://californialawreview.org/copyrighting-creative-plating.

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