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IS THE ‘ART’ OF FOOD PLATING COPYRIGHTABLE?

Introduction

The days when food was only seen as a means of survival, are far behind us. For a fortunate percentage of individuals across the globe, food represents much more. It fuels experiences, is a symbol of culture, and comprises a significant part of celebratory events. There exists a ‘live to eat’ spirit, and people associate food with feelings and identity. While the culinary industry has a lot to offer, this article will deliberate upon an issue in relation to the intricate subject of ‘food plating’ and its protection under copyright law. As a form of presentation or arrangement, it is certainly referred to as an ‘art’ in general parlance. However, the question arises as to whether it is recognized as an intellectual property, over which the chef would possess same rights as any other copyright owner. In this light, the author analyses the nature of food plating, whether it would suffice the requirements to attract protection under the Copyright Act, 1957, a comparative analysis with respect to the fixation provision under US copyright law and offers a brief analysis of the way ahead.

What Is Food Plating?

Food plating is the process of adding value to food, by arranging and decorating it so as to enhance its presentation. The arrangement is of importance to chefs on two accounts – personal and economic. Not only does it represent their creation, but boosts profit by giving them the extra edge, that arguably attracts more customers. The fear of copying is high because in this industry, chefs generally borrow and build upon ideas from others, thereby allowing enough room for derivative work. While concerns of copying the plating arise on a rather infrequent basis, it is interesting to analyze how Indian law would deal with the situation.

Protection Under Copyright Law

Work and Authorship

The Copyright Act, 1957 ensures certain safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity. As per Section 2(d) of the Act, an ‘author’ is defined in terms of the corresponding work, for e.g. in relation to a musical work, the composer is deemed to be the author. For the purpose of food plating, Clause (iii) of this provision would apply, which provides that in relation to an artistic work other than a photograph, the artist is the author. While the Act does not define an ‘artist’, Section 2(c)(iii) becomes relevant, which provides that any work of artistic craftsmanship is also an ‘artistic work’.

When identifying a plate of food as an ‘artistic work,’ a doubt regarding whether it is, in fact, artistic may arise. At this juncture, it is critical to understand that the element seeking copyright is its creative conceptualization, and not the food itself. The food is meant to be consumed and merely a utilitarian characteristic of the ‘work’. However, the artistic craftsmanship being referred to, is the style of plating – which is the outcome or expression of the chef’s artistic idea. Thus, despite the legislation not expressly dealing with the role of a chef, or his creations, it would be safe to assume that the above provisions would encompass them – the food being an artistic work, and a chef, its author.

Originality

Since it may be ascertained to be a ‘work,’ the next requirement is that it should be original. This is because Section 13(a) of the Act provides that copyright subsists in original artistic works. While the statute doesn’t define the word ‘original;’ precedent to apply and confirm the originality of a work exists via judicial pronouncements. Dismissing the ‘sweat of the brow’ and ‘modicum of creativity’ tests, both of which were found to be extreme, the test of originality follows the principle laid down in the case of Eastern Book Company v. D.B. Modak and Anr. It upheld the test of ‘skill and judgment with a flavor of creativity,’ which was. borrowed from the case of CCH Canadian Ltd. v. Law Society of Upper Canada. In accordance with such ruling, the parameters to be fulfilled include independent creation of work, exercise of basic skill and judgement by the author, and a minimal amount of creativity.

Tangibility and Fixation

Under Indian copyright law, as opposed to US copyright law, an express requirement of ‘fixation’ is absent. While the former demands that a work be tangible, it is to imply that copyright protection persists only in expressions and not the ideas itself. Though the term ‘fixation’ remains legally undefined, it can be understood as the requirement that a work must be ‘expressed to some extent in some material form capable of identification, and having a more or less perm

anent endurance’ – as put forth in the case of Canadian Admiral Corp. v. Rediffusion Inc.

Coming to the Indian context, in the case of In R.G. Anand Vs. Delux Films and Ors., the Supreme Court held that only original expression of thought or information in some concrete form can be protected under copyright law. Further, in Prestige Housewares (India) Ltd. & Ors. vs. Prestige Estate & Properties, the Court observed that an idea, however brilliant and clever, is nothing more than an idea. Until it is reduced into writing, or into a tangible form, copyright cannot subsist. However, there is no requirement beyond the threshold of a work being an expression, and not merely an idea.

Contrary to this, the US copyright law under Section 101 read with Section 102 of the Copyright Act, 1976, provide that fixation in a tangible medium' is a key requirement. What this implies is that the subject matter to be protected, must be visibly fixed – in permanency. In the instant context, the requirement is that the subject matter be stable and non-degradable so as to allow it to be perceived, reproduced, or otherwise communicated for a period of time more than transitory duration. Food, in all it plated glory, on the contrary literally ceases to exist once consumed and US copyright law disallows application beyond this line of thought, since there exists an explicit requirement of ‘fixation in a tangible medium’. Applying the same in the case of Kim Seng Company vs. J&A Importers Inc, the Court held that a ‘food in a bowl’ sculpture created with perishable food is not eligible to receive copyright protection. The medium is not ‘fixed’ because it cannot stay in that form forever and is, after all, meant for consumption. The understanding is that food literally transits to the table where it is enjoyed briefly before being consumed, and turned into mere caloric energy inside human bodies.

Since a parallel provision does not exist under Indian copyright law, it is also safe to assume that a food plating, which is artistic and original, can receive copyright protection.

Possible Roadblocks And The Way Ahead

Though the test of skill of judgement gives a fairly clear idea, its judicial application remains subjective. While subjectivity is arguably a factor in all cases to which the test applies, the culinary industry demands over-caution. The demand is on account of the nature of use of food, i.e. on a daily basis, and spread over institutions ranging from families to high-end restaurants. A balance must be sought between awarding a copyright and ensuring that general socio-economic rights are not disturbed. Take for instance, the case of a cheese-sandwich or a plate of chaat. The arrangement of the former is expected to be two pieces of bread with cheese in-between. In case of the latter, a mixed-smush of various components topped with sauces, forms the dish. If, in such cases, a person presenting them makes minute changes for which he receives a copyright, it will amount to unfair application.

In addition to the above, the principle of the Scène à faire doctrine can be applied to ensure that minimal or perceptible changes to a dish’s plating will not attract copyright protection. The doctrine provides that the inclusion of customary or mandated elements cannot be protected by way of copyright. The purpose is to ensure that a monopoly over ideas cannot subsist. For instance, the addition of vegetables to a steak dish is an ordinary practice and will be covered under this doctrine. In order that an arrangement or presentation may move out of the Scène à faire limitation, the expression must be novel and separate from the clichés of that particular genre. Thus, a well-scrutinized effort at determining the originality-cum-creativity of a food plating is ideal. In other words, a rarest of the rare approach must be followed.

Conclusion

At present, India does not have any specific provision in the Copyright Act or judicial decision to the effect of recognizing, whether or not, food plating is a copyrightable subject. With food increasingly being embraced as a piece of art, we may see a growing trend of chefs and restaurants using intellectual property laws more aggressively to protect the artistic presentation of their food. Essentially, chefs put in a large amount of thought, time, and creative effort into their endeavors because reputation of the restaurant can be said to be dependent on factors such as- the look and feel of the establishment, the taste experience (driven by produce and recipes) and the look of the dishes themselves (the plating).

Considering the requirements of getting a copyright under Indian law, the brief analysis suggests that copyrighting food plating is a fair possibility. It will receive protection on account of being an original artistic work, thereby providing chefs with the same economic and moral rights bestowed upon authors of other creations. In the absence of an explicit requirement of ‘fixation in a tangible medium,’ as is the case under US copyright law, food plating as an artistic expression will fall well within the ambit of Indian law. This will, in turn, encourage chefs and simultaneously enhance the dining experience for consumers.

After all, in the words of Justice Peterson - What is worth copying is, prima facie, worth protecting.

Title Image Source: About IP


This article has been written by Manvee Kumar Saidha. Manvee is a 4th year law student at School of Law, Christ University, Bangalore.