“Wow, this arugula, golden beet salad with pecan dust and goat cheese mousse sure looks delicious. I’m guessing the world will think so, too!” Restaurant diner whips out smart phone, adjusts plate and table settings appropriately, and takes a series of pictures—with the flash, without the flash. Diner then opens Instagram, applies the appropriate filters and image adjusts, and posts with #foodporn. Seems all too common and altogether harmless, right?
Recently, several news stories—from the Eater to the New York Times—have covered disgruntled chefs and restaurant owners who’ve instituted photography policies or outright photo bans, many citing that it disrupts other diners, ruins the ambiance, or takes up too much time, thus lengthening wait times for those in line for a table. Others simply claim that the process of photographing food is simply too circus-like: “There are even those who stand on their chairs to shoot their plates from above,” reports the New York Times. “‘We get on top of those folks right away or else it’s like a circus,’ [Chef David] Bouley said.”
Out of these grievances has come one for the intellectual property (IP) ages: Sharing images of restaurant food online—or as I like to call it “foodporning”—infringes on the intellectual property rights of the chef. According to the Guardian, famed French chef Gilles Goujon told France TV that food photography shared online is essentially taking his IP. Such accusations have occurred here in the states, too. RJ Cooper, chef of Rogue 24 in DC, told Eater: “[Diners] publish food photos without your consent, which is taking intellectual property away from the restaurant. And also, generally, the photographs are terrible.”
Allow me to digress: If the photographs were phenomenal—perfect professional-level quality, would they care? It seems to me that it’d be great free advertising. And plenty of restaurants genuinely appreciate the free press regardless of photo quality. Anyway, back to the topic at hand.
Cooper continues in the Eater article, “If you're publishing something in a public forum without written consent, that's problematic.” But that leads me to wonder: is it actually problematic? The Guardian article quotes Justin Llewellyn, head chef at Laguna Kitchen & Bar: “‘Those chefs complaining about breaches to their intellectual property are fighting a losing battle. You can't copyright food or food ideas, and even if you could I wouldn't want to. Social networks are the new word of mouth. It's the new advertising.’” Well said, but is it accurate? While the Guardian seems to think so—“a plate of food is hard to substantiate as a protected ‘work,’ and while a chef may often be described as an artist, the profession does not enjoy such strong protection as those artists who wield paintbrushes.”—Oliver Herzfeld, chief legal officer at Beanstalk, doesn’t think the answer is so black-and-white. In a contributed article to Forbes, Herzfeld takes this opportunity to not only review US intellectal property laws, but also share his professional opinion on the foodporn-infringes-chef-IP debate. Here are the highlights:
- “Copyright law protects the expression of ideas in any tangible medium, but not the ideas themselves…courts have denied copyright protection to recipes, deeming them to be statements of an idea, procedure and process and not original works of expression.”
- That being said, “…the unique design of food creations and plating could be deemed legally protectable sculptures that are conceptually separable from the nutritional value, good taste and other utilitarian aspects of the underlying food itself.”
- “…the name of a chef’s signature dish could be registered as a protectable trademark and unique culinary creations and plating could be registered as protectable trade dress if they identify the chef as the source and origin of such products. However, in addition to identifying the source and origin of the owner’s products, trademarks and trade dress must also have distinctive character to be eligible for registration and protection.”
- “The question is should unique food plating be considered packaging or product design? The answer is not at all clear and could make a serious difference in the timing of legal protection available to a chef.”
- “To the extent a chef’s recipes remain a secret, trade secret laws could be effective in protecting them indefinitely. However, to the extent such recipes are disclosed to third parties in the absence of a non-disclosure obligation, the trade secret protection would be lost.”
Ultimately, Herzfeld’s point is that if chefs are concerned, they should seek legal counsel as there is a lot to consider and many steps to take. Wise advice, certainly, and it doesn’t just apply to chefs. Whether you’re an inventor, artist, or business owner, you have intellectual property.
What’s your opinion of #foodporning? It is free advertising, an annoyance worthy of anti-photography policies, or an infringement on the chef’s IP? Share your thoughts in the comments below.
Just like these chefs, it’s in your best interest to determine what your IP is and whether you’re protecting it wisely. Not sure where to get started?