Originally published September 10, 2015.
Keywords; BGH, Copyright Infringement, Food Plating, Threshold of Originality
Taking pictures of food and sharing them online through social media has become a new cultural phenomenon. The trend has become so popular that entire blogs and YouTube channels are now devoted to food photography. A recently published article in the German Daily Newspaper Die Welt has, however, spawned some debate whether taking a picture of an elaborately arranged dish and posting it online might be illegal in the sense that it infringes copyright. According to a lawyer cited in that article, food arrangements are, in principle, copyrightble. If this was in fact the case, posting food images to social media without permission could constitute an unauthorized derivative use of a copyrighted work.
The assumption that elaborate food arrangements are liable to fall within the scope of copyright protection is based on some recent German jursidprudence. In its 2013 decision "Birthday Train" (Geburtstagszug), the German Federal Court of Justice (I ZR 143/12) lowered the threshold of originality traditionally required for obtaining copyright protection in the applied arts. Since that decision, the requirements to be placed on the copyright protection of works expressing both aestheticism as well as utilitarian aspects are no different from works of purpose-free art (i.e. museum type art), literature or music. The Court concluded that in order for works of applied art to be protected under copyright law, they require a degree of creativity that would allow the piece to be called an "artistic" performance from the point of view of a public open to art and sufficiently skilled in ideas of art. Consequently, the decisive question when judging copyrightability is whether an elaborate food arrangement came into being through personal intellectual creation (section 2 para. 2 UrhG).
A personal intellectual creation, in turn, requires freedom that the creator uses for expressing his creativity in an original manner. Even though, food is ultimately meant to be eaten, not all features of its appearance are dictated by its intended purpose. Rather, food arrangements may comprise elements that do not contribute to the utilitarian aspects of how food appears on a plate. For example, chefs can exercise a certain amount of freedom when it comes to choosing color combinations, along with textures, layering and placement. Because not all features of appearance are dictated by the utilitarian aspects of food design, elaborate food arrangements might constitute an original work, provided, they are perceived as artistic by the relevant public.
While the majority of everyday food preparations will most likely not enjoy copyright protection, the possibility may not be ruled out that, in limited circumstances, copyright may subsist in a food presentation or plating arrangement. Thus, posting photographs which merely depict artistic food arrangements without contributing an element of creativity on their own might infringe upon the exclusive rights of the copyright holder. It goes without saying, however, that it can be difficult to draw the line between an artistic dish and one that is simply well presented.
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