India: Intellectual Property Protections And Food Plating

Last Updated: 24 June 2015

Article by Vaibhavi Pandey & Surbhi Singh1

"What is worth copying is prima facie worth protecting- Petersen J.2"

There was a time when the term cooking was considered to be generally restricted to the kitchen of a house. However in today's scenario, the growing restaurant industry, food blogs, mobile applications, food channels, programs, competitions (like Master Chef) etc, have given a new dimension to the cuisine/ food industry. Further there has been a long practice and culture of exchanging and sharing recipes and techniques prevalent in the cuisine industry. However in current times culinary skills are not just confined to mere preparation or cooking of a dish, it further includes the manner of presentation, arrangement, or appearance of their food, sometimes referred as plating of dishes. Especially in the arena of restaurant industry a lot of emphasis laid on the art of plating. Better presentation of the dish helps in influencing the taste of the dish, creating a unique and special dinning experience, which increase the demand of the dish and consequently leads to more profits.

Such growth and transition in the sphere of food biz has lead to an urge for raising questions as to the protection of the original artistic work of a chef/ creator. Whether the artistic plating of a dish by a chef (who is the original creator) can be offered protection under intellectual property rights?

PROTECTION UNDER COPYRIGHT

Plating of dishes as artistic work:

Section 13 clause (a) of the Copyright Act, 1957 (further referred as the said act) provides that copyright subsists in original artistic works and further section 2 clause (c) provides that artistic work means-

1. a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality;

2. work of architecture; and

3. any other work of artistic craftsmanship;

It is very common in restaurants and other dining places that fruits, vegetables and food products are used to make various patterns/sculptures/ mosaics etc. food is used as a medium to create works of art. At many high ended or top grade restaurants, food is intricately created and designed and placed with artistic precision and perfection on each plate before being delivered to the customers. Colour combination along with the contrasting textures, layering, and placement, are used artistically by the chefs to create/plate a dish.

TEST OF ORIGINALITY:

Clause (a) of section 13 protects original work. A work to be original, it is important that it should not have been copied from another work.3 Every literary or artistic work, to be afforded protection, should be "original" under the Act.4

The word "original" does not mean that the work must be the expression of original or inventive thought. Copyright Acts are not concerned only with the originality of ideas, but also with the expression of thought. Further Supreme Court in the recent celebrated case of Eastern Book Company v. D.B. Modak 2008(001)SCC0001 has discussed in detail the "Originality Test" and adopted the Indian-Canadian test of "skill and judgment with flavour of creativity". Hence while considering whether a work is an original work or not following parameter have to be fulfilled :

1. the work must be independently created5

2. skill and judgment exercised by the creator

3. minimal amount of creativity

In case of platting, a chef has to exercise his culinary skills, judgment and labour in creation of textures, patterns, layering, placement etc, which are required for the purpose of plating a dish. As per my view plating also involve a flavor of creativity. Platting is medium where by a chef put forth his creative thoughts and expression with help of different colours, patterns, placements, shapes. In fact different plates/ cutleries are used by chefs to give a dish a unique and different look, which certainly involves minimal amount of creativity. A chef has a way of presenting a dish in which he puts his expressions.

Furthermore another essential requisite for an artistic work to get a copyright protection is that it must be in a tangible manifest. In R.G. Anand Vs. Delux Films and Ors. AIR1978SC1613, it was held by the apex court that only original expression of such thought or information in some concrete form is protected. Moreover in the case of Prestige Housewares (india) Limited & Anothers Vs. Prestige Estates and properties& other, 2001(25) PCT108 (karn) at p.120, it was held that:

If the idea, however brilliant and however clever it may be, is nothing more than an idea., and is not put into any form of words, or any form of expression such as a picture or a play, then there is no such thing as copyright at all. It is not, until it is reduced into writing, or into something tangible form, that you get any right to copyright at all, copyright exist in particular form of the picture by which, the information or the idea is conveyed to those who are intended to read it or to look at it.

A dish when presented or plated in a particular manner although it is meant to be eaten and it will cease to exist, however it will usually exist long enough to be considered that it has a concrete/ tangible form. It has a distinct shape, pattern, design which is easily visible. A dish is given a distinct look and appearance by the chefs using innovative ideas and techniques while plating a dish. Therefore a dish presented by a chef in a particular manner can be said to have satisfied the test of tangible form.

Further it is pertinent to point out that in case of Barbour v. Head 178 F. Supp. 2d 758 (S.D.Tex.2001) United States District Court, S.D. Texas, Galveston Division, it was held that- noting that although recipes that are "nothing more than mere recitations of facts" in the form of "mechanical listings of ingredients and cooking directions" are not eligible for copyright protection, "at least a few" of defendant's recipes" contain statements that may be sufficiently expressive to exceed the boundaries of mere fact," such as anecdotal language and suggestions for food presentation.

Also in case of Publications INT'L., Ltd. vs. Meredith Corp.,United States Court of Appeals, Seventh Circuit, 88 F.3d 473 (7th Cir. 1996), The court refused to hold that recipes are unprotected as a matter of law and instead recognized that certain recipes may be copyrightable. The court elaborated that recipes may warrant copyright protection in a variety of circumstances, such as where the recipe includes "suggestions for presentation, advice on wines to go with the meal, or hints on place settings with appropriate music,"

At present we do not have any specific law or ruling in regards to the protection of artistic work involved in a plating of a dish. However with the food increasingly being embraced as a piece of art there may be a growing trend for chefs and restaurants to use intellectual property laws more aggressively to protect the artistic presentation of their food.

Further looking at the ongoing trend of celebritization of chefs, the success of reality TV cooking competitions and obsession of high ended food among the people, it can be said that the culinary industry is growing rapidly and consequently leading to existence of competition among chefs and restaurants. The reputation of the restaurant can be said to be dependent on these major factors which are- the look and feel of the establishment, the taste experience (driven by produce and recipes) and the look of the dishes themselves (the plating). Therefore the chefs put in huge amounts of creativity and time into their endeavours. We have a great example of designer cakes, available these days in market which are crafted beautifully by the chefs and have unique designs, shapes and patterns. It involves huge amount of creativity, effort and investment while designing such cakes and finally presenting it and it would be asking too much from them to take copying of their work as a compliment, particularly when it dilutes their profit.

CONCLUSION:

Therefore in view of the above submissions it is sated that the plating of dish is no less than an art. A chef uses the plate as a canvas and fills colour in it by using food products of different colour, textures, shapes patterns etc. He gives a concrete shape to his ideas, thoughts, and imagination, which does involve an element of creativity. There by making it a subject matter fit for protection under copyright.

Footnotes

1.Intern; 5th Year Student, Amity Law School

2. University of London Press Limited v University Tutorial Press Ltd (1916) 2 Ch. 601

3. University of London Press, Ltd. v. University Tutorial Press Ltd. [1916] 2 Ch. 601

4. Mattel, Inc. and Ors. Vs. Mr. Jayant Agarwalla and Ors. 153(2008)DLT548

5. Feist publication inc vs Rural Telephone Service Co.Inc. 499US 340

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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