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Instagram, Food Porn, and Copyright Law

A German court has recently decided that taking photographs of your meal, a practice often referred to as food porn, may run afoul of a chef’s copyright in the food’s artistic arrangement. While that decision does not have a lot of practical impact on people stateside, looking at a similar situation under American copyright law can highlight some interesting copyright issues. However, it is important to note that there is no definitive court ruling that settles this issue in America.

Courts would likely be looking at two big issues when trying to determine whether a chef has a copyright in how they artistically arrange food. First, the courts would look to the basic copyright protection test, whether something is an “original work of authorship fixed in a tangible medium of expression.” Second, the court would have to analyze whether the fact that the food itself was a functional item rendered copyright protection impossible.

Qualifying for Copyright Protection

Qualifying for copyright protection has two steps. First, the work being protected must be an original work of authorship. Whether something is original is a low bar. It just means that it cannot be copied from something else, and it must have some minimal spark of creativity. This means that merely dumping some french fries on a plate would likely not qualify, but to the extent that a chef puts thought into arranging the food on the plate it will likely meet this part of the test.

The second step is the trickier one. A work must be fixed in a tangible medium of expression. This means that copyright does not protect ideas, only actually created physical works. Essentially, a chef seeking copyright protection for their food would have to argue that they have made a food sculpture, fixing their artistic idea in the medium of food. However, fixation requires a certain level of stability. It must exist for more than a “transitory duration.” It is not clear whether food plating, which likely only exists on the scale of minutes before being ruined by a diner’s fork, would clear that hurdle.

Separability

The other issue a chef would face attempting to copyright food plating under American law is that the food is a useful article. Copyright is designed to protect artistic expressions, not things that actually serve a utilitarian function, the domain of patent law. However, copyright can apply to the aesthetic elements of something that serves a utilitarian purpose, provided that the aesthetic elements are “separable.” Separability can be achieved in two ways. The first is physical separability, which is easier to understand. Things are physically separable when a person could physically split them apart and sell them separately, such as the hood ornament for a car and the car itself.

The second type of separability is conceptual separability, and it is the one that would likely apply to food. Things are conceptually separable when they can be identified and exist separately, meaning that the utilitarian function of the food, to be eaten, must be distinct from the artistic, sculptural part. Courts have been reluctant to find the aesthetic elements of food to be conceptually separable, but it is possible that a chef who focused more on the elements and made them a more central part of the meal could convince a court otherwise.

Copyright is a flexible discipline, with many creative applications. If you are involved in a copyright dispute and have questions about your rights, contact a Florida copyright lawyer at Pike & Lustig, LLP today.

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