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Last Updated: 22 August 2023
Joshua Williams Memorial Prize Essay 2020
185
Joshua Williams Memorial Prize Essay 2020
Copyright in Culinary Works:
Can the Copyright Act 1994 Accommodate Culinary Creations?
Roscoe Moore*
The fine arts are five in number, namely: painting, sculpture, poetry, music, and architecture – the principal branch of the latter being pastry.
– Marie-Antoine Carême1
I Introduction
In recent years there has been a sustained interest in seeing intellectual property protections make their way into the kitchen.2 Culinary creations that please both the eye and the palate can generate their authors considerable commercial success and widespread reputational acclaim. Yet unlike other artists, chefs have a limited ability to guard against the plagiarism of their creative works. Traditionally the culinary industry has operated in an intellectual property (IP) negative space. It is a creative realm not materially covered by law. While a range of legal protections for chefs have been mooted, this essay focuses only on the application of New Zealand’s Copyright Act 1994 (the Act) to a culinary work. It considers whether copyright can subsist in creatively designed food intended to be eaten.
* Law Clerk, Hudson Gavin Martin. With thanks to Professor Shelley Griffiths for her helpful comments and guidance during the production of this article.
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Copyright is a property right conferred by statute alone.3 The Act mandates three requirements for the presumption of protection, and in turn, grants exclusive economic and moral rights to the author and/or owner. Firstly, the subject matter of the creation must fall under a relevant “type of work”.4 Secondly, the work must exhibit a minimum degree of creativity, expressed in the Act as a requirement the work be “original”.5 Thirdly, the work must qualify for protection through a connection to New Zealand or a prescribed foreign country.6 Although copyright could subsist in recipes as “literary works”, it is unclear whether a culinary creation in its final form may itself be copyrighted.7 This is an important distinction because, as Sophie Pemberton puts it, “the final creative output is where the chef’s stamp of originality is evident. It is this ultimate arrangement that makes a culinary work worthy of protection”.8
Several publicised instances of culinary plagiarism have helped to compel popular discourse on the relationship between food and copyright. Both Donald Trump and Miley Cyrus have been accused of ripping off cake designs.9 An Australian chef was outed in 2006 for reproducing dishes from several top American eateries at his own critically acclaimed restaurant in Melbourne.10 In 2007 a Manhattan restauranteur even filed a complaint in Federal Court against a former sous chef, alleging his new establishment had “pirated her entire menu” and “copied all aspects” of the restaurant’s food presentation.11 Although a certain degree of imitation is openly tolerated by the culinary industry, direct duplication without credit to the work of another remains outside the bounds of accepted practice.12
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The essay begins by exploring the context behind culinary copyright in Part II. Despite an obvious potential for creative expression, food has not historically been recognised as art, nor chefs as artists. Normatively, the culinary industry operates in a collaborative environment, negating the need for legal protections. Innovation though, remains an essential ingredient to success in the world of cuisine. Social media has placed an increased emphasis on the visual and aesthetic elements of food. Although the culinary industry has operated well in the absence of the law, it is arguable that as cuisine grows in popularity, the current informal culture of self-regulation will become less effective in affording chefs recognition for their creative works. There is therefore some merit in considering how a culinary work could attract copyright protection in the future.
Part III delves into New Zealand’s copyright legislation and works through the requirements which afford a statutory presumption of copyright. New Zealand’s categorisation regime has been criticised as complex and conservative, yet it is possible to assimilate novel works into existing categories where the statutory language allows. Culinary works can feasibly be thought of as “artistic works” under the Act. It is plausible to conclude an appropriate culinary creation could be considered a work of “sculpture”, or alternatively, a “work of artistic craftsmanship”.13 General principles presented in the caselaw on these categories do not prohibit and often align with the qualities inherent in culinary works. The idea that a work must be “fixed” and whether food’s functional nature might infringe on copyright protection are also explored. The final determinant is whether culinary works can be considered “original”. The open-source model of the cuisine industry could pose a challenge for creations which draw heavily on the works of others. However, the capacity for many culinary works to meet the bar is clear. Chefs continue to push the boundaries of culinary innovation to create original culinary works. Subject to qualification by connection to New Zealand, it is conceivable that copyright can subsist in appropriate culinary works.
Part IV concludes by examining the policy rationale for extending copyright to culinary works. Copyright aims to encourage the dissemination of socially useful works. At the same time it seeks to protect authors from the misappropriation of their creative works and the economic or reputational detriment that may follow. It is considered whether these purposes could be met by extending copyright to the kitchen. One concern is that the introduction of copyright could
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dampen culinary creativity. To some extent this argument is diluted when the limits of copyright are recognised. For example, fair dealing defences allow the use of a copyrighted work in some circumstances. It is also questionable whether the culinary industry needs copyright protection. The norms of the industry have so far functioned to prevent direct plagiarism and afford recognition of authorship. It is ultimately submitted, however, that where the norms-based system of protection does not operate adequately, it is not unreasonable to allow chefs to rely on the formal protections of copyright law.
II Culinary Copyright: Historical and Contemporary Context
It is hard to dispute that many culinary works are just as creative, if not more creative, than other works commonly thought of as being protected by copyright law. Heston Blumenthal, celebrity chef and proprietor of three Michelin-starred restaurant, The Fat Duck, is known for constructing complex and innovative dishes. One of his signature desserts, the Botrytis Cinerea involves over 50 stages of preparation and includes ingredients such as aerated grape juice, roquefort powder, peach wine gums, and pear balls infused with saffron, vanilla and fenugreek.14 Despite an obvious potential for creative expression, cuisine has so far remained outside the scope of the law. A cultural reluctance to recognise food as an art form may be one of the driving reasons. The normative operation of the culinary industry, grounded in an ethos of sharing, has also circumvented the need for formal legal protections. Yet the culinary industry remains a highly competitive commercial environment. The proliferation of social media has placed an emphasis on the visual, aesthetic, and artistic elements of cuisine. If chefs are having to grapple with misappropriation of their plating styles, it is worth considering whether copyright could provide an avenue for protection.
A Food — An IP Negative Space
Sixth century chefs working in Sybaris, an Ancient-Greek City-state, were awarded short-term exclusivity rights in novel recipes. This encouraged others to “excel in eager competition with similar inventions”.15 In contrast to this early IP system, the modern culinary industry has been
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identified as an IP negative space.16 It is an area in which creativity and innovation thrives without formal protections from the law.17 Christopher Buccafusco contends that this is because copyright, mired in “[r]omantic notions of originality, creation, and authorship”, has been reluctant to recognise the expressive or artistic potential of food.18
Unlike traditionally protected media, food is primarily functional in nature. It principally provides humans with nourishment. This utility has seemingly detracted from its artistic and expressive qualities. Taste, the external sense most associated with food, was not traditionally considered aesthetic, unlike sight or hearing. Philosophically taste is linked to overindulgence or gluttony, one of the seven deadly sins. As Stephen Mennell explains, “food, like sex, is something necessary, but definitely not to be enjoyed by the virtuous”.19 A historically classist and sexist perception of chefs added to this reluctance. While painters and poets were established as artists by the renaissance period, chefs remained faceless kitchen servants. Cooking in most households was a task assigned to women in the capacity of housewives or domestic servants.20 Recognition of food as an art form did not begin until the 19th century when chefs like Antoine Carême and Georges Auguste Escoffier popularised the profession by establishing their own unique styles of cooking. Escoffier even lamented that “while artists, writers, musicians and inventors were protected by law, the chef had absolutely no redress for the plagiarism of his work”.21 Dominant cultural perspectives have not until recently equated food with art, or chefs with artists.
Cathy Smith points out that norms inherent in the culinary industry have also negated a need for the law. Many chefs recognise the world’s culinary traditions as a collective, cumulative heritage refined by generations of cooks. Chefs express with ease the idea that others may borrow or use their creations and are candid about drawing inspiration from culinary works of the past.22 Copying is to some extent a norm in the culinary industry.23 Kal Raustiala and Christopher Sprigman describe an analogous situation in the context of fashion design as the “piracy
UK, 1996) at 104–108.
20 At 1144–1145.
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paradox”.24 Fashion is another IP negative space. The industry profits by repeatedly originating creative content, yet apparel designs remain largely outside the scope of copyright in many jurisdictions.25 The piracy paradox explains that the lack of protection for fashion innovators is not particularly harmful and there is little incentive to change the status quo. Paradoxically this low IP system may help rather than hinder the fashion industry because fashion’s cyclical nature is furthered and accelerated by a regime of open appropriation.26
A similar paradox may exist in the culinary industry. Chefs are content to share their works where appropriately credited and there have been few efforts made to seek formal legal protections. The normative operation of the industry, grounded in a culture of sharing, has so far substituted for a laws-based system. The direct plagiarism of another’s culinary work, however, is not a tolerated practice. As cuisine continues to grow in popularity, it is arguable that an informal culture of self- regulation will become less effective in affording authors recognition and control of their unique culinary creations.27 This is an idea explored further in Part IV. For now, it is important to understand the growing calls for IP rights in culinary works.
B The Modern Culinary Industry
The culinary industry today is thriving, dynamic, and highly competitive. The pursuit of good food has become a popular pastime for many consumers. As new restaurants come to market with innovative culinary creations, success depends on influential chefs who can develop their craft, satisfy customers, and achieve profit targets.28 However, the industry encompasses much more than fine-dining experiences. J Austin Broussard links the prevalence of cooking in the media and the rise of the celebrity chef as integral to understanding calls for IP rights in culinary works.29Food as a form of entertainment extends beyond eating. Consider MasterChef New Zealand, the Kiwi adaptation of a global competitive cooking television franchise. In 2013 more than 1.1 million New
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Zealanders tuned in to the debut episode to watch competitors vie for the MasterChef title and over $100,000 in prizes.30 It is not surprising that some of New Zealand’s own celebrity chefs got their start on this platform. Nadia Lim (series 2) has published eleven cookbooks, launched the successful “My Food Bag” delivery service, and fronted her own cooking show, New Zealand with Nadia Lim, on the Asian Food Channel.31 The industry contains increasing opportunity for fame and reward. Not only does this encourage modern chefs to pursue culinary innovation, but it has also stimulated a desire for legal protections.32 Quite simply, more money is at stake in the culinary industry than ever before.
Modern chefs are also increasingly cognisant of the aesthetic value that consumers expect when dining out. Although culinary works have not historically been considered art, this is not the prevailing viewpoint today. The dining experience is elevated by the aesthetic presentation and plating of dishes. Food contains elements of form and colour, as do painting and sculpture. In addition, texture, layering, and placement are all considerations a chef undertakes to create a popular culinary work.33 Food is an art form, and it is not just chefs who see it as such. Salvador Dali, a notable surrealist, viewed gastronomy as a “serious art”.34 The three Michelin-starred chef, Massimo Bottura, has had his culinary works compared in creative propensity to that of Picasso.35 This has led some scholars to proffer that if cuisine possesses sufficiently similar underlying traits to other artforms, then by analogy, similar legal protections should be warranted.36
The growing tendency to appreciate the artistic and aesthetic qualities of food has increased with the rising use of social media. Many diners have become just as concerned with the immediate visual attraction of a dish as they are with the taste. Images of food are frequently posted to platforms like Instagram or Facebook for the purposes of review, comment, or advertising.37 Increasingly it is the visual attraction of food that entices customers through the door, rather than smell or taste.38 A side
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note to this focus on imagery is that blatant copying of culinary works is more easily detected.39 Because of this, situations where chefs are having to grapple with the misappropriation of their works are not uncommon.40 It is worth considering whether New Zealand’s copyright legislation could provide an avenue for chefs to protect successful culinary works.
III Can a Culinary Work Meet the Legislative Requirements for Protection under the Copyright Act 1994?
This part examines the hurdles a culinary work must overcome to receive copyright protection in New Zealand. Eligibility hinges on a culinary work fitting within one of the relevant categories of “works” in the Act.41 It is suggested that culinary creations can be consumed as “artistic works”.42 The creation in question must also be “original”.43 Two conceptual difficulties related to food and copyright are also discussed in this part. Firstly the notion that works must be “fixed” to receive copyright protection. This could pose a challenge because culinary works are essentially ephemeral in nature. It is also considered whether the ultimate utilitarian or functional nature of food might diminish the likelihood of copyright protection. Subject to the qualification requirements, copyright can be presumed to subsist automatically in a work which meets these standards.44
A Type of Work
New Zealand’s copyright legislation is characterised by “structural complexity”.45 Andrew Christie attributes this description to the categorisation of protected subject matters, which are intended to give effect to differential protection.46 Different types of works have different legal traits and differ in the scope of protection afforded.47 The Act categorises works in s 14, reflecting international obligations to protect certain types of works.48 Several submissions made in response to the
Be Simplified” (2011) 6 NZIPJ 783 at 1.
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Ministry of Business, Innovation and Employment’s (MBIE) Issues Paper: Review of the Copyright Act 1994 commented on the unnecessary complexity and rigidity of the categorisation regime. Some noted that the current categories are too conservative and traditional, poorly describing contemporary works, and disadvantaging creations that do not fall neatly within the current definitions.49 However, in the absence of legislative amendment it is feasible to assimilate modern creative expression into existing categories of works where the statutory language so allows. Culinary creations can conceivably be accommodated as “artistic works” under the Act.50 It is plausible that a culinary work could be considered a work of “sculpture”, or alternatively, a “work of artistic craftsmanship”. These categories are mutually exclusive subsets of “artistic works”.51 Their application to culinary creations is examined below.
1 Sculpture
It is feasible that a culinary work may be labelled as a “sculpture” for the purposes of the Act. A work can be a sculpture irrespective of its artistic quality and includes a cast or model made for the purposes of sculpture.52As Frankel notes, this means a sculptural work is not simply the end product easily identified as such.53 For example in Wham-O Manufacturing Co v Lincoln Industries wooden models used to design frisbees were held to be works of sculpture.54 In that case Davison CJ stated that in the absence of artistic inquiry, all that is required is that the work be “a sculpture in the ordinary sense of that term or as included in the extended definition of sculpture contained in the Act”.55 The Chief Justice explained that sculpture is a “branch of the visual arts that is especially concerned with the creation of expressive form in three dimensions”.56 Thus a work of sculpture should in some way express in three-dimensional form an idea of the sculptor.57 There is no specified medium for sculptural works. Smith observes that this means a sculpture carved from stone is no more entitled to be a sculpture than one carved
55 At 662.
56 At 661.
57 At 662.
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from zucchini. Similarly a sculpture made from cake and frosting is no less a sculpture than one created with ceramics.58
In Lucasfilm Ltd v Ainsworth the Supreme Court of the United Kingdom saw it necessary to inquire into the purpose behind the work in question.59 The Court was tasked with determining whether an Imperial Stormtrooper helmet from the Star Wars film franchise was a “sculpture” under the Copyright, Designs and Patents Act 1988 (UK).60 Argument centred on the approach to objects that have both an artistic purpose and a utilitarian function.61 Reviewing several Commonwealth authorities, the Court agreed that the helmet was utilitarian in the sense it was an element in the process of production of the films, it did not primarily have an artistic purpose, and was therefore not a work of sculpture.62 The finding in Wham-O, the Court opined, was made largely on the basis the wooden models were made by hand.63 Their Lordships also found favour in Metix (UK) Ltd v G H Maughan (Plastics) Ltd where moulds for making cartridges used with flow mixers were rejected as works of sculpture.64 In Metix Laddie J had emphasised that a work of sculpture should be made by an “artist’s hand”.65 The fact that the manufacturers of the moulds did not view themselves as artists and were not concerned with the aesthetics of the design was key to Laddie J’s decision.66
It is plausible that appropriate culinary works may be considered works of sculpture. Practical contenders for this category include cakes or similar desserts that closely resemble “sculpture” in the ordinary sense of the word. Although some express doubt in the ability of food to portray anything other than what it is, these culinary works often clearly express in three-dimensional form an idea of the creator. Toronto Cake Artist Alexandria Pellegrino of Cake Opera Co. regularly showcases stunning architecturally inspired creations.67 It is also plain that the subjective intention requirement elucidated in Lucasfilm would be met. Many chefs view themselves as artists and create works that are commonly admired as such. It is difficult to describe the creation of Alexandria’s works as having any other origin than the hand of an artist. Cakes also provide a good example of the aesthetic purpose of food quite apart
63 At [30].
64 Metix (UK) Ltd v GH Maughan (Plastics) Ltd [1997] FSR 718 (UK). 65 At 721–722.
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from nutritional utility. They are often used to mark significant events such as weddings, birthdays, or political inaugurations. Frequently the appearance of a cake is more important than its eventual taste. Sculpture is one category of work through which culinary works could feasibly be accommodated. It is probably though, a narrow category in this respect. The “work of artistic craftsmanship” (WOAC) category discussed below may provide scope for a broader range of culinary creations.
2 Work of Artistic Craftsmanship
The term “work of artistic craftsmanship” is not defined in the Act. This category may encompass works that do not fall under the first two categories of “artistic works”. For example, a work of “sculpture” cannot also be a WOAC. Significantly, this category is not shielded from an inquiry into the artistic quality of the work.68The leading United Kingdom case is the House of Lords’ decision in George Hensher Ltd v Restawile Upholstery (Lancs) Ltd.69 There the House of Lords held that a suite of furniture was not a work of artistic craftsmanship. The Lords differed in their route to a conclusion, although agreed that courts should not be involved in making aesthetic judgements.70 Subsequently in Merlet v Mothercare plc, the English Court of Appeal considered that one test had been elucidated — the object in question must be a work of art.71 Notably, Lord Simon in Hensher concluded that the addition of the category to the U.K legislation was influenced by the arts and craft movement associated with British textile designer William Morris. The new category, in Lord Simons’ view, was intended to extend to works of applied art the protections traditionally afforded to works of fine art.72 This context leans favourably toward the assimilation of culinary creations as works of artistic craftsmanship.
The position in New Zealand is outlined in the decision of Bonz Group (Pty) Ltd v Cooke.73 There Tipping J concluded that a WOAC must have some artistic quality. The author of the work must also be both a “craftsman” and an “artist”. Tipping J defined these terms in his judgement as:74
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A craftsman is a person who makes something in a skilful way and takes justified pride in their workmanship. An artist is a person who produces something which has aesthetic appeal.
The Court concluded that the handknitted woollen garments in Bonz were works of artistic craftsmanship. Tipping J considered that the hand-knitters had imparted a sufficient degree of skill, experience and effort in the execution, or craft, of the work. He also viewed the works as having more than sufficient aesthetic appeal. The designers could fairly be described as artists.75
Because creations included in the WOAC category are not excluded from artistic inquiry and must have some artistic quality, it is difficult not to think that a degree of subjectivity could creep into judicial determination.76 This could be an issue because, as American jurist Oliver Wendell Holmes warned: “it would be a dangerous undertaking for persons trained only in the law to constitute themselves final judges of the worth of [artistic merit]”.77 Frankel accordingly predicts that Courts will approach the issue cautiously, and the artistic threshold is likely to be low rather than high.78 Indeed the High Court of Australia in Burge v Swarbrick did not consider an analysis of aesthetic appeal to be particularly valuable.79 It was more important to assess “the extent to which the particular work’s artistic expression, in its form, is unconstrained by functional considerations”.80
These principles show that culinary works could exist as WOAC under the Act. Chefs are plainly craftspeople on the ordinary meaning of the term. They create edible arrangements in a skilful manner and take pride in doing so. Chefs are also artists. Although not all food exhibits aesthetic appeal, many dishes do. Food can be art if the eater (or in this case the court) contemplates it as such. Recognising the dangers of subjective interpretation, the WOAC category could feasibly encompass a range of culinary works.
75 At [224].
79 Burge v Swarbrick [2007] HCA 17, (2007) 232 CLR 336 at [83].
80 At [83]. Frankel above n 53, at 476, notes that this case is not directly analogous to New Zealand because Australia treats functional designs as wholly outside the scope of copyright.
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B Some Conceptual Difficulties: Fixation and Function
The transitory and utilitarian nature of food has been identified as posing a challenge for the subsistence of culinary copyright overseas. In New Zealand there is no express requirement that an artistic work be fixed.81 Functional works are neither wholly outside the scope of copyright protection. However, fixation and function are still an important part of the copyright equation. If a work is not fixed it may not receive copyright protection at all. Function could also impact on the categorisation assessment of a culinary work.
1 Fixation
An underlying principle of copyright law is that protection does not extend to ideas, but only to the expression of those ideas. This is linked to the concept of “fixation” – the idea that copyright works should be fixed in a material form. New Zealand does not specifically require artistic works to be fixed.82 The Berne Convention protects artistic works “whatever their mode or form of expression” but leaves it up to individual countries to determine whether to implement a material form requirement.83 In the case of artistic works under the Act, Frankel considers that such a requirement would be superfluous, because the nature of the subject-matter of those works necessarily requires fixation.84 Without guidance to the contrary, it is likely a minimum degree of fixation is inherently required for artistic works.Culinary works have a transitory existence. They are routinely digested within minutes of their creation. It was this quality that led the Central District Court of California in Kim Seng Company v J&A Importers, Inc to conclude that a bowl of Asian noodles was not adequately fixed for the purposes of United States copyright law.85 The law of fixation in the United States requires that a work be “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration”.86 The Court drew on the Court of Appeal for the Seventh Circuit decision in Kelley v Chicago Park District, where a living garden was not “stable or permanent enough” to
221 (opened for signature 9 September 1886, entered into force 5 December
1887), art 2(2).
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be considered fixed for copyright protection.87 In that case the appearance of the garden was too inherently variable to provide a baseline for determining questions of copyright protection.88 The Kim Seng decision has attracted criticism. Said notes that the Court effectively required permanent fixation, where contrary to its own reasoning, “the fixation requirement does not require permanence or even that the work last very long”.89 The living garden in Kelley was neither a good analogy to rely on because chefs have far greater control over the final appearance of their creations.90 Culinary works do provide a baseline from which to consider copyright protection.
Fixation was also a theme considered by the England and Wales Court of Appeal in Merchandising Corp of America v Harpbond.91 There the Court found that make-up adorning the face of pop star Adam Ant was not a painting subject to copyright because it could be washed off. The Court explained: “if the marks are taken off the face there cannot be a painting
... a painting without a surface is not a painting”.92 Some commentators have noted that it is difficult to see how the Court could conclude a person’s face is any less of a surface than a canvas.93
In any case it is not clear the Act requires a consideration of the length of time a work must exist to achieve fixation. It may even be the wrong question to ask. Recently, in Islestarr Holdings Ltd v Aldi Stores Ltd, the Chancery Division of the High Court of England and Wales considered whether copyright could subsist in a design debossed in foundation powder palettes.94 The defendants to the infringement action relied on Merchandising Corp to argue that the ephemeral nature of the designs, destroyed by use of the foundation, meant that they were not sufficiently fixed to be protected by copyright.95 The Court rejected this claim. More reliance was placed on the fact that the work could be identified and reproduced from underlying drawings and photographs of the design. The Judge expressed agreement with the idea that copyright is not negated because some works may have a fleeting nature:96
96 At [48].
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Otherwise, artistic works by, for example, persons who make sculptures out of sand at low water on a tidal beach, which are then washed away, could have no claim to copyright in, say, a pre-construction sketch or photograph of the completed work. Likewise, I can see no reason why the creator of a bespoke wedding cake could not claim copyright in his or her work.
If there is some record of a culinary work, as there frequently is, it would not accord with the purpose of copyright to deny it protection because the physical embodiment of the work has a transient existence. The mischief which copyright seeks to address does not disappear with the demise of the work itself. Accordingly, the temporary nature of a culinary work should not bar the subsistence of copyright.
2 Function
Food’s ultimate functional nature as an element of human nourishment may pose a challenge to conceptualising copyright in culinary works. Unlike the United Kingdom, Australia, and Canada, the New Zealand Act does not expressly deal with function and copyright.97 However, function remains relevant. “[W]here features of a copyright work are dictated by function, other creators may use their own expression of the same functional features.”98 Function could also impact on the categorisation of a culinary work. In Lucasfilm the utilitarian aspect of the Stormtrooper helmet was a focal point of discussion, ultimately rendering that creation outside the work of sculpture category.99 This is not something that would directly bar copyright in New Zealand. The artistic work category in the Act is notable because it encompasses a broad range of esoteric works.100 For example, toilet-pan connectors and chainsaw chains have gained copyright protection as artistic works.101 The fact that a culinary sculpture may have nutritional value is unlikely to void its status as such.Function is more of an issue on the categorisation of a culinary work as a WOAC. A work of artistic craftsmanship must have some artistic quality. This leaves open the possibility for a subjective analysis on the artistic merits of cuisine. Depending on the epicurean leanings of the court, it is possible the functional nature of food could be understood to detract from its artistic quality. Pemberton notes the characteristics
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of culinary works which counter this notion. For instance, many artistic culinary creations forgo nutrients in exchange for innovative appearance. Desserts, pastries, and cakes are not primarily consumed for nutritional purposes.102 Further, the artistic or aesthetic presentation of a dish is a primary concern for modern chefs. This visual focus represents a degree of consideration which exists apart from functional considerations such as taste.103 Taking a cautious approach to artistic quality, the utility of food should not infringe on the subsistence of copyright where there are separate aesthetic features of the culinary creation.
C The Requirement that a Work be “Original”
Concluding that culinary works could feasibly meet the “type of work” requirement, the next step is to consider whether such works may be “original”. The Act confers copyright only in “original” works.104 This can be understood as the minimum threshold of creativity which a work must pass to receive copyright protection. The standard in New Zealand has been consistently low and it does not require real inventiveness or novelty.105 At a basic level originality means that the work must be independently produced by the creator, and not copied. Relatedly, the author must have expended some degree of labour, skill, or judgement in the creation of the work.106 These requirements could pose some difficulties for culinary works. Because of the collaborative norms inherent in the culinary industry, many works may not be considered independently created. Emily Cunningham notes that the norm of information sharing means an infinite number of dishes and their variations are available for public use.107 Multi-tiered cakes, for example, have been around since Medieval England.108 Accordingly, much is likely to depend on the work in question when determining originality. Function is also a consideration here because, the more a creation is dictated by functional constraints, the less original it is likely be.109
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In Kim Seng the Court made some observations on whether the bowl of noodles would meet the originality threshold for copyright protection.110 The plaintiff, Kim Seng, and the defendant, J&A, were competitors in the market for Chinese-Vietnamese food supply and used similar packaging depicting the bowl of food on their respective rice noodle products. Kim Seng claimed it owned the copyright to the underlying “sculpture” because one of its employees had “chosen the foods depicted out of thousands of possibilities and directed their arrangement to be in a certain fashion”.111 The Court noted that the combination of a common bowl and the ingredients of a common Vietnamese dish indicated a “lack of originality”.112
This is probably a fair conclusion. Not all edible arrangements will pass the originality bar. A dish such as a bowl of noodles is a largely functional affair. Dishes featuring unique visual elements are the more likely to be original. Although common dishes and their variations are generally derivative, chefs do create works that exhibit original creative effort and have no gastronomic precedent. Often the hallmarks of a successful chef are their signature techniques, or flair, evidencing an original creative expression quite apart from industry norms. The inclusion of molecular gastronomy, a subdiscipline of food science, in the chefs’ repertoire means that the scope for original culinary creation is near boundless. The art of molecular gastronomy represents an ongoing quest for novelty, pursued by experimental chefs seeking new levels of playfulness, provocation, and creativity.113 Culinary works involving these molecular processes often exhibit highly unique textural and visual qualities. Edible arrangements may be original where they owe their very origin to their creator. It is difficult not to conclude that some culinary works will be capable of meeting the originality threshold.
IV Should Copyright be Extended to Culinary Works?
New Zealand’s copyright legislation can feasibly accommodate original culinary works. Whether it is desirable to use the copyright framework as an avenue for culinary protection is another question. This part considers expanding copyright to the kitchen as a matter of practical policy. Propelling the publication of useful original works, and guarding against the misappropriation of those works, are the primary purposes of
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copyright. It is important to question whether these goals can be met by extending protections to culinary works. Two main issues are addressed. Will copyright encourage the dissemination of innovative culinary works, or will introducing the law be counterintuitive, and effectuate a creative chill in the industry? Further, is copyright a protection that chefs need? Although the industry has operated well in the absence of a legal framework, there may be some value in having the additional ability to enforce copyright in appropriate circumstances.
A Applying the Goals of Copyright to the Culinary Industry
The Ministry of Business, Innovation and Employment describes New Zealand’s approach to copyright as “utilitarian” or “economic”.114 This is an Anglo-American perspective which holds that copyright exists to promote a balance between creator’s rights and the public interest. Principally copyright is supposed to incentivise the innovation, creation, and dissemination of socially useful works.115 It does this by offering exclusive rights to the author/owner. It also serves to correct a failure of the market where, in the absence of protection, copyists are free to misappropriate works and usurp the creator’s fair return.116 The continental European view of copyright law, in contrast, is generally regarded as placing a greater emphasis on the personal rights of the author.117 This approach recognises and protects the individuality or personhood injected into creative works. With the introduction of “moral rights” for authors in the 1994 Act, New Zealand can be understood as sitting somewhere between the two dominant copyright perspectives.118The law of copyright in New Zealand therefore has two major goals. Firstly, to encourage the dissemination of works for the benefit of the public. Secondly, to protect authors/owners from the misappropriation of their original works, and the financial or reputational detriment that may follow. Copyright in culinary works could theoretically meet these goals by assuring chefs that their creations could not be exploited elsewhere for commercial gain or undue praise. It could also propel efforts to showcase further innovative culinary works within the industry. The extent to which these goals would be realistically met is considered next.
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B Will Copyright Encourage (or Discourage) the Dissemination of Innovative Culinary Works?
According to the Anglo-American justification for copyright, granting protection to culinary works would propel chefs to showcase further innovative creations within the industry, ultimately benefitting the public. The extent to which this would occur is unclear. Currently all dishes and plating styles are available for use by anyone. Buccafusco reasons that copyright would only encourage the dissemination of innovative culinary works if some chefs who would otherwise keep their creations secret, consented to publication in return for copyright.119 This seems unlikely. A common criticism of the orthodox justification is that it relies on an incentive theory that creative works are compelled by motivation and reward.120 As we have already seen, the culinary industry consistently generates original works in the absence of these incentives. It may be wiser from a policy perspective, as Jill Jones explains, to take an agnostic viewpoint. Copyright may or may not actually encourage the creation of useful works. Likewise. it may or may not encourage the dissemination of those works.121The bigger issue, as many commentators have pointed out, is whether introducing legal protections to the culinary industry is counterintuitive. Smith, for example, argues that copyright could undermine the culinary ethos of sharing and create uncertainty for chefs exercising their creative expression.122 As the industry has flourished without copyright, introducing the law may diminish creativity and reduce output. Similarly, Cunningham states that a copyright scheme may engender a chilling effect. Chefs will be discouraged from creating second generation, or improved, versions of dishes for fear of infringement.123 Additional hesitations include limitations placed on culinary students developing their skills and the possible shrinking of restaurant menus.
Just as innovation might be stifled by rampant misappropriation, it is true that it also might be limited by over-protection.124 This is an issue contemplated by the Act. To some extent concerns that copyright will diminish culinary output can be allayed by the fact that the law has its limits. Copyright only applies to original works, is not perpetual, and certain uses of copyright works are allowed. The “fair dealing” provisions in Part 3 of the Act may provide respite from infringement
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in some circumstances.125 In New Zealand there is no open-ended “fair use” exception to infringement.126 Rather, each provision is independent. Section 43, for example, allows fair dealing with a copyright work for the purpose of research or private study.127 This could allow chefs to privately work with copyrighted dishes for the purposes of studying and developing new skills and techniques, even if they ultimately have a commercial motivation in mind.128 It is difficult to see that copyright would pose a substantial threat to the creation of new culinary works. Only certain works will attract originality, and the Act provides defences to infringement. Although it is unclear whether creativity will be enhanced by the introduction of copyright, if it does not cause harm to the industry, then there may be some purpose in having it available for those who wish to enforce it.
C Does the Culinary Industry Need Copyright Protection?
The culinary industry has thrived both creatively and commercially in the absence of formal legal protections. This can, in part, be attributed to a norms-based system of self-regulation. Emmanuelle Fauchart and Eric von Hippel note that this offers similar functions to a laws-based IP system. Their research on the norms existing among a sample of accomplished French chefs identified several community standards that can be understood as aligning with the goals of copyright.129 Chefs must not directly copy another’s dish and are obliged to appropriately credit the authors of notable culinary works.130 These norms seek to dissuade plagiarism and ensure that the moral rights of the author are preserved. Rather than being enforced formally, social consequences induce compliance. For example, a chef who reveals the techniques of another will be refused access to further information from other chefs.131 Blatant instances of plagiarism may also result in the offending chef facing accusations within culinary media circles.132
130 At 188.
131 At 188.
132 Did Marcel From ‘Top Chef’ Really Just Rip Off Wylie Dufresne? GrubStreet (15 May 2007) <www.grubstreet.com/2007/05/did_marcel_from_top_ chef_reall_1.html>.
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An important feature of this analysis is that it focuses on a small group of successful chefs working within the same community. They are likely to share customers, investors, and their works are more often subject to popular review.133 Naomi Straus argues that while culinary norms may be enforceable within communities, or small geographic areas, the task becomes more difficult on a larger scale.134 New Zealand may be uniquely positioned to this challenge in some respects. New Zealand is home to a Chef’s Association which represents industry professionals and seeks to advance the culinary arts. Eight regional branches of NZChefs hold regular meetings and are active within trade events and culinary competitions at local and national levels.135 The cuisine industry in New Zealand is closely connected. With limited examples of culinary plagiarism in New Zealand it is reasonable to conclude a norms-based system has so far functioned adequately for kiwi cooks.
There is still a risk, though, that this system of norms is vulnerable to breakdown.136 Notable examples of culinary plagiarism also extend across borders. For example, an Australian chef recently accused Gordon Ramsay of copying one of the most popular dishes at his former restaurant in Sydney.137 Straus also points out that commercial restaurant chains more interested in the business potential of a dish will not have a similar sense of obligation to community norms as grass-roots chefs.138 In that circumstance the ability to enforce moral rights may also be valuable. Moral rights provide authors with the right to have their works correctly attributed to them, and “integrity rights” to ensure that their works are not subject to derogatory treatment. In many respects culinary works personify their creators. Like any artistic forum food is a way for chefs to express their individuality. In situations where industry norms fail to protect the time and effort expended by chefs, it may be desirable to have the law of copyright in the background. The future use of copyright in the culinary industry should not be quickly discounted.
V Conclusion
Culinary works represent a valuable investment of time and creativity. Chefs exercise a considerable degree of skill and effort to create
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popular dishes that encompass much more than nutrition. Cuisine is an artistic endeavour. Yet, in contrast with other mediums, culinary works have long existed in a legal blank space. This essay considered whether that ought to be the case. An analysis of the Copyright Act 1994 demonstrates that affording copyright to culinary works is not an unachievable task. The specified categories of works contained in the Act can accommodate culinary works as works of “sculpture” or as “works of artistic craftsmanship”. The capacity for these creations to meet the originality requirement is also clear. Although the transitory and utilitarian nature of food pose a conceptual challenge to protection, these are issues that can ultimately be overcome. Even though the culinary industry has developed norms to protect the efforts of chefs, instances of culinary plagiarism are not uncommon. The existence of legal protection, alongside a norms-based system, may be worthwhile. Copyright is a feasible avenue through which culinary artists may protect their creative expression.
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