Of all the mediums where intellectual property makes the least amount of sense, actual food and drink must certainly be among the most absurd. Not the trade dress of food packaging, mind you. I’m talking about the actual food and drink products themselves, be they craft beer or a plate of food. And, yet, you see this sort of thing crop up from time to time. A pizzeria somehow thinks it can trademark the taste of its pizza. Or, more apropos for today’s post, a German court that says taking pictures of plated food could violate the copyright of the chef.

Plating food is now coming up again, with a post on the blog of the California Law Review site suggesting that plated food, if artistic enough, does in fact deserve copyright protection. While the entire post is detailed and thorough, the real question of whether plated food merits copyright protection has less to do with the creative aspect of plating — of which there are some true creative aspects — than with the question of fixability. To warrant copyright, a work must be both original in its creativity and created in a fixed medium. There are a couple of key historic cases that address what it means for a work to be in a fixed medium, helpfully laid out in this John Marshall Law School article.

In Kim Seng Company v. J&A Importers, Inc., the court examined whether Kim Seng’s “bowl-of-food” sculpture satisfied the fixation requirement of copyright law.31 Kim Seng admitted that the bowl-of-food sculpture was comprised of “a perishable Vietnamese dish purchased by [an employee] from a local restaurant.”32 In analyzing whether Kim Seng’s bowl-of-food sculpture met the fixation requirement, the court compared it to the living garden in Kelley v. Chicago Park District, which was inherently changeable and ultimately perishable.33

In Kelley v. Chicago Park District, the current leading case on copyrightability of organic works, the Seventh Circuit analyzed whether an artistically arranged garden was “fixed” for the purpose of the Copyright Act.34 A famous artist, Chapman Kelley, installed a wildflower display in Grant Park, a prominent public park in downtown Chicago.35 His garden received critical and popular acclaim, and was promoted as “living art.”36 Without permission from Kelley, the Chicago Park District dramatically modified the garden by reducing its size, reconfiguring the flower beds, and changing some of the planting materials.37 Kelley sued the Park District.38 The Seventh Circuit found that Kelley’s living garden could not be eligible for copyright protection because it “lack[ed] the kind of authorship and stable fixation normally required to support copyright.”39 In its opinion, the court clarified that it was “not suggesting that copyright attaches only to works that are static or fully permanent (no medium of expression lasts forever), or that artists who incorporate natural or living elements in their work can never claim copyright.”40 However, Kelley’s living garden was “not stable or permanent enough” to be a work of fixed authorship.

So here we have two cases where courts are deciding copyright protections specifically in part on the question of fixed medium. While the California Law Review’s post focuses on the Kim Seng Company decision, trotting out several scholars who take issue with the court’s interpretation of the fixability question, I believe the the Kelley decision is actually more powerful. The first complaint from select scholars is that concept art often includes repetition that serves as a stand in for non-degradable medium for fixability.

First, Professor Said’s claim that an artists’ conceptual art is fixed when repetitively performed applies with equal force to chefs who plate the same dish over and over. It is likely that, in practice, a chef would not want to copyright one particular iteration of a dish; any serving of “Who Killed the Goat?” would not last the average four months it takes to process an internet-submitted copyright claim.[56][56][56] Registration Processing Times, U.S. Copyright Office https://www.copyright.gov/registration/docs/processing-times-faqs.pdf [perma.cc/MHM9-DX5G] (last visited May 1, 2019)…. Instead, Chef Anand’s nightly plating of “Who Killed the Goat?” would likely “repeat [itself] over and over,” warranting the exact kind of protection that Professor Said describes as being so repetitive as to achieve performance.

This only makes sense if you completely ignore the “transitory” language in the law, which states:

“A work is ‘fixed’ in a tangible medium of expression when its embodiment . . . is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of time more than transitory duration.”

A chef, brilliant and creative as he or she may be, creates and plates his or her food, that food literally transits to the table where it is enjoyed briefly before being destroyed via consumption, turned into mere caloric energy inside our bodies. Whatever the purpose of the law’s language, it can’t possibly have meant to assign copying restrictions to that. In the Kelley decision, we’re talking about art fixed in plants that might last years and years and yet that still didn’t warrant protection when Chicago decided to change the non-fixed expression around.

The second criticism is that the medium becomes fixed when people capture its image in photographs and video.

Second, Professor Said’s idea that “the first purposes of the fixation requirement lies in the use and enjoyment of the work by others” supports the notion that a dish is “fixed” when it becomes something more than just consumption.[58][58][58] Said, supra note 49, at 339 (citing Laura Heymann, How to Write a Life: Some Thoughts on Fixation and the Copyright/Privacy Divide, 51 WM. & MARY L. REV. 825, 842 (2009))….Certainly, the success of shows like Netflix’s Chef’s Table[59][59][59] Genevieve Van Hoorhis, When Will ‘Chef’s Table’ Return for Season 7? It Takes Time To Capture All That Tasty Goodness, Bustle (Feb. 22, 2019), https://www.bustle.com/p/when-will-chefs-table-return-for-season-7-it-takes-time-to-capture-all-that-tasty-goodness-15988094 [https://perma.cc/39KK-NJU7]…. and the trend of posting food to social media proves that it exists long enough to be enjoyed by others.[

Except that’s ridiculous. If anything, all these examples show is that the fixed medium of photography and film deserve the copyrights in question, not the non-fixed work expressed via food.

To be clear, none of this is to say that chef’s can’t be extremely talented both in taste and in artfully plating their food. No matter how artistic they may be, however, either the medium is fixed or it isn’t. And as someone who can destroy a plate of food, I can tell you that medium ain’t fixed.

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