"The most important thing about intellectual property is that vs. creative
expression is that copyright law was created not to stifle creativity but to
"-- Shepard Fairey
Creative expressions are found in various things ranging from scientific
inventions to business deals, but perhaps the most extensive usage of the term
can only be found in art, where it finds its end and its beginning, its rise and
descent and its true supremacy. Artistic works herein comprise a range of
things, from varied graphic works to sculptures and architectural works. These
works are accorded copyright protection under diverse copyright acts around the
globe, provided that they fulfil the necessary criteria.
As a general rule, copyright here refers to property rights that give the author
and their publisher's sufficient inducements to produce and disseminate original
works whilst also allowing others to draw on these works in their own creative
and educational endeavours. In a rapidly globalizing world, this protection
serves as a vital factor in ensuring delivery of justice when a piece of
'original' craftsmanship is infringed upon.
The food and service industry is one of the multiple industries that have
encountered phenomenal growth in the ripple effect of advancement caused by the
steadfast development of science and technology alongside inter and
cross-cultural spread. Food being a daily essential, becomes a commodity that
can hardly ever stop being good business, and as is the known fact, a growing
business brings with it fortune as well as foes, thus making it require
In this light, a new dimension has opened up in the same known as "food
plating", which poses a curious question to the law of whether the way food is
plated can demand and attract copyright protection. The answer to this curious
question can perhaps not be better answered than by drawing out a comparative
study between the law of various jurisdictions of the world; in particular, USA,
EU, UK and India.
Copyright Jurisprudence In The International Arena
In the USA, the Copyright Act of 1976 governs the sphere of copyright
protection. The USA leads the jurisprudence in this sphere as their food plating
is already accorded protection under the 'useful article' doctrine and is also
considered a sculptural work, provided that the required features are
identifiable, and are capable of existing independently of its inherent
utilitarian aspects, are original and have a 'fixed' tangible medium. Further,
design patents have also been successfully acquired for food plating
arrangements for they are granted protection under design laws as well.
This gives affirmation to the logic stated in the L.A. Printex case, which held
that there are a gazillion
ways to arrange any set of food items and
therefore, dishes should be protectable. This argument is further reinforced by
the reasoning provided in Publications Intern., Ltd. v. Meredith Corp.
creative energies that an author may independently devote to the arrangement or
compilation of facts may warrant copyright protection for that particular
In Feist Publications, Inc. v. Rural Tel. Serv. Co
. it was held that:
[t]he vast majority of works make the grade quite easily, as they possess some
creative spark, no matter how crude, humble or obvious
it might be." This
sheds light on the progressive nature of American legal jurisprudence in
contrast to the other countries of the world.
Within the European Union, the copyright directive and international agreements
conventions govern the copyright law.
However, there is no EU wide definition of the term work
, and the Berne
convention is perhaps the only way to afford clarity by defining the probable
literary and artistic works. The two typical ingredients for the same are:
originality and expression.
However, in the Levola case
, the CJEU held that said taste could not be
protected by copyright because it is not identifiable with sufficient precision
and objectivity. The court did not explicitly mention the fixation requirement,
but such a finding may inevitably be interpreted as introducing a harmonized de
facto fixation condition.
To establish whether a signature dish and or plating arrangement are protected
by copyright under the EU standard, the only question is if it is the author's
own intellectual creation? The concept is explained in several cases, but it
generally means that the author expresses his or her creative ability originally
by making free choices (not dictated by function or rules), resulting in a work
that reflects his or her personal touch. Thus, if a signature dish and or
plating arrangement met this criterion, it would be subject to copyright
protection under EU law, without having any regard to its aesthetic merits.
The United Kingdom differs from the EU regulations by adding a third essential
to the ingredients required to attract copyright protection, i.e., fixation in a
tangible medium of expression. Thus, while the EU adopts a slightly liberal
approach and accords protection to ephemeral works, the UK doesn't
An analysis of the established categories of artistic works under UK copyright
law and the respective criteria for each category illustrates that signature
dishes and plating could qualify as either paintings or sculptures but likely
not works of artistic craftsmanship under section 4(1)(a) and (c) CDPA 1988,
depending on the circumstances. It further proves that diagrams or drawings
created by a chef during the creation process would also be possible subject to
copyright protection under the same section. The copyright in these drawings
would protect the author against copying the signature dish and or plating
arrangement itself by another chef.
Most civil law countries meet the idea-expression dichotomy without the fixation
requirement by giving literal meaning to the term 'expression'. They understand
that 'expression' means to be perceivable
and not necessarily to exist
in a material form
. Without the need to have fixation in a material form,
the issue of transitory duration of work does not arise. Thus, courts have been
liberal in recognizing copyright even over things such as perfume scents.
In Roberts v. Chanel
, the French Court opined that the purpose for
fixation is merely to serve as evidence in an infringement suit and is not a
precondition for copyright to exist. Copyright in a work starts existing when it
is expressed in a perceivable form. Going by this approach, food plating could
be considered an expression of a chef's idea by virtue of being sufficiently
perceivable despite its perishable nature, at least till consumption.
The creativity seen in today's culinary world was not previously foreseen making
food, which was once a mere necessity become a delicacy and in the modern-day
and age, transition to an experience! A brief look into laws surrounding food
plating and its protection of three of the most advanced jurisdictions in the
world gives one several perspectives on how the issue in question may be
handled. Bearing this in mind, the diverse democracy of India becomes an
Copyright Jurisprudence In The Indian Regime
The Copyright Act, 1957 is the piecemeal legislation which deals with copyright
protection in India. The copyright manual defines copyright as "as a form of
protection provided by the Indian legislature to authors/ owners of original
works of authorship from the time the works are created and expressed in a
tangible form." In R.G. Anand v. M/S. Deluxe Films, the court held that the work
which is to be given protections has to be present in 'tangible' form or should
be capable of being touched. Thus the 3 essential elements for obtaining
copyright protection are that: a) The object should be a 'work', b) It should
possess originality and c) it should be in tangible or fixed form.
The copyright act defines the phrase work
as "an artistic work comprising
of a painting, a sculpture, a drawing (including a diagram, a map, a chart or
plan), an engraving, a photograph, a work of architecture or artistic
craftsmanship, dramatic work, literary work (including computer programmes,
tables, compilations and computer databases), musical work (including music as
well as graphical notations), sound recording and cinematographic film".
A reading of the above definition makes it clear that the definition of the term
"work" is purposefully kept wide to accord protection to owners of original
works, which in the long run acts as an incentive for individuals to delve in
the field of creation of original works.
Artistic work is defined under section 2(c) of the copyright act. The SC while
interpreting the said provision has held that "The definition of 'artistic work'
has a very wide connotation as it is not circumscribed by any limitation of the
work possessing any artistic quality. Even an abstract work, such as a few lines
or curves arbitrarily drawn would qualify as an artistic work. It may be two
dimensional or three dimensional. The artistic work may or may not have visual
appeal." The Bombay HC in a case had held that the cartons in which medicine
tablets are packed also qualifies as an artistic work
The law in India does not define what exactly is originality and thus it was
left open to judicial interpretation. The SC after a perusal of national as well
as international authorities came to the conclusion that "the word 'original'
does not mean that the work must be the expression of original or inventive
thought. The Act requires that the work must not be copied from another work
-that it should originate from the author; and as regards compilation,
originality is a matter of degree depending on the amount of skill, judgment or
labour that has been involved in making the compilation."
Having understood the criteria of originality and the object being a 'work', we
now shift our attention to the criteria of fixation. The Indian copyright law
requires that the work should be present in 'tangible' form. Going by the
literal meaning of the term, one can infer that the work that seeks copyright
protection should be present in physical form.
This inference is in line with the decisions of the Indian courts wherein it has
been held that copyright protection is only accorded to the form, manner or
arrangement of ideas or expressions. While on the face of it, there appears to
be no ambiguity in the requirement of 'fixation' when it comes to Indian law,
however the ambiguity (it) is visible when the principles are applied in the
sphere of food plating.
Having understood the nitty gritty of the copyright law in India, we understand
its application in the emerging sphere of food plating and decoration where
chefs today are taking immense efforts to raise the bar of visual experience of
their delicacies. From the exquisite White tuna poached in Olive Oil to the
Gargouillou , chefs around the world have staringly increased the way food is
presented and plated and this is so because, in the modern times, it is not only
the taste but also the presentation which attracts a customer to try out a
One of the primary requirements for attainment of copyrights is that food
plating should come within the ambit of 'artistic work'. In the culinary
industry, plating is always seen as an art form. It is the result of the
application of a chef's artistic idea and his craftsmanship. Since the SC has
already held that the term 'artistic work' should be accorded a wider
connotation, in the present circumstances it is not wrong to say that food
plating, in absence of specific provisions would qualify as an artistic work
under section 2(c) of the copyright act.
Having established food plating as artistic work, the next step is to see
whether it qualifies the test of originality or not. The copyright act does not
delve on the parameters of originality and it was left up on the courts to
interpret it. The SC adopted a common path between the two extreme approaches of
"sweat and borrow" and "modicum of creativity" and instead adopted the test of
skill and judgment with a flavour of creativity
Another doctrine which should be looked in this regard is the American doctrine
of Sc�ne � faire, which stipulates that certain theme cannot be copyrighted as
they are typical to a particular genre. However, when the expression departs
from the cliches of the genre, it moves away from the scope of the doctrine and
entitles itself to copyright protection. For instance, a normal Indian thali
cannot be accorded copyright but the special thali at Delhi's Ardor 2.1 could be
given a copyright.
It is the final criteria of 'fixation' which seems to be the area of concern. As
already explained above, in the Indian context, there appears a slight ambiguity
as the act is silent on what exactly is 'fixation' and the manual states that
the work should be present in tangible
form. If we look at the American
statute, it clearly states that the work should be permanent for more than a
transitory period. Following this, the American court has held that food in
is not eligible to receive protection.
If this principle is followed in the Indian regime, then food plating fails the
requirement of 'fixation' as it is not 'permanent' and is only present for a
transitory duration. However, there exists no such provision within the Indian
regime and thus, in the absence of one, it can be inferred that food
plating/decoration passes the requirement of fixation
The primary goal of copyright jurisprudence in any nation is to bolster
creativity amongst individuals. A comparative analysis between the Indian
copyright regime with that of the western jurisprudence showcases that while in
India, there are no explicit principles to say whether food plating can be given
protection or not, from the analysis shown above, it becomes clear that it can
become a subject of copyright protection in India.
With the advancement in the sphere of intellectual property, and with its
interplay with fields like food plating, it is not far that the Indian courts
too shall have a case regarding copyright infringement of food presentation and
in such a situation, not only the courts, but also the law makers should look at
the western jurisprudence to pace up the existing copyright regime of our
Award Winning Article Is Written By:
- Paul Goldstein, Copyright: Principles Law and Practice (1st vol., Little
- 88 F.3d 473, 480 (7th Cir. 1996).
- Mr.Dhruv Kohli &
- Ms.Diya Vanzara
Authentication No: FB203881991534-07-0222