Student, Symbiosis Law School, Pune
Deputy Editor-in-Chief, The Legal Vidya
You eat food first with your eyes, then with the nose and lastly with the mouth.
Presently, appreciable efforts are put down by chefs to enhance this visual experience, from “Les Cristaux de Vent” by legendary French chef “Pierre Gagnaire” to “Eggs Cavir” by “Jean- Georges Vongerichten”. The presentation of dishes in the culinary world is reaching new heights;, even in the popular cooking contest show MasterChef, the judge’s emphasis is more towards the plating of the dishes. From fine dining to messy plates each style needs uniqueness, originality and should be appealing. To fulfill these criteria chefs put in a lot of labor, skills, and undergo scrupulous training to perfect this art. Thus, the artistic work generating from this need’s legal protection. This blog examines how does copyright law protects the scrumptious art of food plating styles.
Food presentations can be protected under copyright law if they fulfill these criteria:
a) Comply with the statutory definition of work under the Copyright Act, 1957.
c) Fixed in a tangible form.
Let’s first look at each of these criteria separately.
1. Comply with the statutory definition of work.
Section 13 of the Copyright Act, 1957 further referred to as Act, defines work; work is an essential requirement for original creation. Section 2(c) defines artistic work, which is one of the categories of work. Food presentations can be protected under works of ‘artistic craftsmanship’ under this category. Since food plating requires an artistic aptitude, it is recognized as an artwork -in the food industry. Plating can be defined as painting a picture on a plate, picture which is composed beautifully with perfection by the chefs. Precision is followed in every aspect of the task, including the size, color combinations, textures, portions, use of plates, and quantity. The results are a work of artistic craftsmanship.
Originality is not defined under the Copyright Act, 1957. However, in the case of EBC v. D.B. Modak, originality standards were established in India through ‘Sweat of the Brow’ test and the ‘Modicum of Creativity’ test. A piece of work is considered as original if the author has put in his/her skills, mind, and labor along with a minimal level of creativity in the work. Moreover, if the piece of work is created using data from pre-existing works, then the new piece of work should be different from the pre- existing works, by arrangement, selection or coordination of such data. These standards are not the ideal standards to be followed in the case of food presentation. In the food industry, chefs draw inspirations from other chefs’ work in the same cuisine, and certain cuisines are presented in a spontaneous way. The criteria of originality would be easily satisfied with the current standards, meaning if a chef makes minimum changes in a pre-existing presentation to create a somewhat divergent presentation, it could easily satisfy the condition of originality.
For example, the traditional Japanese Bento Box, is a beautiful arrangement of delicate items to balance a healthy ratio of foods, Similarly the Indian thalis are plated by arranging multiple bowls at the circumference of a large plate. Only changing the dishes inside the bento box or the bowls of the thali, is minimum creativity and not original creativity. The idea of originality in food plating can be resolved through the American Doctrine of Scène à faire. The doctrine of Scène à faire is followed for dramatic or literary work. As per this doctrine, specific themes to a genre or scenes are not protected under copyright as they are customary. For example, in the murder mystery genre, it is common to have scenes with forensics, blood-stained mirrors, or blood splatter. As these scenes are more or less common in murder mystery films, these cannot be copyrighted; however, when the expression is different from the truism of that genre, then such expressions can be protected under the copyright law as it moves beyond the scope of the doctrine. Similarly, an Indian thali cannot be protected under copyright but the Delhi’s restaurant Ardor 2.1’s Special United India Thali will fall outside the ambit of this Doctrine’s Limitation.
3. Fixed in a Tangible Form
A. Requirement of fixation.
The final requirement of fixation is different for different types of works. Works which are cinematographic, dramatic or are the in form of sound recordings need statutory fixation, but musical work before the Amendment in 1994 needed fixation in writing or in graphic form. The Amendment was influenced by the case of Indian Performing Right Society v. Eastern India Motion Pictures. In this case, it was stated that any singer will be disentitled if there is a mandatory fixation for musical work and subsequently only the composer’s right will be protected. Thus, diverse routes were adapted by the Indian laws with respect to fixation.
The Copyright Act, 1957 does not provide any provision that deals with fixation of artistic work, but the foreword of Copyright Manual on artistic work establishes copyright protection when a work is created and ‘fixed in a tangible form’. The Act does not provide any definition of ‘fixation of tangible form’ but the U.S Code defines a work as ‘fixed in a tangible form’ if the work is stable or sufficiently permanent, for a certain time period. By applying this definition for food presentation, it would be denied copyright protection as the consumption of food would destroy fixation.
B. Doing away with tangible fixation.
Several civil law countries satisfy the idea-expression dichotomy without the fixation criterion by giving literal meaning to the term "expression." They understand that the word "expression" simply means "to be perceivable," not "to exist in a material form." The issue of transitory duration of work does not arise because there is no need for material fixing. As a result, the Dutch court in the case of KECOFA BV v. LANCOME PARFUMS ET BEAUTE et Cie SNC have been liberal in establishing copyright, even in the case of perfume fragrances. Scents have been determined to be suitably perceptible, even if just for a short time (before diluting in the surroundings). As a result, they are perceived to be an expression rather than a mere concept.
Most countries do not provide protection to visually and auditorily conceivable works since the statute drafters never considered such demands could arise in the future, as per the Dutch court that issued the aforesaid judgement. Multiple works, such as sand sculptures, hairstyles, and makeup styles, will not be protected if copyright is limited to materially fixed items that are non-transitory in character.
The objective of fixation, according to the French court, in the case of Roberts A.D et al. v. Chanel et al. is to serve as evidence in an infringement complaint and is not a precondition for copyright to exist. A work's copyright begins to exist the moment it is expressed in a perceivable form. As a result, if a speech is given, the speaker retains the copyright to it. Even if a third party later writes and publishes this speech for the first time, it would still be a violation of the speaker's copyright.
As per this concept, food plating could be regarded a representation of a chef's thought if it is adequately evident. Even if it died ultimately, the work's existence would not be overlooked until it was consumed.
The goal of copyright law is to encourage innovation and creativity while also allowing authors to profit from their work. Except for fixing, gastronomic inventions meet all conditions under Indian copyright law. Fixation is not a statutory requirement for artistic works in India; rather, it is something that has evolved over time.
· EBC v. D.B. Modak, (2008) 1 SCC 1
· Roberts A.D. et al v. Chanel et al., (2008) JIPLP 3(5)
· Indian Performing Right Society v. Eastern India Motion Pictures, 1977 AIR 1443
· KECOFA BV v. LANCOME PARFUMS ET BEAUTE et Cie SNC, C04/327HR
· Ratha Tep, The World’s Most Beautiful Dishes, Food&Wine, (Jan. 29, 2022, 9:53 AM), https://www.foodandwine.com/news/the-worlds-most-beautiful-restaurant-dishes
· Cornell Law School, https://www.law.cornell.edu/uscode/text/17/101, (last visited Jan 29, 2022)
· https://copyright.gov.in/Documents/Public_Notice_inviting_reviews_and_comments_of_stakeholders_on_draft_guidelines/Artistic_Works.pdf, 2022
· Vaibhavi pandey, India: The relevance of Doctrine of Scène à faire in copyright law, mondaq, (Jan 08 2015), https://www.mondaq.com/india/copyright/365210/the-relevance-of-doctrine-of-scne-faire-in-copyright-law
· Angel Srivastava, Special United India Thali at Ardor 2.1, Delhi, Curly Tales, (April 9, 2019), https://curlytales.com/united-india-thali-ardor-2-1-delhi/
· Japan Info, https://jpninfo.com/17972 , ( last visited Jan. 29, 2022).
· The Copyright (Amendment) Act, 1994
 Ratha Tep, The World’s Most Beautiful Dishes, Food&Wine, (Jan. 29, 2022, 9:53 AM), https://www.foodandwine.com/news/the-worlds-most-beautiful-restaurant-dishes  EBC v. D.B. Modak, (2008) 1 SCC 1  Japan Info, https://jpninfo.com/17972 , ( last visited Jan. 29, 2022).  Vaibhavi pandey, India: The relevance of Doctrine of Scène à faire in copyright law, mondaq, (Jan 08 2015), https://www.mondaq.com/india/copyright/365210/the-relevance-of-doctrine-of-scne-faire-in-copyright-law  Angel Srivastava, Special United India Thali at Ardor 2.1, Delhi, Curly Tales, (April 9, 2019), https://curlytales.com/united-india-thali-ardor-2-1-delhi/  The Copyright (Amendment) Act, 1994  Indian Performing Right Society v. Eastern India Motion Pictures, 1977 AIR 1443. https://copyright.gov.in/Documents/Public_Notice_inviting_reviews_and_comments_of_stakeholders_on_draft_guidelines/Artistic_Works.pdf, 2022  Cornell Law School, https://www.law.cornell.edu/uscode/text/17/101, (last visited Jan 29, 2022)  KECOFA BV v. LANCOME PARFUMS ET BEAUTE et Cie SNC, C04/327HR  Roberts A.D. et al v. Chanel et al., (2008) JIPLP 3(5)