For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Wednesday, 26 February 2014

Again on food, porn and food porn: who cares about top cuisine IP?


The most depressing food porn ever,
proudly cooked and portrayed by this Kat
Talking about food porn, the new trend of taking pictures of recipes and posting them on social networks, the three-starred French chef Gilles Goujon [is this a nom de plume, asks Merpel?] complained that he feels deprived of his "intellectual property", reported France TV Info. Kat Annsley took him seriously (literally, "seriously?") in this great post here, also wondering whether and how a recipe's appearance could be protected under IP law. Annsley maintained it to be just a Sunday evening's joke, but now the Pandora's box is open and it is worth expanding on this tasty topic for a little bit longer.

The echo of Monsieur Goujon's whingeing spread throughout Europe, triggering diverging reactions from over the Channel and across the Alps. In London David Mitchell, likely one of the best columnist of the western world, took a rather sceptical approach towards Monsieur le chef’s painful complaint, writing in the Guardian a seminal article tellingly entitled “How dare chefs make such a meal out of people photographing their food”. David Mitchell does not share Mr Goujon’s concerns and concludes: “French cooks are whingeing about customers taking cameraphone pictures of their dishes. They should suck it up”.

In Italy, definitely the home country of cuisine [but isn’t ‘cuisine’ a French word, asks Merpel innocently?], the reaction was similar, even though it was expressed in more polite tones. The cuisine website Dissapore, whose pay-off significantly reads “nothing sacred but food”, interviewed a number of top Italian chefs about food porn and IP. With different nuances, the answer of all of them was "intellectual property? Not a big deal to worry about. Although using mobile phones during dinners is despicable and making bad pictures of good dishes is even more terrible, Chef Negrini of Il luogo di Almo e Nadia [strongly suggested by this Kat for a dinner in Milan] took the view that “if your are confident of the quality of your work, a bad picture could not invalidate it. After all, diffusion of pictures on Instagram is all about promotion for your restaurant”. Agrees Luca Lacalamita, patissier of Enoteca Pinchiorri in Florence, according to which “social networks help to promote reputation” and high-level restaurants should not mind about food porn as the food field, “in general, is all about copying”. “The intellectual property is the idea of the dish” [is this an application of the Red Bus principles, sniffs Merpel?], he continued, “and it is certainly not jeopardised by a picture, which is nothing more than an aesthetic habit”.

To similar conclusions came the research penned by Katfriend Lea Gesuà sive Salvadori (left), which delved into the issue of IP and top cuisine in her LLM dissertation at LSE. After dozens of interviews with the best Italian chefs, Lea concluded that:

“Despite the lack of a system of conscious social norms, there are some kinds of social habits resulting in attitudes and practice amongst top chefs that could replace formal law. This informal system is working well in ensuring the recognition of a creator thanks to clients, colleagues and critics and in stimulating new creations and innovations in order to satisfy the market’s tastes.The flow of new ideas in cuisine confirms that IP law is just one of many possible mechanisms that encourage innovation and creativity. Property rights tend to protect financial rewards, whereas the chef’s system values more reputation, public’s interest and prizes such as Michelin stars … In the end, cuisine and its actors do not need Intellectual Property to create and innovate, they better need sharing, openness and cooperation instead” [Lea has been so kind to make her paper available for the IPKat readership, here].

Serving Trieste's Bora as dessert
is not that obvious
No fixation requirement being provided, protecting a recipe's appearance under copyright in the Continent should not trigger particular concerns.  Moreover, high-level cuisine dishes could theoretically meet the originality requirement, with the caveat that the protectable subject matter is not the putting together of a half of a Tropea onion [which this Kat can't stand], Baltic caviar and ostrich egg's albumen, but the original manner in which those ingredients are arranged on the dish. On the other hand, design and trade mark protection of food is a fact under EU law, as class one of Locarno Classification and a number of famous cases demonstrate [last but not least, the Arnoldian reference in the Kit Kat case, on which see here]. And what about patents? Trieste, a lovely city located in the former Austro-Hungarian Empire, is globally known for its kat-abatic [and Kat-hartic, notes Merpel] wind called Bora. Darko Rodica, the psychedelic chef of Za Gradom, a soul place in Semedela (Slovenia) created a dessert that magically replicates the sound of the Bora blowing on the close Trieste in the assayers' ears. Isn’t it a great invention?
The (not so) tempting
Community Design

 No. 81344-0006

In most commercial fields, the more high-level products and service offered, the more IP protection. Apparently, in the food sector things work upside down. Despite same exclusive rights are available, food giants providing middle/low quality food are extremely careful in protecting their recipes as designs and distinctive signs. On the other hand, top-chefs appear to pay more attention to invent new recipes rather than protecting past efforts of their creativity [is this why some still call it “industrial property”, wonders Merpel?].

The IPKat believes that IP law is about fostering innovation. So, how come the most luxurious sector of the food industry does not bother about protecting and enforcing its own IP? Has this anything to do with the piracy paradox? Or does copying in the top-cuisine field play the same role of IP protection, constantly pushing chefs to create new dishes in order to supersede those already copied and to distinguish themselves from lower-level food providers?

Inspired by Rule 34 of the Internet, under which "If it exists, there is porn of it. No exceptions", this Kat also wonders whether there is a connection between food (porn) and the case of (real) porn, a continuously-growing industry despite massive piracy occurring on the internet. Is Porn and Food the new Eros and ThanatosFood, porn and food porn fans’ answers to these hot questions are more than warmly welcomed.  

(A great Katpat goes to Katfriend and IP/food expert Sebastiano Gangemi for bringing Dissapore’s posts at this Kat’s attention).

Everything one needs to know about sex and food in Ferreri’s Blow Out, here.
How to cook ostrich eggs here.
Cat porn here
The Rules of the Internet here.

6 comments:

Michael Thesen said...

Indeed, the protection of culinary creations appears to be one of the first examples incentive-based monopoly rights in history. I have posted something on the law in ancient Sybaris (700-500 B.C) here .

Roufousse T. Fairfly said...

[is this a nom de plume, asks Merpel?]

Or a nom de toque?

In fact, an aptonym.

May I draw your attention to a book on the subject of IP and food, while this blog's attention is drawn to this topic:

Gaëlle Beauregard, Entre l'art, l'invention et la nourriture : la propriété intellectuelle des recettes au Canada, Éditions Yvon Blais, Cowansville 2011

This short (170 pages) treaty is the publication of a Master Degree's thesis on the ways kitchen recipes can be protection under Canadian law. The subject-matter at hand is reviewed and a definition attempted. In the second and third parts of the book the applicability of the patent and copyright regimes are studied.

Anonymous said...

In this respect have a look at EP-Patent EP1498033B1
"Bakery product comprising sauerkraut and gnocci and process for its preparation"
or German Federal Court decision BGH 23.11.1965 Ia ZB 210/63 ("soup recipe") indicating that patent protection for recipes is possible.


Anonymous said...

It reminds me of my very favourite, CN102613541, Canned edible fungus and crocodile meat food. 'By the formula advantage, convenience is provided for a user, and the user can enjoy the edible fungus and the crocodile meat'.

Ashley Roughton said...

I went to a 3 star Michelin restaurant recently. I wanted to photograph my dish (and my two children eagerly eating their way through my meagre wealth). I asked the person who looked like he was in a position of some authority if this would be OK. He said wearily, "no problem, everybody takes photographs these days."

Ashley

Anonymous said...

"If it exists, there is porn of it. No exceptions"

What could IP porn look like?

Art. 123(2) EPC is that an inadmissible extension, or you're just happy to see me?

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