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Food Art: Protecting Food Presentation Under U.S. Intellectual Property Law

19 Pages Posted: 16 Aug 2014 Last revised: 8 Jan 2015

Cathay Y. N. Smith

The University of Montana Alexander Blewett III School of Law

Date Written: July 8, 2014

Abstract

In 2006, a scandal broke in the culinary world. It was alleged that Robin Wickens, chef at (now closed) Interlude restaurant in Melbourne, Australia, had copied dishes by renowned American chefs Wylie Dufresne, Jose Andres, and Grant Achatz. It is not uncommon for chefs to borrow recipes from other chefs, and there has been a long culture of sharing in the cuisine industry. However, what made Wickens’ actions scandalous was that he had purportedly copied the artistic presentation and plating of other chefs’ dishes, not just their recipes.

This Article examines whether chefs can protect the artistic presentation or plating of their dishes under U.S. copyright law, trademark law, or design patent law. The analysis proceeds in three parts: (1) whether artistic food plating could fulfill copyright’s requirement of being an original work of authorship fixed in a tangible medium of expression containing artistic aspects separable from its utilitarian functions; (2) whether artistic food plating could function as protectable trade dress that is nonfunctional and able to acquire secondary meaning; and (3) whether artistic food plating could be protectable as new, original, ornamental, and nonobvious design patent. This Article concludes that a chef may not be able to copyright her artistic food presentation because of copyright law’s fixation and conceptual separability requirements, but — in limited circumstances — a chef may be able to claim trademark protection of a signature dish, or apply for a design patent for her ornamental plating arrangement. Nevertheless, even though chefs may have these options under intellectual property law, they are not guaranteed to prevail in an infringement action, nor would chefs necessarily want to use intellectual property laws to protect their dishes in light of the accepted culture of sharing and borrowing in the cuisine industry.

Keywords: intellectual property law, food art, art law, food law, plating, copyright, trademark, trade dress, design patent

Suggested Citation

Smith, Cathay Y. N., Food Art: Protecting Food Presentation Under U.S. Intellectual Property Law (July 8, 2014). John Marshall Review of Intellectual Property Law, Vol. 14, No. 1, 2014; U Denver Legal Studies Research Paper No. 14-64. Available at SSRN: https://ssrn.com/abstract=2463786

Cathay Yvette Nikka Smith (Contact Author)

The University of Montana Alexander Blewett III School of Law ( email )

Missoula, MT 59812-0002
United States

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