Copyright Protection in Food Plating

Introduction

Chefs across the world pay special attention to the plating of their food. That is because the plating makes the first impression of the dish on the consumer. The entire experience of consuming a dish begins with smelling its aroma and looking at it. The plating of a dish entices the consumer to eat it, therefore, the culinary industry focuses a lot on plating. Most chefs use their creativity to come up with multiple ways to beautifully present or plate their dishes. Plating is in itself an art and in this article, we will discuss whether the Indian copyright law protects how a dish is presented by a chef.

Conditions for protecting copyright in food plating

As per the Copyright Act of 1957 and several Indian and foreign precedents, to avail copyright protection, a work should fulfil the following conditions:

• It should be a copyrightable work
• It should be original in nature
• It should be fixed in a tangible form

To find out whether the plating of a dish can avail copyright protection, we will analyse it in these three aspects.

Copyrightable work

The works that can claim copyright protection are enumerated under Section 13 of the Copyright Act. It states that the following classes of works are copyrightable-

• Original literary, dramatic, musical and artistic works;
• Cinematograph films, and
• Sound recording

The term ‘artistic work’ is defined under Section 2(c) of the Act. It states that an artistic work means –

• A painting, sculpture, drawing, diagram, map, chart, plan, engraving, photograph
• An architectural work
• Any other work of artistic craftsmanship.

Within the culinary industry, plating is considered an art.^[1] So many aspects like the colour and texture of the cutlery, the quantity of each component of the dish on the plate, the precise arrangement of those components on the plate, etc. play a vital role in artistically attracting the consumers. At a high-end restaurant, one cannot help but wonder at the attractiveness of an aesthetically arranged plate. It involves precision and craftsmanship. Hence, as per this definition given under Section 2(c) of the Act, the plating of a dish may fall under the ambit of artistic craftsmanship.

Originality

Though the term or concept of ‘originality’ is not defined under the Act, Section 13(a) specifies that the work should be ‘original’. Nevertheless, it was explained in the case of Eastern Book Company v. D.B. Modak^[2] (2002). As per the judgment in this case, a work is said to be ‘original’ if it involves the application of the author’s mind, labour, skill and considerable amount of creativity. It is a combination of the US concept of “modicum of creativity” and the British concept of “doctrine of the sweat of the brow”. It was also held in this case that in the case of a work inspired by already existing works, the new or ‘derivative work’ should be considerably different from the existing works.

[Image Sources : Shutterstock]

However, in the case of dish-plating, this concept can not be applied entirely. That is because the presentation of various traditional dishes essentially looks the same. For instance, the south-Indian traditional dish ‘Idli’ is always served with chutney and sambar on the sides. Irrespective of the chef or restaurant, this classic presentation remains the same everywhere, albeit with little moderation. In such cases, providing copyright protection to such traditional presentations/ platings will result in a monopoly.

The concept of “Scène à faire” would be appropriate in such cases. It originated in the American case of Cain v. Universal Pictures^[3](1942). It provides that the incidental features that are common in a genre are not copyrightable. Considering this concept, though common and traditional plating is not copyrightable, the complex platings of inventive dishes may be copyrightable.

Fixation

Only the ideas that are fixed in a tangible form can be copyrighted. The Indian copyright law is silent as to the definition of fixation. However, the US copyright law specifies that a work is said to be fixed in a tangible medium when it is embodied in a sufficiently permanent or stable form so that “it can be perceived, reproduced or communicated for a period more than transitory duration^[4].” If this definition is accepted in Indian courts, plating will not avail of copyright protection, because food is perishable in nature.

However, in India, the concept of temporary and permanent fixation is not very strict. Indian courts predominantly pay attention to the question of whether or not the work is fixed in a tangible form. Considering that judicial attitude, platings may avail copyright protection in India.

Legal precedents on the copyrightability of food plating

Unfortunately, there has not been any lawsuit wherein the copyrightability of food plating is discussed. This lack of precedent is probably due to the ever-changing landscape of the culinary industry.

Conclusion

Since there is no precedent in the matter of copyrightability of plating dishes, it is unclear as to whether it subsists or not. However, it fulfils the criteria for copyrightability. Considering how the Indian courts focus more on materialistic fixation than duration-based fixation, there is a possibility that if a case related to the copyrightability of plating reaches an Indian court, it might be given copyright.

Author: G.B. Vishwa, a student of SRM School of Law, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or IP & Legal Filing

References

1. Plating manifesto (II): the art and science of plating | Flavour | Full Text (biomedcentral.com)
2. Legal analysis of theory of idea-expression dichotomy – iPleaders
3. Copyright Protection in Recipes – Copyrightlaws.com: Copyright courses and education in plain English

^[1]Plating manifesto (II): the art and science of plating | Flavour | Full Text (biomedcentral.com)

^[2]Eastern Book Company &Ors vs D.B. Modak &Anr on 12 December, 2007 (indiankanoon.org)

^[3]CAIN v. UNIVERSAL PICTURES CO., (S.D.Cal. 1942) | 47 F. Supp. 1013 | S.D. Cal. | Judgment | Law | CaseMine

^[4]17 U.S. Code § 101 – Definitions | U.S. Code | US Law | LII / Legal Information Institute (cornell.edu)