Protecting Your Culinary Creation and Eating it Too: An Exploration into How Australian Copyright Law Can and Should Expand its Menu to Embrace Culinary Works

• Author: Sophie Pemberton
• Position: LLB (Hons) student, Law School, The University of Western Australia
• Pages: 151-204

PROTECTING YOUR CULINARY CREATION AND

EATING IT TOO: AN EXPLORATION INTO HOW

AUSTRALIAN COPYRIGHT LAW CAN AND

SHOULD EXPAND ITS MENU TO EMBRACE

CULINARY WORKS

SOPHIE PEMBERTON*

In a modern gastronomic culture driven by multi-dimensional sensory creativity,

chefs who invest significant intellectual effort into creating aesthetically stimulating

works should no longer be excluded from formal intellectual property protection.

Culinary professionals who produce original culinary works should find protection

in Australia under the Copyright Act 1968 (Cth) (‘Act’). Specifically, the visual

creative expression of a culinary work might be considered an ‘artistic work’1 for

the purposes of the Act. Little attempt has been made by scholars at a

comprehensive assessment of whether copyright law is capable of accommodating

art forms consisting of inevitably ephemeral food, and neither has this been

considered in Australian case law. However, there is abundant precedent for

encompassing new works in the Act in response to cultural and technological

change. This article addresses the challenge of incorporating contemporary art

forms into Australian copyright law but asserts that there is scope for, and social

value in, protecting artistic culinary creations from unauthorised exploitation.

CONTENTS

I

Introduction ..................................................................................................

152

II

Rationalising Copyright for Culinary Works ..........................................

158

III

Can a Culinary Work Satisfy the Legislative Requirements to be a

Copyright Work? .........................................................................................

166

IV

Food for Thought: Should Culinary Works Receive Copyright

Protection? ....................................................................................................

187

V

Conclusion ....................................................................................................

201

"

* LLB (Hons) student, Law School, The University of Western Australia.

1

Copyright Act 1968

(Cth) s 10(1) ‘

artistic work

’ means: ‘(a) a painting, sculpture, drawing, engraving

or photograph, whether the work is of artistic quality or not; (b) a building or a model of a building,

whether the building or model is of artistic quality or not; or (c) a work of artistic craftsmanship

whether or not mentioned in paragraph (a) or (b)’.

152

The University of Western Australia Law Review

vol 41(2)

"

"

"

I INTRODUCTION

The booming interest in the culinary industry has intensified a collective

appetite amongst chefs and consumers alike for novelty and creativity in the

kitchen. 2 Dining out has become a leisure activity 3 and cuisine-centric

television shows have achieved nationwide popularity.4 In efforts to garner

commercial success and enhance reputational esteem in what has become a

highly competitive environment, culinary professionals are being encouraged to

consider protecting their intellectual property rights in their culinary creations.5

Copyright in the culinary industry has recently encountered a wealth of

attention, 6 but recognition of a possible symbiotic relationship between

culinary works and intellectual property rights dates back to ancient Greece,

where exclusivity in dishes was awarded on the premise that it would encourage

"

2 J Austin Broussard, ‘An Intellectual Property Food Fight: Why Copyright Law Should Embrace

Culinary Innovation’ (2008) 10

Vanderbilt Journal of Entertainment and Technology Law

691, 703

(asserting that the growth of the food industry is due in part to the rise in popularity of competitive

cooking television shows and celebrity chefs); Hannah Brown, ‘Having Your Cake and Eating It Too:

Intellectual Property Protection for Cake Design’ (2016) 56(1)

IDEA – The Journal of the Franklin

Pierce Center for Intellectual Property

31, 37-45; Marie-Christine Janssens, ‘Copyright for culinary

creations: a seven course tasting menu with accompanying wines’ (Paper presented at

Association

Littèraire et Artistique Internationale

conference on

Expansion and Contraction of Copyright:

Subject Matter, Scope, Remedies

, Dublin, Ireland, 30 June 2011) 2-3.

3 J Austin Broussard, ‘An Intellectual Property Food Fight: Why Copyright Law Should Embrace

Culinary Innovation’ (2008) 10

Vanderbilt Journal of Entertainment and Technology Law

691, 696-

698; Elizabeth Telfer,

Food for Thought: Philosophy and Food

(Taylor & Francis Routledge, 2002) 1-

3.

4

Masterchef Australia

is a Logie-aw ard winning cooking competition and has proven to be a ratings

winner. The 2010 finale had a peak audience of over 5.7 million viewers in Australia, making it the

most watched non-sporting event since Australian TV ratings began, and ratings have been

consistently high over eight seasons:

Masterchef smashes ratings record

(26 July 2010) Australian

Broadcast Corporation p://www.abc.net.au/news/2010-07-26/masterchef-smashes-ratings-

record/918950>.

5 For example, in the United States, the molecular gastronomist chef Homaro Cantu was issued a

culinary patent for his edible flavoured paper (U.S.Pat.7,307,249, available at http://patft.uspto.gov/).

6 See, eg, Christopher J Buccafusco, ‘On the Legal Consequences of Sauces: Should Thomas Keller’s

Recipes Be

Per Se

Copyrightable?’ (2007) 24

Cardozo Arts & Entertainment Journal

1121; Tania Su Li

Cheng, ‘Copyright protection of haute cuisine: recipe for disaster?’ (2008) 30(3)

European Intellectual

Property R eview

93; Jacopo Ciani, ‘Intellectual Property Rights and the Growing Interest in Legal

Protection for Culinary Creations’ in Nobile M (eds),

World Food Trends and the Future of Food

(Ledizioni, 2015) 15-32; Amelia Fitzhardinge, ‘Out of the frying pan into the court? Dishes and

copyright protection’ (2008) 21(5)

Intellectual Property Law Bulletin

70.

2017]

Protecting Your Culinary Creation and Eating it Too: An

Exploration into How Australian Copyright Law Can and

Should Expand its Menu to Embrace Culinary Works

153

"

"

creative competition.7 Recipes may be copyrighted as ‘literary works’,8 but little

attention has been paid to whether the three-dimensional creative expression of

the culinary creation may itself be a copyrighted work. Several commentators9

argue that misguided focus on the method of construction of a dish, rather than

the final creation, has led to a gap in how the law should handle ‘edible works of

art’.10 Christopher Buccafusco claims that courts in the United States (‘US’)

have mistaken the recipe for the work of authorship, resulting in a lack of

judicial analysis of the conceptual difficulties associated with protecting the

dish as a means of expression itself.11 The chef’s stamp of originality is usually

evident in the final creative output, and is what makes the work worthy of

protection.

Evidence of culinary plagiarism has invited an intellectual property

discourse into the realm of cuisine and reinforced the contemporary relevance

and importance of considering the legal protection available for culinary

creations. In 2006, chef Robin Wickens was accused of almost identically

reproducing dishes from top-end American restaurants Alinea and WD-50 at

"

7 Kal Raustiala and Christopher Sprigman, ‘The Piracy Paradox: Innovation and Intellectual Property

in Fashion Design’ (2006) 92(8)

Virginia Law Review

1687, 1768: ‘sixth century inhabitants of

Sybaris, the largest of the ancient Greek city-states enforced short-term exclusivity in recipes: “[i]f any

caterer or cook invented a dish of his own which was especially choice, it was his privilege that no one

else but the inventor himself should adopt the use of it before the lapse of a year in order that the first

man to invent a dish might possess the right of manufacture during that period, so as to encourage

others to excel in eager competition with similar inventions”’.

8 Australian Copyright Council,

Recipes: Legal Protection

, Information Sheet G 019v10 (2014);

Skybase Nominees Pty Ltd (as trustee for the Barcza Family Trust) And Another v Fortuity Pty Ltd

(1996) 36 IPR 529 (finding that a compilation of recipes and menu plans was protectable as a literary

work).

9 Caroline M Reebs, ‘Sweet or Sour: Extending Copyright Protection to Food Art’ (2011) 22

DePaul

Journal of Art, Technology and Intellectual Property Law

41, 54; J Austin Broussard, ‘An Intellectual

Property Food Fight: Why Copyright Law Should Embrace Culinary Innovation’ (2008) 10

Vanderbilt Journal of Entertainment and Technology Law

691, 715; Christopher J Buccafusco, ‘On

the Legal Consequ ences of Sauces: Should Thomas Keller’s Recipes Be

Per Se

Copyrightable?’ (2007)

24

Cardozo Arts & Entertainment Journal

1121, 1130-1131.

10 Malla Pollack, ‘Intellectual Property Protection for the Creative Chef, or How to Copyright a Cake:

A Modest Proposal’ (1991) 12

Cardozo Law Review

1477, 1486.

11 Christopher J Buccafusco, ‘On the Legal Consequences of Sauces: Should Thomas Keller’s Recipes

Be

Per Se

Copyrightable?’ (2007) 24

Cardozo Arts & Entertainment Journal

1121, 1131.