In Defense of the Stolen Recipe
Food is an integral part of human life, both as a necessary means for survival, and as a social utility. In the last century, food has transcended from simply being fuel into a medium utilized to create an experience — like paint used by a painter, and words selected and arranged by a writer, food has become a means of communicating.
The extraordinary skill and creativity of some of the most recognized and talented chefs has been documented and celebrated throughout time. Restaurants that cultivate dining experiences down to the most meticulous details can charge astronomical prices, and may require a reservation far in advance due to high demand — after the experience is had, the guest signs a check, an economic exchange — just as one may have to pay to enter an art exhibition, or pay a very large sum to own the work itself. Ultimately, a culinary experience is created by a chef who purposefully selects and arranges a combination of flavors, textures, consistencies, and quantities that are plated in a purposeful way that creates the imagined experience for the consumer.
The tenacity needed for the detailed execution of dining experiences, which often includes the ambiance of the restaurant, down to the details of lighting, napkin folds, and table orientation, has long been recognized and rewarded. Though there are many overlaps between the creation and innovation of dishes and the creation of other original forms of art, there is no form of copyright protection for culinary artists which causes grievances for the persons whose work is used by others without attribution.
In what follows I will argue that the exclusion of culinary creation and innovation as intellectual property, and thus not deeming the works within the field as “original works of authorship fixed in any tangible medium of expression” as worthy of copyrights unjustly categorizes food art as something other than the expression of original work. For the purpose of this argument, I must distinguish between cooking and cuisine. I am not arguing for copyright on cooking, which is an activity with the goal of producing food for consumption. I am arguing for copyright in realms of cuisine — this includes haute cuisine, primarily viewed as an “artful” manner of elaborate preparation and presentation — in addition to food sculpture, and built food, and recipes.
First I will give a general overview of United States copyright law and its contemporary application. Second, I will discuss academic definitions of art and argue that culinary works fall under this definition. Third, I will challenge the “non-utilitarian” or “non-functional” requirement of a work that can be copyrighted by bringing into question the protections for vessel hull designs and architectural plans, as a design, or a plan, is, ultimately a set of instructions — which has been used as the primary argument to deny copyright laws for recipes or culinary creation. Fourth, I will lay out my argument that the exclusion of food art is sensory discrimination. How is it that musical compositions, which provide auditory experiences, theater productions, which provide multi-sensory experiences, are all protected by copyright, yet an art form that can provides an experience of taste (often times in junction with visual aesthetic choices, context as in environment) is not warranted the same protection?
Article I, Section 8, Clause 8 of the United States constitution, also known as the copyright clause, states that the United States Congress shall have power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This clause is the basis of intellectual property laws in the US, specifically copyright and patent laws. Copyright protects “original works of authorship fixed in any tangible medium of expression.” Herein, original simply means that the work owes its origin to the author, and authorship pertains to the creation, rather than discovery, of authored works. However, not any physical object is protected by copyright, it is generally characterized as “non-physical property that is the product of original thought.” It protects the expression of an idea, but not the idea itself. Something that can be copyrighted must have a “non-utilitarian” or “non-functional” expression by nature. These protections are applied to literary, musical, artistic, photographic, and cinematographic works, in addition to maps, computer software, vessel hull designs, and architectural designs. There are five rights bundled into copyright: the right to reproduce the work, the right to adapt it or derive other works from it, the right to distribute copies of the work, the right to display the work publicly, and the right to perform it publicly.
The utilitarian incentives-based argument for intellectual property rights argues that the purpose of granting limited rights of ownership to authors and inventors is a necessary condition for promoting innovation. If these rights were not granted, others could simply use the works of others without incurring investment costs, thus de-incentivizing the processes of creation and innovation.
According to the Stanford Encyclopedia of Philosophy, works of art are generally understood to be “intentionally endowed by their makers with properties, usually perceptual, having a significant degree of aesthetic interest, surpassing that of most everyday objects.” A culinary dish designed, executed, and plated with purposeful intent by a chef certainly has a significant degree of aesthetic interest. In fact, the perceived beauty of culinary creations are frequently documented and shared on social media platforms and magazines.
According to Professor Belton, there are three elements of fine art: form, content, context. In his argument, form means the “constituent elements of a work of art independent of their meaning,” such as the size or the color of a piece. Form stands separate from meaning. Content, some argue, contains the subject matter of a piece, others argue it contains the meaning of a piece. Context pertains to “the circumstance in which a work of art is, or was, produced or interpreted.” Within this definition of art, culinary creations are certainly applicable. The form of a culinary creation pertains to the colors of foods and the arrangement of these separate aesthetic pieces to create an intended whole that is aesthetically stimulating — this excludes the intended flavors, a secondary sensory experience, which seems to be the distinguishing factor between original works that are copyrighted and culinary art, that it is eventually meant to be eaten. The content of a dish can be argued to be the types of foods it is utilized, and the combination of these ingredients to make an intended whole. The context can be interpreted as a two-fold argument: (I) the chosen material on which the dish is presented, and (II) the aesthetic surrounding of the place in which it is eaten. Just as a curator of an exhibition tactfully chooses how to display works of art, the Front of House manager of a restaurant often works closely with the chef to create an environment in which the intended culinary experience comes alive.
It does not seem unreasonable to add culinary creations to the list of protected authored works, as it has done for architects just 28 years ago. In 1990 Congress passed the Architectural Works Copyright Protection Act (AWCPA), which amended the Copyright Act to specifically include “architectural works” on the list of protected works. This was established under 17 U.S.C. § 102(a)(8), and hereunder architects may receive protection for the design of a building, which may be embodied in buildings, architectural plans, or drawings. Under § 102(a)(5), which protects pictorial, graphic, and sculptural works, architects receive another layer for protection for diagrams, models, and technical drawings. The span of the coverage “recognizes that: (1) creativity in architecture frequently takes the form of a selection, coordination, or arrangement of unprotectable elements into an original, protectable whole; (2) an architect may incorporate new, protectable design elements into otherwise standard, unprotectable building features [and still maintain protection; and (3) interior architecture may be protected.” It seems that the first element of coverage most certainly could pertain to food art as well. If the word architecture is replaced with the word culinary arts, the statement reads as follows: creativity in the culinary arts takes the form of selection, coordination, or arrangement of unprotectable elements into an original, protectable whole. Individual ingredients or food items are those unprotectable elements that are selected and arranged by chefs to create a work. As a work that is copyrightable must be an original work of authorship, possessing at least some minimal degree of creativity, or a “dash of originality,” this means that the potential counterargument for culinary copyright, which argues that it is, by nature derivative, does not stand. Copyrights have been granted to works with mostly copied elements from others, as long as there was the presence of “dash of originality.”
Further in section 102 of the Copyright Act, it is states that it provides protection for “original works of authorship fixed in a tangible medium of expression.” The phrase, “fixed in a tangible medium expression” is described further in Section 101 as work that is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period more than transitory duration.” Based on these conditions, recipes should qualify for copyright protections, as (1) they exist in tangible mediums of expression, and as (2) they can both be reproduce and perceived. This argument is harder to make for other types of culinary works that may receive protections, such as food sculptures, as the condition that requires a work to be “sufficiently permanent or stable” may not always be fulfilled, but seems warranted for recipes. To exclude recipes, specifically, while including “literary, musical, dramatic, choreographic, pictorial, graphic, architectural, and sculptural works, pantomimes, sound recordings, and motion pictures” raises questions.
Though “mere listings of ingredients, as in recipes, formulas, compounds and prescriptions are not subject to copyright protection,” this exclusion may be circumvented when the work is “accompanied by substantial literal expression in the form of an explanation or directions, or when there is a combination of recipes, as in a cookbook.” However, this does not protect the core procedures and methods that give the recipe it’s originality. This urges me to draw a comparison to sheet music. As a pianist myself who has been classically trained, sheet music most certainly functions as an instruction manual. Though Chopin’s Nocturne №2 in E-Flat Major reads rather differently than a recipe, the intended result of reading both works is that the reader performs something. Whether it be music, or baking banana bread.
What, then, differentiates the two? Is it the symbolic language in which sheet music is written? What if a song was laid out like a recipe? A combination of words that communicates what note to play next? This brings me to my final argument, that the exclusion of food art in copyright protections is sensory discrimination.
Copyright protects “original works of authorship,” but only such works that aim to create a visual experience, or an auditory experience. It seems as though gustation and olfaction, as perfume formulae are not protected either, are two receptors of information that do not receive the type of information that warrants copyright protections as they exist now. Whether the root of the exclusion of taste and smell as an experience that can be cultivated by creators and artists lies in a discussion of “high” forms of art and “low” forms of art, or stems from another place is a lingering question for myself. Though an authored work must be “non-utilitarian” or “non-functional” in order to be copyrightable, the architectural inclusion of 1990 makes this nonsensical. An architect designs buildings that ultimately have utilitarian functions of varying forms. Just because food can be eaten, does not mean it does not qualify as an amazing form of human expression and innovation.
