This article has been written by Ishaan Kedar Paranjape, pursuing a Diploma in Intellectual Property, Media and Entertainment Laws from LawSikho.

Introduction

Do you know that you taste the food long before it touches your tongue? I agree that this sounds impossible; but we visually savour the food before we actually eat it. These days, chefs are taking immense efforts to raise the bar of visual experience of their delicacies. From Timothy Hollingsworth’s ‘Confit of Moulard Duck Foie Gras’ to ‘Royal Sterling Caviar Vichyssoise of Caraquet Oysters’ by Daniel Humm; the food industry is scaling different heights in the presentation of the dishes (see here). The need for such uniqueness is an outcome of the competition in the consumer market. Also, food blogging and social media is playing a major role in promoting such creative presentations as people take and commercialize a snapshot before eating.

Of course, due to the consumer’s penchant for beautifully presented dishes, the chefs undergo arduous training and take unparalleled efforts to master this art and science of food presentation. The creative works resulting out of this should be given legal protection. In this article, I am keen on examining how food presentation and plating can seek protection under the Indian copyright regime. Food plating can be afforded with copyright protection if the following three requirements are fulfilled- 1) originality; 2) should be within the ambit of ‘work’; and 3) should be tangible in nature (should have a fixed form). In the course of this article, I shall explain each point briefly.

The plating should be ‘original’

The Copyright Act, 1957 does not define the contours of ‘originality; it has been left open for judicial interpretations. After the landmark judgment of Eastern Book Company v D. B. Modak (see here), it is safe to say that the Indian interpretation of originality falls somewhere in between the two poles of the British standard of ‘sweat of brow’ and American ‘modicum of creativity test. In simpler words, work is construed to be original if the author of that specific work has put his/her mind, labor, and skill in the work with some degree of creativity. Moreover, if the work is derived from the contents of pre-existing works, then by coordination, selection, and rearrangement of such contents, the new works should be different from the older ones to some extent.

But, the above standards are not ideal for our issue about food plating. It is well known in the culinary industry that chefs draw inspiration from each other’s works (especially in the same cuisines), and a lot of works are inherently derivative (see here and here). At the same time, there are certain cuisines that are to be presented essentially in a certain manner. Now, by existing approach, a chef who plates his dish with certain minimal changes, amounting to a different presentation of food than the original cuisine, would easily pass the muster of originality. But this will surely permit monopoly of that dish and lead to its appropriation. 

Let us take an example of Indian thalis- a thali is usually plated with bowls at the periphery of a plate. Similarly, all bowls of Japanese ramen noodles are plated somewhat similarly. Merely changing the contents of the bowls of a thali or changing the top dressing in a ramen bowl, even though minimally creative, is still insufficient to be construed as the original. In these cases, copyright cannot be simply given to the one who simply fixes his /her idea somewhat differently; in such cases, the copyright should be given to the one who has a considerable quantity of ingenuity affiliated to the manner of fixation. 

For the current scenario, it is highly advisable to consider the American doctrine of Scène à faire, which is usually used for artistic or dramatic works. The said doctrine implies that certain themes and/or scenes that are quintessential to a genre cannot be copyrighted as such entities are customary (see here). For instance, it is common in a horror movie to have bloodstained mirrors, shabby attic, etc and these cannot be given copyright protection. However, when the expression is novel and very different from the clichés of that genre, then such expressions move beyond the scope of said doctrine and are protected under copyrights. For example, Pennywise- a clown as a ghost in a horror movie travels beyond the ambit of Scène à faire doctrine. In a very similar fashion, the plating of a simple Indian thali cannot be protected, but the plating of Special United India Thali at Delhi’s Ardor 2.1 restaurant should ideally be given copyright. 

Food plating as a ‘work’

The next requirement is for the original creation to be ‘work’ as per Section 13 of the Copyright Act (see here). It is possible to claim that food presentation is a work of ‘artistic craftsmanship’ and thus can be interpreted to mean an ‘artistic work’ as defined in Section 2(c) of the said Act (see here). It is well settled that plating is always seen as an artwork in the culinary industry (see here). Plating can be understood as the ability to create a ‘picture on the plate and chefs take a lot of effort to attain such perfection. Preciseness in size, colors, and textures is emphasized in such plating. Similarly, distinctive crockery also plays a key role to appeal to consumers. A distinctive food presentation, which is the outcome of the above-said factors, is surely a work of artistic craftsmanship, i.e., within the definitional contours of artistic work defined in Section 2(c).

The requirement of fixation

The requirement of fixation varies according to the type of work. Dramatic, cinematographic works and sound recording warrants statutory fixation. Musical works require fixation in written or graphical form. This however changed after the Amendment of 1994 (see here).  This Amendment finds its inspiration in the case of Indian Performing Rights Society v. Eastern India Motion Pictures (see here) which put forth a view that compulsory fixation in the musical works disentitled the singer and upheld the rights of the composer alone. Thus, according to the facts and circumstances, Indian law has adapted to varied approaches regarding the notion of fixation.

Works such as photos, sculptures, architectural works, etc are by their nature ‘fixed’; implying an absence of debate regarding fixation in artistic works. It is to be pointed out that while the Act is silent about fixation requirements, the Copyright Manual on Artistic Works (see here), in its foreword, makes it amply clear that copyright protection is given to the works if it is ‘fixed in a tangible form.’  However, there is a definitional ambiguity as to what is ‘fixed in a tangible form.’ The American statute expressly states (see here) that the work is fixed in a tangible form when it is adequately permanent or stable, i.e, work should exist for more than transitory duration. If the requirement of permanence is incorporated into Indian law, the copyright for food presentation will be denied as consumption of the delicacy shall destroy the tangible form- fixation would not be considered to have a sufficient quantity of permanent form.

Instead of dissecting the tangible fixation in food plating, it is imperative that we scrutinize the purpose of having the requirement of fixation itself. In India, the phenomenon of fixation abides by the principle that copyright protects the expression and not the idea. Nevertheless, it is pertinent to acknowledge the fact that copyright jurisprudence of several countries stands by this doctrine without having the fixation requirement. The next heading shall explain the approach of such countries and address the question- do we really need the fixation requirement?

Putting an end to tangible fixation

Maximum civil law countries satisfy the idea-expression dichotomy without the fixation requirement by attributing a literal meaning to the term ‘expression.’ They interpret ‘expression’ to be perceivable in nature and not necessarily in a material form. The problem of transitory (temporary) duration of work shall not arise if there is no need for work in a material form. Judiciary has been liberal in affording copyrights even to a perfume scent (see here). Scents are adequately perceivable for a limited time. Hence, they indicate an expression; not an idea. One can say that limiting the scope of copyright to objects that are materially fixed would avoid several works falling within the protective shell of copyrights (for eg. Hairstyles, sand sculptures, etc.)

In the French case of Robert v. Chanel (see here), the court was pleased to declare that fixation simply serves as evidence for infringement suits and is not a prerequisite to give copyright protection. The moment a work is expressed in a form that is perceivable, copyright in a work is conceived. Following this approach, food presentation can be and must be considered as an expression of a chef’s idea because the plating is sufficiently perceivable. Even though the food will perish in due course, the existence of work till it was eaten, would be acknowledged. 

Conclusion

The main aim of copyright jurisprudence is to incentivize creativity and innovation; and letting creators accrue profits from these works. Food presentation fulfills all the requirements under the Copyright Act except for that of fixation. An interpretation in light of the understanding of fixation in various civil law countries should be considered to satisfy the modern trends of newly evolving industry practices. The time is not far that we shall have a case law regarding copyright infringement of food presentation wherein the Courts shall settle this conundrum once and for all. 

References

1. https://copyright.gov.in/Documents/Public_Notice_inviting_reviews_and_comments_of_stakeholders_on_draft_guidelines/Artistic_Works.pdf.
2. https://core.ac.uk/download/pdf/9403814.pdf.
3. https://curlytales.com/united-india-thali-ardor-2-1-delhi/.
4. https://www.dailymail.co.uk/news/article-2563199/New-York-nations-best-rated-restaurants-city.html.
5. https://derivativedishes.com/.
6. https://economictimes.indiatimes.com/magazines/panache/food-drinks/why-do-chefs-in-india-continue-to-serve-imitations/articleshow/72309541.cms?from=mdr. 
7. https://www.egazette.nic.in/WriteReadData/1994/E-0392-1994-0054-15072.pdf.

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