About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

14 J. Marshall Rev. Intell. Prop. L. [i] (2014-2015)

handle is hein.journals/johnmars14 and id is 1 raw text is: THE JOHN MARSHALL REVIEW OF INTELLECTUAL PROPERTY LAW FOOD ART: PROTECTING FOOD PRESENTATION UNDER U.S. INTELLECTUAL PROPERTY LAW CATHAY Y. N. SMITH 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. Copyright c 2014 The John Marshall Law School t~ I Cite as Cathay Y. N. Smith, Food Art: Protecting Food Presentation Under U.S. Intellectual Property Law, 14 J. MARSHALL REV. INTELL. PROP. L. 1 (2014).

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most