Rights for Recipes?

The dissemination of his food masterpiece into social networking outlets annoyed Gilles Goujon, chef of a restaurant called L’Auberge du vieux Puits in the south of France. One of Chef Goujon’s complaints? It takes away the “surprise”! Another French chef, Alexandre Gauthier of La Grenouillère said, “We tweet, we ‘like’, we comment, we answer. And the dish is cold.” Understandably, these French chefs were greatly concerned about their dishes, customer satisfaction, and restaurant ambience. But more significantly, Goujon was upset by the loss of a little bit of his intellectual property since his dish could be copied.

Even New York chefs are annoyed by the growing number of food pictures taken in their restaurants, as reported recently by the New York Times. With bright flashes, small tri-pods, and guests standing on dining chairs in fine-dining establishments, it is easy to see how they might be frustrated. These frustrations explain why chefs around the globe have begun banning cameras and discouraging flash photography within their restaurant houses (For example, Chef Gauthier’s La Grenouillère in France (see above), Chef David Chang’s Momofuku Ko in New York City, Seiobo in Sydney, Australia and Shoto in Toronto, Canada, Chef RJ Cooper’s Rogue 24 in Washington, D.C. and Moe Issa’s Chef’s Table at Brooklyn Fare).

There are, of course, several arguments to be made that this photography is helping the food sector. It is essentially free advertising for the restaurant and publicity for the chefs, themselves. It might even encourage chefs to be “more careful in plating;” if you know your dishes are going to show up online, you are going to make sure to do it right, said Chef Sean Brock of Husk and McCrady’s in Charleston, SC in an article by Eater.

But what about the argument that foodstagramming is stealing intellectual property from the chef without their consent? Currently, the availability of copyright, trademark, or patent protection for recipes, dishes, or presentations within the restaurant industry is questionable. In the above-mentioned Eater article, Chef RJ Cooper of Rogue 24 argued that unauthorized picture-taking of his dishes is essentially “taking intellectual property away from the restaurant.” He went on to say that, “If you’re publishing something in a public forum without written consent, that’s problematic.” If mimicking actual intellectual property law, we must assume that chefs as the “artists” of their food works.

In the social norms-based IP system operating within the food sector, chefs or “food artists” should arguably have the right to reproduce, display, or make derivatives (which, arguably, the photographs would be) of their work: all of the rights that come with traditional copyright protection. As artists of food creations, chefs might even argue that they are entitled to moral rights, encompassing the right to have one’s name associated with one’s work and to protect works from mutilation or distortion. This might mean the chefs’ and restaurateurs’ stronger argument is the potential for poor reproduction of their scrumptious creations. Partly eaten, unappetizing portrayals of chefs’ dishes due to bad angle, flash, or photo filters could in fact be damaging to their businesses, brands, and reputations. What if it is a fuzzy picture?! Chef RJ Cooper says, it “would [not] be right to spread that.”

With the growth of the social networking craze to post food pictures, foodstagrammers might be next on the chefs’ chopping block. #delish #cleaneating #nomnomnom

Amanda Russo is a J.D. candidate, ’15, at the NYU School of Law.