II. COPYRIGHT PROTECTION OF FOOD PRESENTATION In most cases culinary creations and their aesthetic presentation do not qualify to be protected by copyright. Either because the subject matter is not protectable (e.g., a common recipe has only ideas and methods which cannot be protected),6 because it lacks originality (most recipes are trivial, basic, and should remain in public domain), or because of both reasons. Food presentation can also be too trivial to deserve copyright protection. We must never forget that an overprotection by copyright (or other exclusive intellectual property rights) may have a “chilling effect” on creativity. A correct balance must be struck between protecting the works of creators, while also maintaining a culture of free artistic inspiration.7 There is also confusion regarding the relation between the recipes and the final dishes. We consider the dish the result of the recipe, like the sculpture is at the end of the project, or the building is the result of the architecture project. Considered as an immaterial good, the sculpture and the building can both be protected by copyright (the buyer of the house or the buyer of the sculpture, as a rule, don’t become copyright owners of either). If we are talking about the aesthetic appearance of a fine dining dish, that is, the “plating” of the dish, the recipes ought to be followed. We could say that there may be a two-dimensional phase (the project) and a three-dimensional one (the three-dimensional result). We are trying to protect the result, but that doesn’t mean that the intermediate phases cannot be protected if they deserve protection by copyright (as does the project of architecture works, or even the first sketches or drawings, the same happening with sculptures, and food). It all depends on what we are trying to protect when we are talking about culinary art. Some recipes might deserve protection (few), some cookbooks also deserve protection. The same happens with some menus or titles of dishes.8 6 Copyright does not protect ideas or methods [See Portuguese Copyright Code/Código do Direito de Autor e dos Direitos Conexos (CDADC) Article 1, nº2]. 7 See BONADIO, Enrico, WEISSENBERGER, “Food Presentations and Recipes: Is There a Space for Copyright and Other Intellectual Property Rights?”, A Philosophy of Recipes, January 2022, pp.199–214 DOI: 10.5040/9781350145948.ch-14. We read the pre-copyedited, author-produced version of this book chapter accepted for publication in Andrea Borghini – Patrick Engisch (eds.), A Philosophy of Recipes: Making, Tasting, Valuing (Bloomsbury 2021), following peer review, available at food presentation copyright - This is a precopyedited, author-produced version of a book chapter - Studocu (last access on April, 29, 2025). In this article we refer to the pages of this version. 8 With detail see ROCHA, “The Mondrian Cake…”, pp. 167-170. For a deep approach regarding protection of food by Spanish Copyright, see ROBERT GUILLÉN, Santiago, Alta Cocina y Derecho de Autor, Reus, Madrid, 2017. The Portuguese Copyright Code (CDADC) is more demanding regarding the protection of titles (cf. Article 4). 221 HOW TO PROTECT FOOD PRESENTATION BY INTELLECTUAL PROPERTY
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