Adrià20) also ought to be protected, as the project of a sculpture, or of a work of architecture is.21 One may not forget that the partial presentation of the several parts of the final dish can also be protected because the final presentation of the 20 Considering that recipes of signature dishes can be protected by copyright, see ROBERT GUILLÉN, ob. cit., p. 68 ff. As the author points out, if we take a work like the “Menestra de verduras en texturas” of Ferran Adrià, the recipe has more than 25 ingredients, and 25 or more manipulations, the recipe is so complex that the probability to reach the same result without copying it is almost zero. The originality can exist in the interior architecture of the work. All the elements of the recipe reflect what is essential in the dish. Thus, it is not a simple list of ingredients and orders, it has originality. In a culinary work creativity has two main characteristics, related, but with two ways of expression: visual and taste. The creation of taste is an intellectual and creative activity, that joins imagination, intuition and intelligence. There is a mental taste that appears first in the brain. Chef Roger Vergé wrote: “faire la cuisine, c’est faire oeuvre créatice, c´est marier des mets comme le poète des mots, c’est plaquer des accords de saveurs, c’est inventer des harmonies nouvelles et subtiles”. LAFFONT, Robert, Ma cuisine du soleil. Les recettes originales de Roger Vergé, Robert Laffont ed., Paris, 1996, p. 11. The protection of recipes is also addressed by BONADIO, WIESSENBERGER, “Food presentation...”, cit., predominantly under US law, pp. 8-13. 21 BONADIO, WIESSENBERGER, “Food presentation...”, cit., pp. 9-13, refer the protection of recipes via social norms and case law. Certain guidelines and self-enforced norms already exist within the culinary industry, with cooks that are found copying other chef’s recipes being exposed to negative gossip and exclusion within the community. A famous case is the one of Melbourne-based chef Robin Wickens who in 2005 became known for his uber-creative culinary creations, such as his pickled cucumber-dried mango concoction or his smoked yoghurt. It was discovered that these creative works were not his own but had been copied from recipes developed at several American restaurants (from the plating to the accompanying silverware). Chef Robin Wickens was exposed for his “recipe plagiarism” by the online culinary forum eGullet after he published photos of the creations on his restaurant website. Case law in the US send mixed signals. The first decision is of 1884 in Belford, Clarke & Co v. Scribner. The plaintiff contested that over 170 recipes from his cookbook had been fully copied. The lower Court sided with the plaintiff. The ruling was upheld by the District Court and by the US Supreme Court. In 1924, the Fargo Mercantile Co v. Richter Co involved a bottle label with new an original recipe. The Eighth Circuit found that the recipes on the label were protected by copyright because they were “original compositions serving the useful purpose of advancing the culinary art”. After the publication of MELVILE NIMMER, Nimmer on Copyright, in 1963, a legal scholar that maintained that recipes should not be protected by copyright, the US courts began to exclude recipes from copyright protection. In Publications Int’l Ltd v. Meredith Corp, decided by the Seventh Circuit, the protection 50 yoghurt Danone recipes was denied. The District Court considered that the recipes ought to be protected by copyright, but the Court of Appeal took the opposite stance, because they were methods and contained lists of facts. Nevertheless, the Court left open the question of whether and to what extent a recipe laced with a particular creative language might be protected. In Lambing v. Godiva Chocolatier, the plaintiff claimed that the famous chocolatier Godiva had copied both recipe and design of its distinct chocolate truffle named “David’s Trinidad”. The Sixth Circuit rejected the claim, considering recipes just functional directions for achieving a result, excluded from copyright protection. In the case Barbour v. Head, the plaintiffs sued the defendants arguing that they had published recipes from the Cowboy Chow cookbook in an online magazine and a cookbook. The District Court of Southern Texas, in 2001, found the recipes in question were more than mechanical listings of ingredients and cooking directions, being sufficiently expressive to be protected by copyright. What emerges from the US case law is “a scant and somewhat muddled picture of the copyrightability of recipes (BONADIO, WEISSENBERGER, op. cit., p. 13). In the EU Member States, the situation doesn’t differ. In France, for example a Court considered recipes mere sets of instructions or methods of assembling ingredients, thus they are know-how and lack originality for copyright protection. On the contrary, in Italy a Court found that copyright is available for recipes, considering that their language and text, as well as the selection process and the research underpinning them, show the creative nature of the chef’s personal contribution -Milan Court Nº 9763/2013 (BONADIO, WEISSENBERGER, ob.cit., p. 13). We can conclude that like in the US, case law regarding recipes in Continental Copyright is scarce and somehow contrasting. 226 MARIA VICTÓRIA ROCHA
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