there is a space of freedom for the aesthetics, beyond the shape that is necessary to fulfill the nourishing function. And besides that, if choices were made in such a way to consider the presentation original, according to the above-mentioned criteria. If the food presentation is common, trivial, it cannot be protected.24 But that doesn’t mean that less common, more extravagant, unexpected culinary presentations which combine, namely colours, textures and placement in an artistic way should not be protected. If the above-mentioned requirements of originality meet, we are before artistic protectable work. In haute cuisine the originality in the food plating is normally very high (e.g., the examples of “Oysters and Pearls” and “Salmon Cornet”, signature dishes of late chef Thomas Keller at the French Laundry; the “Orkney Scallop, Hazelnut, Clementine and Manjimup Truffle”, at The Clove Club, in London’s Shoreditch district; the “Almond’s Nougat” dessert, at the Quique Dacosta in Spain, which is described as “pure poetry”).25 Originality in food presentations may come in many ways. It may result from multiple elements that are selected and arranged in such a way that they create an innovative and original visual food work. There are abundant examples of such arrangements in modern gastronomy. Modern chefs create their plates by combining, elaborating and twisting already known components and ingredients. Although the individual elements of such dishes may not deserve protection, the created combination can embody a high degree of creative selection thereby qualifying as original artistic works. Because chefs and cooks often draw inspiration from their colleagues’ creations or even from other forms of art (e.g., the Mondrian Cake by Caitlin Freeman), the plating of the dish can be a derivative work, implying the consent of the authors that allowed the use of their creations if they didn’t fall under public domain (See Article 3 CDADC).26 24 The Kim Seng Co v. J & A Importers Inc (C.D. Cal 2011) exemplifies this. The issue was to know whether a bowl of food containing rice sticks, egg rolls and grilled meet was original enough to be copyrightable. The plaintiff alleged that the defendant had infringed the copyright on their “bowl of food sculpture”, by using the exact same image on their packaging. The Court ruled that the bowl in question was comprised of unprotectable common elements, thus the dish lacked the originality requirement. 25 These examples are given by BONADIO, E., WEISSENBERGER, N., “Food Presentations…”, cit., p.3. 26 Chefs are often deemed to work in an open-source model. This model entails that the chefs` ideas, besides deriving from fellow chefs and other art creators, often originate from the predecessors that passed along their knowledge creating a culinary tradition shaped by several generations. According to BUCCAFUSO, C.J. (“On legal Consequences of Sauces: Should Thomas Keller’s Recipes Be Per Se Copyrightable?”, Cardozo Arts & Ent. L. J., 24, 2007, pp. 1122-1155), this specific factor of the culinary world is referred to as the “hospitality gene”. This entails a certain “culture of hospitality”, meaning that chefs view food as something to be shared, and 229 HOW TO PROTECT FOOD PRESENTATION BY INTELLECTUAL PROPERTY
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