The culinary creation, in its physical presentation, depends on time and space. Food dishes are (for the most part) destined to vanish because they are designated and intended to be eaten. It has durability limited to the duration of the support on which it is expressed. Its material permanence can only exist in its repetition. The repetition allows the durability of the ephemeral. But even if the expression of the result is ephemeral, because the dish is created to disappear, that doesn’t affect the protection of the work by Continental copyright. The ephemeral character of the support does not affect the protection of the work. Article 2, nº2 of the Bern Convention and Article 2 of the WIPO Copyright Treaty of 1996 give freedom for each Member Country to decide if they grant protection to works that haven’t been fixed in durable material support. In Continental copyright, namely in Portugal, the protection doesn’t depend on the fixation of the work in a tangible medium of expression, opposite to what occurs, as a rule, in the United States.27 In Portugal the possibly used as inspiration. This makes it more difficult for many “plating” presentations to meet the originality criteria. We don’t agree. Contrary to what the author states, we don’t consider this to be specific of the culinary world. Several traditional artistic movements are related to the practice of borrowing images and details from other artists, as well as from popular culture ( e.g., Pop Art, that challenged the traditional concept of fine art by incorporating elements from the news, celebrities and advertising, taking the material out of its initial context and transposing it into an opposite artistic location), and “appropriation art” (e.g., Picasso, Georges Braques and Marcel Duchamp) which is based on the use and arrangement of preexisting objects or images). Also, the fashion world has a very similar approach as the culinary world. Sharing our view, see BONADIO, WEISSENBERGER, “Food Presentations...” cit., pp.3-5.; see also CUNNINGAM, E., “Protecting Food under the Rubric of Copyright: Should the Law Play a Bigger Role in the Kitchen? Journal of Hight Technology Law, 9, 21, 2009, pp. 22-51; ROCHA, “The Mondrian Cake…” cit., pp.167-170, especially p. 170. 27 The US copyright Act provides that a work is subject to copyright if the relevant subject matter is an original work of authorship, fixed in a tangible medium, and contains artistic aspects separable from its utilitarian functions. The requirement of fixation seems problematic due to the inherently non-permanent nature of food. In the Kim Seng Co v. A Importers Inc (C.D. Cal 2011) the Court found that culinary creations are perishable and therefore not fixed, thus non eligible for copyright protection. The Court quoted previous case law from the US Seventh Circuit’s Kelley v. Chicago Park District Case (7th Cir. Feb. 15, 2011), that revolved around the question of whether an artistically conceived garden could be copyrightable. Because it changes all the time, the Court the copyright protection of the garden. But in Kelley Case the Seventh Circuit Court expressly stated that the physical impermanence does not necessarily conflict with the fixation requirement. The Court recognized that “no medium of expression lasts forever”. What is likely of importance, as BONADIO and WEISSENBERGER point out and the Court recognized in Kim Seng Case, is the purpose of the requirement, which is to “ease problems of proof of creation and infringement” (op.cit., pp. 5-7). As both authors exemplify, fixation does not equate to permanence, and there are many examples outside the culinary world that confirm this. The authors use the famous My Bed exhibition by Tracey Emin, displayed in Tate Britain in London in 1999, finalist for the Turner Prize. The work had an inherently impermanent nature. Inspired by a difficult time in the artist’s life, the work was an unmade, disheveled bed surrounded by various items varying from bottles of Absolut Vodka to house slippers. Each time the piece was exhibited in a new location, it needed to be taken apart and reassembled, changing its composition. It was easy for passers-by to touch the bed if they wished to do so. In 1999 two performance artists even jumped on the bed believing that the piece could be improved. Despite the work not being appreciated by all, no critic ever doubted it was a work of art, despite the lack of physical permanence. If we accept that fixation requires permanence, we will reach the absurd result of exclude from copyright artistic works that are movable 230 MARIA VICTÓRIA ROCHA
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