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Saturday, 19 December 2015
Protecting cuisine in Italy: photographs of dishes and recipes in recent case law
Not an average risotto
and growing obsession with food and food porn [see here for a collection of IPKat posts] has been raising not just anthropological questions about
ourselves but also IP-related questions. Among other things, what kind of
protection (if any) is available to photographs of dishes and recipes?
“In recent years, the food & beverage
industry has undeniably risen to an ever more determining role among
professionals of the legal world for the issues that it presents daily and
submits to the attention of courts and law experts.
We refer to an industrial field which involves
a significant share of the domestic market and accordingly an extremely large
number of businesses that operate every day by offering more and more
diversified and innovative services which, consequently, draw attention to
problems and topics that have not been faced ad discussed so far.
To quote some figures disclosed by
Federalimentare – the Italian Association of the Food Industry – during the
presentation of its annual accounts of 2014 and of the outlook for 2015, the
Italian food industry is the second segment in Italy’s manufacturing industry
with a turnover of 132 billion, more than 58,000 businesses, 385,000 direct
workers and 850,000 employed in farm production, with a growth outlook in 2015
of (+0.3%) in terms of consumption, (+1.1%) in terms of output and (+5.5%) in
This performance was also and mostly achieved thanks to the positive
trend generated by Expo 2015 and by the
so-called “Italian sounding” effect which allows the Italian food
industry to rank unquestionably among the world’s best.
The purpose of this post is to identify new
legal developments facing cooking blogs, particularly with regard to
photographs of dishes and culinary recipes.
We believe that this kind of photographic works
may receive protection as creative works, where they display sufficient originality. In other
words, as well-known court decisions established, “the photographer’s
reproduction modality must convey an additional and different message than the
material crystalised representation, thus rendering a personal interpretation
capable of making one work stand out among others having the same subject
matter” (Court of Roma, 2 August 2003 and Court of Milan, 7 July 2011, all
available on www.darts-ip.com).
requisite of the creativity of the photographic works subsists anytime authors
did not merely reproduce reality but inserted his imagination, taste, or
sensibility in the shot to convey their emotions” (Court of Milan, 6 March 2006, on AIDA, 2007, page 792, and
Court of Milan, 7 July 2011, published on www.darts-ip.com).
The Court of Milan recently delivered a
decision on the specific protection of cooking blogs (Court of Milan, 10 July
2013, n. 9763, published on www.darts-ip.com).
The judgment of the Milan Court
basically dealt with the uncommon issue of whether a kitchen recipe may be
protected by copyright – specifically a homemade kind of preserved meat –
posted on a cooking blog.
In fact, the topic under review did not concern
essentially the contents of the recipe or the specific combination of
ingredients to make a specific food, but rather the manner to post a
The Court – and the authors of this article – regarded
this form of expressive representation of the recipe as deserving protection as
a creative work.
Specifically, according to the Court, protection
afforded by copyright “is based, in fact, not on the contents of the recipes
of the various kinds of preserved meats or of the instruction to the various
preparation steps, but rather on the form of expression that needs to be
regarded as relevant for the purposes of the requested protection. It includes both the language and the
exposition of the elements that make up the texts – albeit of simple
construction – and the material result of the activity to search and select
elements that are considered relevant and important. In the case under review,
these form the most significant element of originality that reveals the
subsistence of an albeit minor – as is standard practice in the field of
copyright – personal contribution of the author, which is not restricted to the
mere schematic exposition of
elements that are already known and fully available to any party”.
The quoted decision
could at first sight appear an isolated case of minor importance in the
industry under review. However, it could potentially become a genuine precedent
capable of opening the way to many judgments on similar cases.
this decision specifically concerns information on a cooking blog, it could be
used as starting point for the protection of creative internet contents of many
companies that operate in the food industry, for instance companies – nearly
all today – that dedicate much of their internet pages to the description of
their products, which will thus rely, not only on the protection against unfair
competition, but also on the protection granted by provisions on copyright."