Protecting cuisine in Italy: photographs of dishes and recipes in recent case law

Not an average risotto

The recent 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?

1709 Blog friends Margherita Bariè and Marco Annoni (Carnelutti Law Firm) provide an overview of recent Italian case law on this very point.

Here’s what they write:

“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 exports. 

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.

Photographs of dishes

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). 

Thus, “the 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).

Culinary recipes

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 preserved-meat recipe. 

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.

Moreover, although 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."