Blog: #FoodPorn in the US – Is it Illegal?

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By: Jenni Lyman,

The salmon roe and sweet red onion crème fraiche topped with salmon tartare, molded into a dome resembling a scoop of ice cream, placed into a cone-shaped black sesame tuile, and served to diners in a standing rack is uncontestably picture worthy.[1] But, in Germany, restaurant goers are prohibited from capturing their plate’s aesthetics through the lens because “Food Porn” is banned.[2]

Food porn is the visual experience of something that other people can smell and taste.[3] Amateur food photography is a new cultural phenomenon dictated by those who wish to document their restaurant visits or kitchen creations on social media sites such as Facebook, Instagram, and Twitter.[4]

Globally, many chefs around the world believe food porn is more sinister than the innocuous vibrant rainbow of macaroons or the “pillowy gnocchi” that skulks one’s newsfeed.[5] New York’s, David Chang, owner of Momofuku Ko, prohibits food photography in his restaurant.[6] French chef, Giles Goujon, claims, “[food porn] takes away the surprise, and a little bit of my intellectual property.”[7] Some chefs proffer more practical reasons. British chef, Daniel Doherty, tweeted, “I don’t mind…but if said [pictures] take [ten minutes] and you complain food is cold…”[8]

In Germany, it is held that the cook is regarded as the creator of the work for food that is carefully arranged in a famous restaurant.[9] Prior to posting the photo on social media, the diner must ask permission of the master chef—or anticipate a possible copyright warning notice.[10]

Here, in the United States, diners have valid defenses against most intellectual property claims alleged by irate chefs.[11] Food is not protectable under copyright law, therefore, snapping a food photo of uncopyrighted work does not lead to an unauthorized derivative.[12] Secondly, even if a chef claims trade dress in respect to his food plating, a diner’s post of their plated moules-frites on Instagram would be considered nominative fair use under trademark law.[13] Finally, patent infringement does not lend itself to a cause of action against food porn because the diner does not, “make, use, offer to sell, or sell” the patent product.[14]

For now, restaurant goers in the United States can rejoice and have their cameras ready because food porn is legal.

 

 

 

 

[1] Cathay Y. N. Smith, Food Art: Protecting “Food Presentation” Under U.S. Intellectual Property Law, 14 J. Marshall Rev. Intell. Prop. L., 2014, at 1, 2.

[2] Katie Amey, ‘Food porn’ censored: Why it’s ILLEGAL to upload pictures of meals to Instagram in Germany, Daily Mail, Aug. 18, 2015, http://www.dailymail.co.uk/travel/travel_news/article-3202031/Food-porn-censored-s-ILLEGAL-upload-pictures-meals-Instagram-Germany.html.

[3] Cari Romm, What ‘Food Porn’ Does to the Brain, The Atl., Apr. 20, 2015, http://www.theatlantic.com/health/archive/2015/04/what-food-porn-does-to-the-brain/390849/.

[4] Smith, supra note 1, at 22.

[5] Romm, supra note 3.

[6] Cathay Y. N. Smith, Food Art: Protecting “Food Presentation” Under U.S. Intellectual Property Law, 14 J. Marshall Rev. Intell. Prop. L., 2014, at 22.

[7] Id.

[8] Xanthe Clay, Is it wrong to photograph your food in restaurants?, The Tel., Feb. 19, 2014, http://www.telegraph.co.uk/foodanddrink/restaurants/10648419/Is-it-wrong-to-photograph-your-food-in-restaurants.html.

[9] Helena Horton, Could your Instagram ‘food porn’ posts actually be illegal?, The Tel, Aug. 19, 2015, http://www.telegraph.co.uk/technology/11811694/instagram-pictures-food-porn-illegal.html.

[10] Id.

[11] Cathay Y. N. Smith, Food Art: Protecting “Food Presentation” Under U.S. Intellectual Property Law, 14 J. Marshall Rev. Intell. Prop. L., 2014, at 23.

[12] Id.

[13] Id.

[14] Id.

Photo source:  https://ionetheurbandaily.files.wordpress.com/2012/06/food-porn-thumb.jpg