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. But, in Germany, restaurant goers are prohibited from capturing their plate’s aesthetics through the lens because “Food Porn” is banned.
Food porn is the visual experience of something that other people can smell and taste. 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.
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. New York’s, David Chang, owner of Momofuku Ko, prohibits food photography in his restaurant. French chef, Giles Goujon, claims, “[food porn] takes away the surprise, and a little bit of my intellectual property.” 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…”
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. Prior to posting the photo on social media, the diner must ask permission of the master chef—or anticipate a possible copyright warning notice.
Here, in the United States, diners have valid defenses against most intellectual property claims alleged by irate chefs. Food is not protectable under copyright law, therefore, snapping a food photo of uncopyrighted work does not lead to an unauthorized derivative. 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. 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.
For now, restaurant goers in the United States can rejoice and have their cameras ready because food porn is legal.
 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.
 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.
 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/.
 Smith, supra note 1, at 22.
 Romm, supra note 3.
 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.
 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.
 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.
 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.
Photo source: https://ionetheurbandaily.files.wordpress.com/2012/06/food-porn-thumb.jpg