Copyright and gastronomy: are culinary creations protected?

An expanded version of this article was published on Blip!.

Every time an Instagram or Pinterest page loads, users are bombarded with photographs of gourmet dishes. Social media has fundamentally changed the relationship between restaurants and their customers. Diners are now one click away from the recipes of Michelin-starred chefs.

But could such practices infringe the copyright of the creators of these culinary works? A 2013 ruling by the German Federal Court held that a dish plated by a chef is protected by copyright. Is the position the same under French law?

Photographs: no copyright protection for culinary creations

The French Intellectual Property Code and case law provide that only works meeting the criterion of originality are protected. Article L112-2 of the Code lists protected works in a non-exhaustive manner, without including culinary creations.

No French court has found that a dish possesses sufficient originality to warrant copyright protection. Although gastronomy is sometimes regarded as an art in French culture, in legal terms it is treated as know-how, which is not protected by intellectual property.

Conversely, a photograph of a dish, if sufficiently original in its composition, may be protected by copyright — for the benefit of the photographer, not the restaurateur.

Recipes: know-how, not copyright

A recipe itself (list of ingredients and preparation instructions) constitutes know-how. It is difficult to establish originality for a recipe, which is essentially an ordered list of steps. It is also impossible to patent a recipe.

However, it may be possible to take action against unauthorised use if the recipe was confidential and was reproduced without permission by a person bound by a duty of secrecy.

The originality of a recipe’s presentation

Unlike the recipe itself, its presentation may be protected if it bears the stamp of its author’s personality. Cookbooks are protected as original literary works. The same applies to cooking videos. Any unauthorised reproduction of the presentation of these recipes may constitute copyright infringement. For an overview, see the intellectual property services page.

Conclusion

Culinary creations are not protected by copyright in France. However, original photographs and recipe presentations may be. If you have questions about protecting your creations, book a call.

‍