Are culinary photographs and recipes protected by copyright in France?

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Each time an Instagram or Pinterest page loads, the Internet user is bombarded with photographs of gourmet dishes, each more enticing than the last. The term”Food Porn“or “food pornography”, a bit vulgar but particularly colourful, has even been invented to describe such a practice.

Social networks have completely changed the relationship between restaurant owners and their customers and the field of “food” has been overwhelmed by web culture.

Customers are now one click away from the recipes of the greatest Michelin-starred chefs: they can reproduce a dish that is on the menu of their restaurants at home, provided they have the right amount of help, or at the very least drool while admiring the master dressing.

The foodie community thus shares the most beautiful photos of food, and maintains the appetite of gourmands around the world.

However, such a practice could infringe the copyright of the creators of these culinary works.

One Case law of the German Federal Court from 2013 has brought this problem back to the forefront. The German judges considered that a plate set by a chef in a restaurant is protected by copyright and cannot therefore be reproduced as a photo without the agreement of the chef concerned.

Is the case law similar in France? And what about the reproduction of a chef's recipe on a culinary site?

Photographs - the lack of copyright protection of culinary creations

The Intellectual Property Code and case law indicate that only Works that meet the criterion of originality are protected. By originality, it is understood that it bears the stamp of the author's personality.

THEArticle L112-2 of the Code lists the works of the mind in a non-exhaustive way, and does not include culinary creations and their appearance.

Therefore, the article does not exclude the principle of such protection. However, no decision has so far considered that a dish was sufficiently original in itself to justify copyright protection.

Although gastronomy is sometimes considered an art in French culture (the term culinary art is after all frequently used), in the legal sense it is more like know-how, which is not protected by intellectual property.

As a result, nothing prevents the customer from taking a photograph of his dish and using it later.

The only contrary argument that could be put forward, especially for Michelin-starred chefs whose dressing skills are particularly important, would be that the dish presented in the restaurant is composed in such an original way that it can only be imbued with the personality of the chef. Until now, this argument has never been accepted by a court, if it has even been proposed by a daring lawyer.

Conversely, the photograph of the dish, if it is sufficiently original in terms of its composition, may be protected by copyright... for the benefit of the photographer and not of the restaurateur. It will still have to be the subject of a specific presentation that reflects the personality of the author. It is difficult to imagine that a simple photograph of a plate on a restaurant table would be considered original.

The cooking recipe, a know-how in the sense of intellectual property

What about the recipe? Can we consider that the list of ingredients and products required as well as the instructions for preparing them are protected by copyright?

By the recipe, it is understood only how the dish can be prepared. It should be distinguished from the presentation of the recipe, which refers to the way in which the recipe is provided to the public.

It is difficult to prove originality in the sense of copyright for the recipe itself. Indeed, although chefs all develop a distinct style, it is not possible to perceive the seal of the chef's personality when it is only a list organized in order of the various steps necessary to design a dish.

In reality, the recipe falls under knowhow, which is not protected by intellectual property title. It is also impossible to patent a cooking recipe.

However, it will be possible to defend yourself against unauthorized use, if the recipe was confidential and was reproduced identically without authorization, for example by a former clerk subject to secrecy or a non-disclosure clause, but not under intellectual property.

The originality of the presentation of the recipe

Unlike the recipe itself, the presentation of the recipe can be considered original, if it is imbued with the seal of the author's personality.

This will be the case, for example, if it is presented in literary form or in a specific presentation. Cookbooks are thus protected by copyright as original works, as long as the person composed his book to present his recipes in the most attractive way possible for his readers. It is then a literary work.

The same goes for food videos, which are audiovisual works that may benefit from copyright protection.

Any unauthorized reproduction of the presentation of these recipes, for example on websites or blogs, may therefore be considered counterfeit and punishable.

As a result, it is possible or even encouraged to make your mouth water on social networks, in front of the culinary creations of the greatest chefs. As for reproducing them, it will certainly be necessary to train!