Eat Your Art Out: Intellectual Property Protection For Food

Let’s face it, we live in a food-crazed world.  Our current preoccupation with food has less to do with eating it; we also are fascinated with looking at it.  Posting photos of food on Instagram is now a universal pastime.  Food reality shows like Top Chef, Cake Boss, and Chopped are extremely popular and chefs are now considered bona fide celebrities, known internationally for their signature recipes.

Many top chefs today are also known for their artistic food designs and arrangements.  Speaking of art, there are even museums completely dedicated to food, like the food museum in Hangzhou, China, where visitors can gaze at artistically-plated Chinese dishes.  Other food museums have also popped up, including New York’s Museum of Food and Drink and Chicago’s Foodseum.  Some might say that our current fixation with looking at food is teetering on obsession.  We have even coined the phrase “food porn” to describe this obsession. According to Wikipedia, food porn is an over-glamourized visual presentation of food.  Not surprisingly, there are currently almost over 89 million Instagram posts for #foodporn. 

Copycat Cuisine, Unlawful or Just Distasteful?

A recent obsession for many are the pastry masterpieces created by Blue Bottle Coffee’s pastry chef Caitlin Freeman, inspired by iconic works of art.  Her signature “Mondrian cake” (inspired by Piet Mondrian’s painting “Composition (No. III) Blanc-Jaune/Composition (No. III) with Red, Yellow, and Blue”) is particularly well-known for its artistic elements.  Freeman created her art-inspired desserts at San Francisco Museum of Modern Art (SFMOMA), where Blue Bottle operated a café from 2009 until 2013, when SFMOMA closed its doors for a three-year expansion project.  During that time, Blue Bottle lost its contract to operate at the museum, and when SFMOMA reopened last month, Freeman was shocked to learn that Blue Bottle had been replaced by another café (McCall Catering’s Café 5) that was  apparently selling similar art-inspired cakes.

To read the rest of the story, please go to: Foley Hoag, LLP