Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, April 15, 2016

Bair on the Utility of Fairness in Copyright

Stephanie Plamondon Bair, BYU School of Law, is publishing Rational Faith: The Utility of Fairness in Copyright in the Boston University Law Review (2016). Here is the abstract.

The biggest debate in copyright law is also the most fundamental: for what purpose does copyright exist? There are two schools of thought about the appropriate answer to this key question. The first, dominant school focuses on economic efficiency, while the second emphasizes fairness and other moral concerns. As evidenced by scholarly response to the Blurred Lines litigation and Mark Lemley’s recent piece, Faith-Based Intellectual Property, proponents of each school are often at odds with each other. There is little middle ground. This either/or view of efficiency and moral rights is detrimental to a productive scholarly debate about the value of copyright. More importantly, it is wrong. Scholars like Jeanne Fromer, Christopher Buccafusco, and David Fagundes have recently pointed out that moral concerns are not necessarily inconsistent with, and could in some circumstances even promote utilitarian ends. Here, I reframe the debate by suggesting that the dichotomy between moral rights and utility should be abolished altogether. Drawing on insights from neuroscience, psychology, and organizational behavior, I demonstrate that when it comes to creation, fairness — a moral rights concern — often is utility in a very real sense. The evidence suggests that treating creators fairly acts as a powerful motivator for creative work, results in objectively more creative output, and aligns well with public and legal decision-makers’ moral intuitions. In other words, the most efficient copyright system is a fair one. This conclusion has implications for both copyright scholarship and policy. On the scholarship side, it builds a tangible bridge between utilitarian and moral rights camps. Moral rights advocates previously accused of a blind faith in the value of fairly administered rights can now respond that their faith is rational. On the policy side, I explain how novel fairness-enhancing mechanisms like individualized permissive use and an increased focus on distributive concerns in applying the fair use doctrine can increase the overall efficiency of the copyright system — a proposition that should appeal to scholars on both sides of the debate.

Download the article from SSRN at the link.

April 15, 2016 | Permalink

Tuesday, April 12, 2016

Kessler on the Early Years of First Amendment Lochnerism

Jeremy K. Kessler, Columbia University, is publishing The Early Years of First Amendment Lochnerism in the Columbia Law Review. Here is the abstract.

From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent. Critics of this trend invoke the specter of Lochner v. New York. They suggest that the First Amendment, the Religious Freedom Restoration Act, and other legislative “conscience clauses” are being used to resurrect the economically libertarian substantive due process jurisprudence of the early twentieth century. Yet the worry that aggressive judicial enforcement of the First Amendment might erode democratic regulation of the economy and enhance the economic power of private actors has a long history. As this Article demonstrates, anxieties about such “First Amendment Lochnerism” date back to the federal judiciary’s initial turn to robust protection of free exercise and free expression in the 1930s and 1940s. Then, it was those members of the Supreme Court perceived as most liberal who struck down economic regulations on First Amendment grounds. They did so in a series of contentious cases involving the Jehovah’s Witnesses, who challenged local peddling taxes as burdening a central aspect of their missionary faith – the mass sale and distribution of religious literature. In dissent, Justice Robert Jackson warned that the new “liberal” majority’s expansive conception of First Amendment enforcement repeated the mistakes of the “liberty of contract” jurisprudence of the Lochner era, undermined democratic regulation of the economy, and imposed the beliefs of some on “the rights of others.” Jackson’s warnings sound strikingly similar to contemporary critiques of First Amendment Lochnerism. Yet today’s critics treat recent case law as a novel, economically libertarian cooption of an otherwise progressive project: the judicial enforcement of civil liberties. In contrast, the Justices and scholars who objected to the 1940s peddling tax decisions perceived an inextricable relationship between judicial civil libertarianism and judicial interference with economic regulation. By recovering the origins and sketching the aftermath of the peddling tax debate, this Article argues that contemporary critics of First Amendment Lochnerism tend to overstate the phenomenon’s novelty and underestimate the difficulty of curing judicial civil libertarianism of its “Lochnerian” tendencies. This argument, in turn, counsels a reorientation of contemporary advocacy. Rather than defending an illusory tradition of economically neutral First Amendment enforcement, critics of today’s First Amendment Lochnerism might more accurately and persuasively position themselves as reformers. They could then set to work breaking with a legal tradition long insensitive to the deleterious effects of judicial civil libertarianism on political regulation of the economy.

Download the article from SSRN at the link.

April 12, 2016 | Permalink

Kamatali on The Limits of the First Amendment in the Era of the Internet and the Global Marketplace of Ideas

Jean-Marie Kamatali, Ohio Northern University, is publishing The Limits of the First Amendment: Protecting American Citizens’ Free Speech in the Era of the Internet & the Global Marketplace of Ideas in volume 33 of the Wisconsin International Law Journal (2016). Here is the abstract.

The number of countries that limit speech that would likely be protected under the US First Amendment has recently increased. On the other hand new information technology is making speech made in the United States by an American citizen accessible outside the United States, exposing the speaker to consequences for violating the free speech limitations set in international law or the domestic laws of other countries. These Americans are therefore often forced to make a difficult choice: exercise in the US their free speech as guaranteed by the US First Amendment and potentially expose themselves to prosecution and other legal consequences overseas, or accept those free speech limitations to avoid the consequences of violating them. This Article argues that the US recourse to reservation and refusal to ratify treaties that limit free speech may not be enough in today’s era of globalization, information technology, and free movement of people. This approach may shelter the United States from its international human rights obligations, but it does not provide US citizens protection in countries that have incorporated these treaties into their domestic law. Also the use of diplomacy to free American victims of such limitations is not sustainable. The Article advocates rather for the United States to adopt an international relations free speech strategy that starts from the recognition that free speech is not absolute, rather than focusing on the slippery slope argument of free speech limitation. From this recognition, the United States could lead other countries in developing better standards in defining protected and unprotected speech, and thus ensure her citizens better free speech protection overseas.

Download the article from SSRN at the link.

April 12, 2016 | Permalink

Subotnik on Artistic Control After Death

Eva E. Subotnik, St. John's University School of Law, is publishing Artistic Control After Death in volume 92 of the Washington Law Review (2017). Here is the abstract.
To what extent should authors be able to control what happens to their literary, artistic, and musical creations after they die? Looked at through the lens of a number of succession law trends, the evidence might suggest that strong control is warranted. The decline of the Rule Against Perpetuities and rise of incentive trusts portray a tightening grip of the dead hand. And yet, an unconstrained ability of the dead to determine future uses of works of literature, art, and music is a fundamentally troubling notion. This article evaluates instructions given with respect to authorial works against the backdrop of the laws and policies that govern bequests more generally. In particular, it considers the enforceability of attempted artistic control through the imposition of a fiduciary duty. In balancing the competing interests, this article considers the demands of both state trust laws and federal copyright policy. In the end, the article argues that authorial instructions must yield to the needs of the living. Such a view requires that, to the greatest extent possible, some living person(s) be authorized to decide how works of authorship are used — even if that means overriding artistic control by the dead.
Download the article from SSRN at the link.

April 12, 2016 | Permalink

Monday, April 11, 2016

Daily Mail Parent Company Investigating Possible Acquisition of Yahoo

The Daily Mail and its parent company General Trust are considering a takeover of Internet search/social media company Yahoo. DMGT has been in talks with various privacy equity firms discussing what kind of financial deal it could work out for such a transaction. Other companies, however, are also interested in acquiring Yahoo, including Verizon. More here from the Guardian, here from Reuters.

April 11, 2016 | Permalink

Thursday, April 7, 2016

Snow on Content-Based Copyright Denial

Ned Snow, University of South Carolina, is publishing Content-Based Copyright Denial in volume 90 of the Indiana Law Journal (2015). Here is the abstract.
No principle of First Amendment law is more firmly established than the principle that government may not restrict speech based on its content. It would seem to follow, then, that Congress may not withhold copyright protection for disfavored categories of content, such as violent video games or pornography. This Article argues otherwise. This Article is the first to recognize a distinction in the scope of coverage between the First Amendment and the Copyright Clause. It claims that speech protection from government censorship does not imply speech protection from private copying. Crucially, I argue that this distinction in the scope of coverage between copyright and free speech law does not suggest a tension between them. To the contrary, the distinction enables copyright to further the purpose of free speech under the marketplace-of-ideas speech theory. Through copyright, Congress may alleviate failures in that marketplace which stem from individuals determining the value of speech for the collective. Furthermore, the possibility of Congress abusing this discriminatory power poses relatively minimal threat to speech because copyright denial does not altogether prevent speakers from realizing profit from their speech. This fact, coupled with viewpoint-neutrality and rational-basis restraints, alleviates the usual risks associated with government influencing content in the marketplace. Additionally, free-speech doctrine leaves room for the sort of discrimination that Congress would exercise in defining copyright eligibility according to content. Doctrines governing limited-public forums and congressional funding allow for content discrimination akin to content-based copyright denial.
Download the article from SSRN at the link.

April 7, 2016 | Permalink

Long on the Lawyer As Public Figure For First Amendment Purposes

Alex B. Long, University of Tennessee College of Law, is publishing The Lawyer as Public Figure for First Amendment Purposes in the Boston College Law Review. Here is the abstract.
Should lawyers be treated as public figures for purposes of defamation claims and, therefore, be subjected to a higher evidentiary standard of actual malice under the Supreme Court’s decision in New York Times v. Sullivan? The question of whether lawyers should be treated as public figures raises broad questions about the nature of defamation law and the legal profession. By examining the Supreme Court’s defamation jurisprudence through the lens of cases involving lawyers as plaintiffs, one can see the deficiencies and inconsistencies in the Court’s opinions more clearly. And by examining the Court’s defamation cases through this lens, one can also see more clearly some of the complexities the legal profession now faces and the sometimes uncertain nature of its role.
Download the article from SSRN at the link.

April 7, 2016 | Permalink

Wednesday, April 6, 2016

Snow on Free Speech and Disparaging Trademarks

Ned Snow, University of South Carolina, is publishing Free Speech & Disparaging Trademarks in volume 57 of the Boston College Law Review (2016). Here is the abstract.

Speech law has silenced trademark. A few months ago, the Federal Circuit ruled that the First Amendment requires Congress to grant trademark protection for disparaging speech. The ruling overturns decades of precedent that upholds the constitutionality of the anti-disparagement provision in the Federal Lanham Act. But the ruling does not end the debate. The issue is currently pending before the Fourth Circuit, and given its national scope, the issue is certain to be heard by the Supreme Court. This Article argues against the Federal Circuit decision. As illustrated by the five different opinions from the en banc panel, the complexities of speech law easily lead to disparate conclusions, any one of which may seem reasonable. Yet if there is one principle of speech law that is certain, it is this: context is dispositive. The context of trademark law is particularly nuanced, so a failure to account for that context easily produces inconsistencies in doctrine and policy. Tellingly, none of the Federal Circuit’s five opinions consider whether the Majority’s holding is consistent with the rest of trademark law. None of the judges recognized that trademark law imposes other content-based criteria as conditions for protection — and has done so for over a century. Simply put, the Majority merely applied speech law to the narrow provision under consideration, failing to account for the broader context of trademark law. This Article provides that context. This Article concludes that the constitutionality of the anti-disparagement provision cannot be doubted in view of the constitutionality of trademark law itself.

Download the article from SSRN at the link.

April 6, 2016 | Permalink

Adamson on Racist and Racialized Distortions in Media Coverage of Michael Brown and the Ferguson Demonstrations

Bryan L. Adamson, Seattle University School of Law, is publishing 'Thugs,' 'Crooks,' 'Rebellious Negroes' and 'Black Saviors': Racist and Racialized Distortions in Media Coverage of Michael Brown and the Ferguson Demonstrations in volume 32 of the Harvard Journal on Racial & Ethnic Justice. Here is the abstract.

Michael Brown’s death at the hands of Darren Wilson should have prompted a mass-mediated dialogue about institutional racism, implicit bias, and policing. Instead, mainstream media pursued a narrative in which Brown was the protagonist, Wilson was victim, and Black protesters were cast as reactionaries bent on social chaos. In the course of the Ferguson demonstration coverage, the worst narrative devices perpetuated jaundiced stereotypes about African-Americans, crime and criminality. To be sure, we have seen a similar pattern with the media in its account of events surrounding the deaths of Eric Garner, Tamir Rice, and Freddie Gray. The article explores how the media constructs news, and offers extensive history on the adverse narrative media tropes about Black men since colonial newspapers. Through qualitative and quantitative analysis of news narratives and images, this article demonstrates how Ferguson accounts emphasized Brown’s deviance and chaos and disorder. After offering comparative analysis of White criminality and protest news narratives, the article presses upon the social effects of racist and racialized media narratives. The article examines the controversy through First Amendment free speech, hate crimes, and true threat principles as well as FCC regulation of broadcasting, and media ownership. While explicating the First Amendment, regulatory and institutional barriers to curing the harms created, the article arrives upon promising institutional and extra-institutional reforms which can at least provide robust counter-narratives. This article examines the effects of the media’s insistent framing of African-Americans engaged in illegitimate, irrational, and even criminal expressions of dissent. In doing so, the author contends that in rationalizing and restructuring African-American deviance and dissent, the media reasserted a majoritarian ideology in which Whiteness — upon which our social, political, and economic institutions are constructed — maintained its status as the dominant order, and law enforcement responses to “disorder” were endowed with a presumptive correctness. In hewing to a pro-majoritarian orthodoxy, the media ignored the role institutional racism and implicit bias played in Brown’s death. Simultaneously, the media sublimated the more urgent socio-political grievances demonstrators sought to surface around law enforcement and the justice system. This article seeks to impress upon the reader the most injurious long-term impact of the news media approach to the Ferguson saga. As a basis of discourse, news is just one type of media content that enables a society to build consensus (if not agreement) over myriad social problems, and solutions to those problems. By constructing Brown as the blameworthy ‘victim’ from the outset, and through unrelenting focus upon Ferguson looting and criminality, the media subverted and derailed any real opportunity to have a meaningful discourses around race, law enforcement and justice system reform, or the myriad social, political, and economic issues Ferguson came to symbolize.

The full text is not available from SSRN.

April 6, 2016 | Permalink

Thursday, March 31, 2016

FCC Issues NPRM On Broadband Privacy Guidelines For ISPs

The FCC has issued a Notice of Proposed Rulemaking that would establish privacy guidelines for ISPs offering broadband services. The new rules would ensure that consumers understand and consent to the purchase of ISP broadband services, and that ISPs providing such services using collected consumer data use such data provide their customers with opportunities to "opt in" and "opt out" of marketing those ISPs' services.  The proposed rules would also require that ISPs give timely notice to consumers, the FCC, and appropriate other government agencies, including the FBI, in cases of breach.

More here in the FCC's press release.

March 31, 2016 | Permalink

Chin and Workewych on The CSI Effect

Jason Michael Chin, University of Toronto Faculty of Law, and Dentons Canada LLP, and Larysa Workewych, Queen's University, Faculty of Law, have published The CSI Effect. Here is the abstract

The CSI Effect posits that exposure to television programs that portray forensic science (e.g., CSI: Crime Scene Investigation) can change the way jurors evaluate forensic evidence. The most commonly researched hypothesis under the CSI Effect suggests that shows like CSI depict an unrealistically high standard of forensic science and thus unreasonably inflate the expectations of jurors. Jurors are thus more likely to vote to acquit, and prosecutors face higher burden of proof. We review (1) the theory behind the CSI Effect, (2) the perception of the effect among legal actors, (3) the academic treatment of the effect, and (4) how courts have dealt with the effect. We demonstrate that while legal actors do see the CSI Effect as a serious issue, there is virtually no empirical evidence suggesting it is a real phenomenon. Moreover, many of the remedies employed by courts may do no more than introduce bias into juror decision making or even trigger the CSI Effect when it would not normally occur (i.e., the self-fulfilling prophesy). We end with suggestions for the proper treatment of the CSI Effect in courts, and directions for future scholarly work.

Download the article from SSRN at the link.

March 31, 2016 | Permalink

Frosio on Digital Threats and Intermediary Liability

Giancarlo F. Frosio, Stanford Law School, CIS, is publishing Digital Piracy Debunked: A Short Note on Digital Threats and Intermediary Liability in volume 5 of the Internet Policy (2016). Here is the abstract.

In the last two decades, the industry has deployed endlessly the rhetoric of the “digital threat” in order to demand harsher measures against digital piracy. Recently, the “digital threat” discourse called for enhanced liability of online intermediaries, especially those whose platforms may be used to infringe copyright. This short paper shows that the “digital threat” discourse is based on shaky grounds. Two related arguments might run against this approach. First, market conditions might incentivise piracy. Additionally, there are raising doubts over the argument that piracy is a threat to creativity, especially in the digital environment. Overall, it may be hard to find a factual justification for policy decisions based on the “digital threat” discourse. In fact, digital technology seems not to have negatively affected the creation of new works. In contrast, an observation of the literature and quantitative analysis on point may suggest that digital piracy can be an opportunity for the cultural market. Finally, piracy may function as an innovation policy by forcing market players to innovate in response to a consumer demand that widespread piracy highlights.

Download the article from SSRN at the link.

March 31, 2016 | Permalink

Rahmatian on the Elements of Music Relevant For Copyright Protection

Andreas Rahmatian, University of Glasgow, School of Law, has published The Elements of Music Relevant for Copyright Protection in Concepts of Music and Copyright: How Music Perceives Itself and How Copyright Perceives Music 78-122 (A. Rahmatian ed., Cheltenham: Edward Elgar, 2015). Here is the abstract.

One may argue that copyright law has no genuine understanding of the nature of music as an art form; it attaches to certain aspects of music which it declares as normatively relevant and thus ascertains building blocks of the legal protection system. In this way music is considered as an object of legal transactions, especially as an object of transferable property. This is a result of the translation process of music into legal categories. This chapter looks at the elements and stages of this process, starting with sketching out a philosophical discussion of the phenomenon of music as a basis for copyright protection.

Download the essay from SSRN at the link.

March 31, 2016 | Permalink

Wednesday, March 30, 2016

Chien on Silbey, "The Eureka Myth"

Colleen V. Chien, Santa Clara University School of Law, is publishing Beyond Eureka: What Creators Want (Freedom, Credit, and Audiences) and How Intellectual Property Can Better Give it to Them (by Supporting Sharing, Licensing, and Attribution) in the Michigan Law Review. Here is the abstract.

What do creators want? Jessica Silbey’s book, the Eureka Myth, distills the answers she received to this question over the course of interviews with more than fifty filmmakers, photographers, hardware and software engineers, business executives working with pharmaceutical, medical device, and telecommunications companies, and others. While many purport to speak for creators, Silbey’s subjects speak for themselves, through long excerpts that appear throughout the book. In this book review, I combine their insights with other historical and modern empirical accounts to carry out the thought experiment of what an intellectual property system keenly attuned to the needs of creators – knowing that creators are not the only constituent that the intellectual property system needs to care about – might look like. I find, perhaps unsurprisingly, that what creators really want is freedom, credit, and audience. While intellectual property may seem orthogonal to these aims, it can often directly support, but at other times counter, their achievement. An artist whose song becomes the basis for a national commercial can use the royalties from that to support her for years. But copyright and patents can also send the wrong message – mis-signaling through exclusive rights the message that access and use are prohibited and sending away the audiences that feed the creative spirit. In an ideal world, intellectual property would feature more ways for creators to customize the ways in which they engage with the world through their inventions and creations. It would better support sharing, licensing, and attribution, so that intellectual property can be configured to support with the evolving desires of their creators. While lawmakers wrestle with challenging policy topics like abusive patent litigation and copyright statutory damages, they should also keep in mind the needs and desires of creators as human beings, to create, to be heard, and to be recognized.

Download the review from SSRN at the link.

March 30, 2016 | Permalink

Canadian Radio-Telecommunications Commission Reports That Canadian Consumers Have Lots of Complaints About TV Services

The Canadian Radio-Telecommunications Commission reports that consumer complaints about tv services account for two-thirds of complaints about telecom services, although complaints overall are down compared to this time last year. Other complaints to the agency included concerns about phone services (landline and wireless) and about internet services. Unfortunately the CRTC couldn't assist consumers with complaints about TV services in the past, but beginning this year, it can move to assist Canadian subscribers with those concerns (see here).  More here on Canadian government television policy here.

 

More here from CBC News.

March 30, 2016 | Permalink

Guadamuz on The "Monkey Selfie," Copyright, and Internet Jurisdiction

Andrés Guadamuz, University of Sussex, is publishing The Monkey Selfie: Copyright Lessons for Originality in Photographs and Internet Jurisdiction in volume 5 of the Internet Policy Review (2016). Here is the abstract.
In 2011, a macaque monkey used a camera belonging to British photographer David Slater in Indonesia to take a self-portrait. The selfie picture became famous worldwide after it was published in the British media. In 2014 Slater sent a removal request to Wikimedia Commons, which indicated that the picture was in the public domain because it had been taken by the monkey and animals cannot own copyright works. While most of the legal analysis so far has been centred around US law, this article takes a completely different approach. Re-assessing jurisdictional issues, I examine the case from a UK and European perspective. The monkey selfie is of importance to internet policy: it has a lot to teach us about online jurisdiction. Under current originality rules, David Slater has a good copyright claim for ownership of the picture.
Download the article from SSRN at the link.

March 30, 2016 | Permalink

Tuesday, March 29, 2016

Leong and Dalpiaz on Media Coverage of Law Enforcement's Use of Excessive Force

Nancy Leong and Miranda Dalpiaz, both of the University of Denver College of Law, are publishing Excessive Force and the Media in the Cornell Law Review Online (March 2016). Here is the abstract.

Recent allegations of police officers using excessive force against people of color have received considerable attention in the media. Yet such incidents have largely stalled in the legal system. With a few notable exceptions, neither criminal nor civil proceedings, at either the federal or state level, have provided recourse for those injured by the police or for the families of those killed by the police. This Article examines the media coverage of police excessive force in relation to one federal statute bridging criminal and civil rights concerns — 18 U.S.C. § 242. While the statute is criminal in nature, allowing federal prosecution against government officers who willfully violate constitutional rights, it addresses civil rights concerns by offering a remedy against those who use state force to infringe civil rights. An empirical examination reveals that — despite considerable media coverage of police excessive force — such coverage is reactive rather than proactive when it comes to federal civil rights charges. That is, it discusses such charges only when an investigation is already underway, rather than examining whether one will or should take place. An original empirical survey of ten years of coverage by thirty-six major newspapers reveals that, of 445 articles that discussed federal civil rights charges, only forty-four, or 9.89%, did so proactively rather than reactively. Such an approach is uncharacteristic for the media, which typically plays an important role in questioning whether the government should take action in rectifying alleged abuses of power directed against citizens. The Article considers why the media has assumed a more reactive role in police excessive force cases than in other cases involving civil rights violations, discusses the consequences of this role, and finally proposes a number of ways that media coverage of police excessive force incidents should be improved.

Download the article from SSRN at the link.

March 29, 2016 | Permalink

O'Donoghue and Pascoe on Net Neutrality in the EU

Robert O'Donoghue and Tom Pascoe, both of Brick Court Chambers, have published Net Neutrality in the EU: Unresolved Issues Under the New Regulation. Here is the abstract.

This article explores some of the key issues that are likely to arise under Regulation (EU) 2015/2120 ("the Net Neutrality Regulation"), including the meaning of "necessity" and "detriment" under Article 3(5) of the Regulation, the scope of the prohibition on "commercial considerations", and the relationship between providers' rights to provide optimised services under Article 3(5) and their right to apply reasonable traffic management measures under Article 3(3).

Download the article from SSRN at the link.

March 29, 2016 | Permalink

Thursday, March 24, 2016

Garon on the Lawyer's Role in Promoting the Use of Fair Use

Jon Garon, Shepard Broad College of Law, has published The Lawyer's Role in Promoting the Use of Fair Use. Here is the abstract.
A third party’s ability to exploit a literary work, photograph, film, song, or database will depend on the nature of the copyright owner’s work and the third party’s usage. This article provides an introductory standardization to help lawyers answer questions regarding the contours of copyright, fair use, and select limitations on copyright in order to provide a simple guide to reduce a bit of the uncertainty. The purpose is to provide a framework for how a lawyer can respond to the common question of whether a particular use of copyrighted works is permitted by a third party and to place the framework for the answer in the context of an opinion letter. In this way, the third party user will have an answer that can be relied upon when seeking publication or Errors & Omissions Insurance for distribution and exhibition.
Download the essay from SSRN at the link.

March 24, 2016 | Permalink

Ciani on IP Rights and Legal Protection for Culinary Creations

Jacopo Ciani, University of Milan, Faculty of Law, Private Law and History of Law Department, has published Intellectual Property Rights and the Growing Interest in Legal Protection for Culinary Creations in World Food Trends and the Future of Food 15-32 (M. Nobile eds., Milan: Ledizioni, Milano, 2015). Here is the abstract.

The way of looking at food has undergone an impressive development. Originally conceived just as a perfunctory activity it transformed into a competitive, large-revenue, multimedia consumer industry for entertainment and leisure. The emergence of cooking literature, celebrity chefs, competitive cooking tv programs is the evidence that all relate food is today a super-sized business opportunity. This increasing potential for fame and financial reward acts as a great stimulus for young chefs to innovate new dishes and culinary style, conscious that the level of creativity in their menus will likely determine their success. If menu items, original dishes and recipes became a competing weapon, allowing chefs to be preferred by the public, it is a logic consequence for them to attempt invoking intellectual property rights to protect them from pirating and misappropriation by competing restaurateurs. Unfortunately, Courts response to chefs’ demand of protection is most of the times unsatisfactory. Especially in the U.S., but also in the old continent, the case law has shown to be hostile to the copyrightability of recipes. They are considered as instructions for creating an edible product rather than a creative expression of the sort that copyright law is designed to protect. As a consequence food has been described as one of copyright’s negative areas. Some commentators have criticized this trend and suggested the need for changing the copyright law so that chefs own and protect their recipes the same way composers own their music. I share the view that chefs should deserve greater respect as "authors" of their cuisine. Copyright protection should be granted not only to recipes and cookbooks but to the food itself. It is hard not to see how the presentation, arrangement or appearance of dishes, sometimes referred as the “plating technique” is a full creativity exercise worth of copyright protection.

Download the essay from SSRN at the link.

March 24, 2016 | Permalink