Copyright and Functionality:
Thoughts on Copyrighting Food: Aesthetics and Function

Comments by Posted: 2/3/98 to cni-copyright@cni.org

At 08:49 AM 2/2/98 -0800, Iris Brest wrote:
>
>On 1/30/98, Robert A. Baron <> wrote:
>>
>> Analogously, when a cake is produced by following a recipe, there must
>> be a copyright in the final product (ephemeral though that product may
>> be). Now that food is being shown in museums as works of art, this is
>> not as bizarre as it may at first seem. But, if the underlying recipe
>> were to be copyrighted, we must ask whether the cake is somehow
>> derivative of the recipe. What if the recipe contained a picture of
>> what the final cake were to look like; would the final product be
>> derivative of that image? I'd say that the recipe serves as a procedure
>> which is analogous to an "idea," the production of which -- the cake --
>> is copyrightable and fixed. The picture that accompanies the recipe is
>> not "copied" by the baked cake, but merely serves as a visualization of
>> what the procedure leads to.
>
>Why a derivative work? Or rather, why not a performance of the work?

Because the Proof of the Pudding is in the Eating, not in the making.

===

Some of the discussions during the last few days regarding the copyrightability of food set up an opposition between the "utility" or functionality of food and its aesthetic presence. If food is merely functional, then copyright law cannot be applied to it; however, if it is a "creation" in the sense that it is "aesthetic," then (Jessica Litman's "Eleven Yummy Flavors" aside notwithstanding) food would seem to be subject to copyright as a creative object.

It is interesting how this dichotomy of "functional" vs. "aesthetic" is used in law to apply copyright, especially since the history of art in this century has gone to great efforts to show that these distinctions are not quite real. The Dada movement of the early decades of this century went to great pains to reveal in functional objects their aesthetic alter egos. Toilet bowls, clothing irons, teacups, stools and bicycles among other items were transformed by Dada artists into unusable items of artistic import by intentionally subverting their conventional functions. Thus a toilet bowl is up-ended and renamed "Fountain;" a clothing iron (dubbed "Gift") is ruined by tacks welded to its flat end, teacups are fur-lined, bicycle wheels spun upside-down on a barstool pedestal and so on. The results of these experiments led to the conclusion that mundane functional elements had aesthetic import and that only by conscious acts could these characteristics be separated. Thus Claes Oldenberg, working in a neo-Dada spirit, builds a "soft" toilet, or the Museum of Modern Art enshrines objects of commercial manufacture in display cases so better to enhance the appreciation of the aesthetics of function. And here, expectedly, the very process of display subconsciously sabotages the object's functionality.

This is the context in which the question of "food" as art must be understood. Since any object, from a "functional" chair to a cork-screw can become a work of art, to be appreciated independently of its function, then a cake, if so claimed, can be a work of art or function as an edible desert. It can be both, of course, but not at the same time. (Typically the cake would be a work of art first and an edible second; though, I can envision a contemporary performance artist who might wish to reverse the process.)

The above parenthetical remark notwithstanding, under such circumstances it is easy to understand why a great pastry chef would want to copyright a cake or patent its formulation -- just as Merk patents its medicines.

What remains of functionality if design elements can be copyrighted? I suppose we are cast back into the world of Platonic essences: "chairness" and "corkscrewness" is all that is left. The logical conclusion of this enterprise leads to a society will become paralyzed under the force of too many competing interests. Such a society must ask itself anew what should be kept in the public domain and what should not.

Return to E-Mail Menu | Return to Home Page |