Why your #foodporn could be breaking the law (and it’s not what you think)

Social media and food photos go together like jam and bread, tea and scones or an ice cream on a hot summer’s day.  Some of the most successful accounts on Instagram are those of food bloggers who share snaps of their own creations and meals they’re enjoying at restaurants and even Facebook feeds see a smattering of images of fancy eats that aim to instil envy.

Whether you’re a fan of #foodporn or shy away from contributing and consuming such photos, you may not be aware of the potential copyright pitfalls. We’ve spoken on the blog before about brands taking photos from social media and using them without permission, but today we’re considering something a little different: does food arrangement count as art?

Food as art: the context

Copyright grants the creator of an original work exclusive rights to its use and this is commonly understood to apply to works of art, statues, and paintings along with literary works where the arrangement of words on a page can be construed to have required the expertise of the author. But should copyright protection also be applied to the arrangement of food on a plate and if so, do the images we see on social media breach that copyright?

Chefs (and judges) in Germany appear to think so. An article in German newspaper Die Welt on August 13th states: “In individual cases, shared pictures may be illegal. At worst, a copyright warning notice might come fluttering to the social media user. For carefully-arranged food in a famous restaurant, the cook is regarded as the creator of a work. Before it can be made public on Facebook & Co., permission must first be asked of the master chef.”

In reality, your local pizzeria is unlikely to object to you posting photos of your takeaway tea on Instagram. In fact, they may actually use different tactics to encourage you to do so in order to promote their product. But the topic of food arrangement as art can definitely be considered to have grey areas, which are considered in this journal review, Food Art: Protecting “food presentation” under US Intellectual Property Law. It opens by explaining that in 2006 one Australian chef was accused of copying dishes by American chefs, right down to the presentation of the dishes. The matter was raised on chef’s forum eGullet and you can view some images of the alleged copying in the journal review and read more details of the matter in Protecting cuisine under the rubric of intellectual property law: Should the law play a bigger role in the kitchen?

Firstly, there are two main threads to consider: is it legal or ethical to imitate another chef’s recipe? And secondly, is it ok to recreate or copy the presentation of food? Food is subject to trends and in much the same way as fashion or art there may be on particular item or perhaps a cooking or presentation technique that becomes very ‘of the moment’. However, having a prawn cocktail appear on the menu at many restaurants is not the same as a prawn cocktail with a particular culinary twist presented in an identical way appearing on the menu at two different restaurants.  Just as fashion trends on the catwalk are watered down for high street consumption with ‘derivative’ versions it can be considered a dish can be derivative of another. So, what does all this mean for hungry customers who reach for their smartphones during a meal?

Food photos and fair dealing

Since smartphones started to become almost permanently attached to our hands there have been contrasting views on whether they should be banned from the dinner table. On the one hand there are some restaurants going as far as setting up entire evenings devoted to learning how to Instagram food well and on the other there are chefs who have banned photography from their dining rooms. While you may not agree that you should be required to ask permission from a chef before photographing something you’ve paid for, there’s the very real chance you could be kicked out of some of the more exclusive dining rooms for doing so. It’s certainly understandable that some chefs don’t want you to share their secrets but if you happen to be a food blogger or critic who is reviewing the food, here in the UK you should be protected by the copyright fair dealing exception. This allows you to share images under circumstances of review and appraisal.

What are your thoughts on this type of food photography? Do you think we should recognise the effort of chefs and afford them the same copyright observations as other artists? Are you chef who would like to see copyright enforced?