You Still Can’t Copyright A Chicken Sandwich

Speaking of the power of grand juries, the Chief Judge of the New York State court system once famously remarked that a grand jury “could indict a ham sandwich”. The United States Court of Appeals for the First Circuit has now weighed in on the subject of copyright protection for chicken sandwiches, in Lorenzana v. South American Markets Corp. (Case No. 14-1698, August 21, 2015). In doing so, the First Circuit preserved an important aspect of copyright law.

Copyright protects creative expression. The determination of what is “creative” is not a value judgment; any expression, whether in print, visual, music or multimedia is protected. Even this blog post, which more or less sets out factual statements has an element of creativity which copyright law protects.

So is everything that is written down creative expression? No. The U.S. Supreme Court settled this issue years ago by saying that a mere listing of facts (such as a telephone directory) has no creative element, and, therefore, is not protectable under U.S. Copyright law.

Mr. Colon, the Plaintiff in the South American Markets case, was a former employee of a sandwich shop in Puerto Rico. He had a falling out with his employers, and sometime later claimed that he had developed the recipe for their well-known (in Puerto Rico, at least) Pechu Sandwich, made of chicken. Mr. Colon brought suit for, among other things, copyright infringement, claiming that the restaurant had used his recipe without a license from him.

The First Circuit Court of Appeals found the copyright claim unfounded, holding that the District Court below “properly determined that a chicken sandwich is not eligible for copyright protection.” (Opinion p. 6). This conclusion flowed from a fundamental tenet of copyright law—namely that functional directions (such as recipes) to achieve a result lack sufficient creativity to enjoy protection of copyright law. A mere list of ingredients is not subject of copyright protection. See 37 C.F.R. sec. 202(1) (a).

So, are recipe collections, such a cookbooks protected by their authors? Yes, but only to the extent of the creative expression set out in describing the dishes, detailing their preparation and otherwise casting the author’s point of view on the recipe itself. As the First Circuit noted in South American Restaurants, the plaintiff only claimed rights in the list of ingredients, and not in any creative expression beyond the list of the Pechu Sandwich’s content. (Opinion at 6, n. 7). A modern day Julia Childs Beard can rest assured that their cookbook prose describing Boeuf Bourguignon is protected from appropriation, even if the list of ingredients is not.

For more information about this or any copyright or trademark issues, please contact Fred Frawley (afrawley@eatonpeabody.com).

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