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September 16, 2011

You Can’t Copyright A Bowl Of Food

You can’t copyright a bowl of food; and you can’t copyright a garden. For those who may be wondering just where the outer limits of copyright ability lie, two cases this year identified material that is beyond those limits. In Kim Seng Co. v. J & A Importers, Inc., the court in the Central District of California held that a bowl of food is not sufficiently fixed to qualify for copyright. The court reasoned that a bowl of food could never be static because the food will necessarily perish.

Earlier this year, the Seventh Circuit wrestled with the copyright law’s fixation requirement in Kelley v. Chicago Park District. The art at issue in that case was a garden. Chapman Kelley designed and planted a wildflower garden in Chicago’s Grant Park, carefully selecting and arranging the flowers to achieve a particular effect when they bloomed. When the Chicago Park District reduced the size of the garden, Kelley sued for violation of the Visual Artists Rights provision of the Copyright Law, 17 U.S.C. 106A, contending that the Parks District impermissibly modified his work. The court held that the garden was not a sculpture or a painting, and did not qualify in any way as a writing that could be protected by copyright. The court explained that gardens are planted and cultivated, not authored. A garden’s constituent elements are alive and inherently changeable, not fixed.

Food for thought as you watch the next episode of Cake Boss.