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The Contours of Copyright #1: Can You Copyright Fast Foods? 10/19/2015

Posted by Morse Barnes-Brown Pendleton in Intellectual Property, Legal Developments, New Resources.
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Attorney Howard ZaharoffBy Howard Zaharoff

As broad and creator-centric as copyright is, it doesn’t protect every creative output. For example, as a recent case confirmed – to no one’s surprise (probably not even the plaintiff’s) – copyright does not protect chicken sandwiches, nor even chicken sandwich recipes, nor even chicken sandwich names, no matter how original.

The conflict began after Noberto Colón Lorenzana, while employed by a Puerto Rican fried chicken chain, invented the “Pechu” chicken sandwich. Ultimately his employer greatly benefited from sales of the sandwich and various derivative items, but never compensated Mr. Colon for these remunerative products. Feeling he’d been cheated, Mr. Colón filed an amorphous set of trademark, fraud and (the district court generously found) copyright claims.

After ruling against Mr. Colón’s trademark claim – having never used the mark, he had no trademark rights to infringe – the court considered his assertion of copyrights in his sandwich. After quoting Section 102(a) of the Copyright Act, to the effect that copyright does not protect ideas or inventions, but only works of authorship, and remarking that the Register of Copyright specifically denies copyright to “mere listings of ingredients,” the court stated: “Neither plaintiff’s idea for the chicken sandwich recipe or the name ‘Pechu Sandwich’ is subject to copyright protection.”

To drive home its message, the court proceeded to note that neither the idea for the sandwich, nor its recipe, nor the concept of serving a chicken sandwich at a fast food restaurant, nor even the term “Pechu Sandwich,” were subject to protection by copyright (regarding the last, the court quotes several cases to the effect that copyright does not protect fragmentary words or short phrases).  In short, to the extent the plaintiff was raising a copyright claim – not clear from the proceedings – it was “dismissed with prejudice.”

The case was appealed to the First Circuit, which upheld the district court’s holdings. Regarding the copyright claim, the appeals court noted that neither the recipe nor the name fits any of the categories of eligible works and endorsed the district court’s finding that “a chicken sandwich is not eligible for copyright protection.”

So eat your hearts out, designers of designer-sandwiches and other food products … and be happy that, if you do, you’re not infringing anyone’s copyrights.

Stay tuned for more examples of what copyright does not – and does – protect.

For more information on this topic, please contact Howard Zaharoff.

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