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Copyright on Products: Where do we draw the line?

Kirsten Tibballs

5 years ago

Copyright on Products: Where do we draw the line?

With the increased ability of reaching our target audience via social media, businesses, bakers and chefs have ongoing pressure to continually post exceptional images. Not many chefs or businesses are in the position to either pay for a professional photographer or have the variety of product to enable them to post regularly. This has led to some individuals posting images of other people’s product without prior consent or acknowledgment of the original creator.

Pipa is a creation by Paul Kennedy at Savour Chocolate & Patisserie School

Pipa is a creation by Paul Kennedy at Savour Chocolate & Patisserie School

 

I also come across regular contention on social media from chefs recreating other people’s product and not acknowledging the original designer. If you are re-creating someone else’s product should they get a mention? At what point is it no longer their idea and concept, or is this just the greatest form of flattery even if they don’t get the recognition. For example a pastry chef at some point created the éclair, croissant, macaron, lamington etc…

There are copyright laws pertaining to work created. Social media sites also have their own guidelines on copyright.

What is copyright? A work of authorship includes literary, written, dramatic, artistic, musical and other certain types of works which can include cakes, baked goods, desserts etc… Copyright exists as soon as the product is created and it applies to published and non-published works. As soon as you put down your palette knife, click the shutter on your camera, or hit the home button on your smart phone you have got a copyright (with some exceptions). Copyright also covers photography and that means that in relation to an artistic work, copying includes the making of a copy of a photograph in two dimensions or a three-dimensional work. This is a grey area as to what qualifies as artistic work. So if you see an image of a product it may be protected by copyright which should stop you recreating it.
Copyright is automatic and does not require you to file any paper work as is the case for trademarks and patents.

Having a copyright enables you exclusively to
1. Reproduce the copyrighted work
2. Display the copyrighted work publicly
3. Prepare derivative works based on the copyrighted work
4. Distribute copies of copyrighted work to the public by sale, rental and or display the image.

There is an exception called Fair Use, this allows the public to use portions of copyrighted work without permission from the owner.

Copyright of food products is much more prevalent in countries such as USA who are renowned for their litigation. A good example of this is Dominique Ansel’s Cronut.

Dominique Ansel’s ‘Cronut’ creation

Dominique Ansel’s ‘Cronut’ creation

 

United States Patent and Trademark Office records reveal that “Cronut” is now a registered trademark. Dominique Ansel filed the paperwork for the croissant-doughnut hybrid shortly after its public debut in May 2013, but the trademark was not registered until 2014.
After Dominique announced his trademark plans for the Cronut last year, his decision was met with some hostility from other businesses. At the time, the bakery took to Facebook to explain the decision.

The post read, in part:
“Our desire to protect the name is not an attempt to claim or take credit for all cooking methods associated with the recipe or all croissant and doughnut products in general. Instead it offers bakery and chef protection against un-granted affiliations with the bakery or confusion with customers”.

I think if you are using someone else’s image you should always request consent before you proceed, if you replicate a product that you have seen as an image of you should credit the original creator. Always be inspired by others work and when creating your own productions do it in your own style. If people replicate or copy your work it forces you to create a new concept or product and keep evolving as a professional.

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