Sunday, 28 June 2015

Are food bloggers an easy target for Intellectual Property Right infringement? Blogging and Intellectual Property Rights violations


Are food bloggers an easy target for Intellectual Property Right infringement? Because it is just recipe writing and  blogging, can someone easily take away our product (our writing, our associated photos and recipe cards) without prior permission. Where does the law stand?

I am writing two blogs to deal with our basic concerns, this is the first in the series and this will cover

             What are our Intellectual property rights on our food blogs?

And second blog will be dealing with

            What are the effective ways of protecting  Intellectual property infringement’s?

What are our Intellectual property rights on our food blogs?



In a broader sense, a food blogger can claim the following intellectual property rights

  •  Copyright
  • Patent
  • Trade Mark
  • Trade secret
  •  Goodwill
  •  Moral Rights

Patent Right:
              If you create a recipe[i] or introduced a new method of production[ii], or invented a new ingredient which makes your dish substantially different from the prior art (already existing dish), and it increases the commercial utilization (industrial application in IP terms) then you can claim patent for the recipe.

 Likewise, if you are introducing an innovative method in cooking of an already well-known dish still you can claim your right over the said method of production because you have invested your labor, time and originality to create that end product and it is ‘substantially different’ from the original one.

It should be admitted that proving substantially different from the original is a very, very difficult test before the court of law. Still, many  jurist’s believe that cooking is not an invention, it is a natural evolving process[iii].

Trademark:

A Trademark is a backbone of any business, in the cyber social networking world we knew the importance of specific logos. We identify many food bloggers with their logos. It is a proved fact that  if you have a successful food blog opportunities are out there for you to market your food blog and the first thing your potential business partners are looking for is your distinctive logo because that is what your already existing readers identify you with. The past few years, we have seen tendencies to duplicate or steal logos of food blogs with remarkable traffic.

Copyright:

Can I claim copyright for my recipes? Or for my food blog?

I have heard several food bloggers asking are we entitled to copyright protection? Aren’t they just ingredients or the compilation of already known methods? Do we get legal protection?

The answer is YES and No.

As mentioned earlier, if your food blog is a product of your originality, creativity, and labor. Then yes, your product will be guarded by copyright laws.

The philosophy behind the same is to reward you for your labor and creativity by recognizing your ‘intellectual’ ‘property’.

So the test to determine the same is simple,
Will it qualify as your intellectual property? What was your literary contribution in creating the post or the food blog itself?

As we all are aware, all food bloggers have their own unique style and flair for writing, for many it has not been just a display of some ingredients it has their personal touch. If that is the case, your writings are protected because it is your baby. That is why moral rights, or rights of paternity is recognized under Intellectual property jurisprudence.

Photographs: Research and experience show that the major share of copyright violation is stealing others food photos. One reason is ‘good and inviting photos’ attracts more internet traffic and there are several easy methods to search and find photos. So the more successful your blog and recipes are there is an equal amount of risk involved in your photos getting published somewhere else. The more digital footprints you have with these photos, the more  vulnerable they are for a possible copyright infringement.

So what are major rights available for a food blogger with regard to copyright?

  •   Our copyright over a work is our default right. You don’t have to register or display a copyright notice on your blog to make use of this legal protection. Though in The United States the registration will work as an important aid in claiming your work in case of copyright violation.
  •  The Authorship and ownership of a copyright content remain with the author.(Exceptions are working for someone else (course of employment) or transferring the authorship by agreement)
  •  You can monetize your work and also reproduce your work for the financial benefit.

Right of others:

             Creative commons license: Some people believe that they want to share their work with the world and establish their creativity and talent. Creative Commons is an easy way to do this. It will help you to reach more audience. They are a way of licensing your photos. Through this license, you are allowing others to use your work, but keeping the authorship with you. In most cases, others can use your work, but obliged to provide a backlink to your original work or mention you as the author. They can make derivative works of yours.

Others have a fair use right.
That means they can comment, criticize or use your  work for any non-profit or educational purpose.

Another aspect to consider in the case of our food bloggers are, what is our ultimate aim of food blogging (other than monetary benefit).

We want other’s to make our dish and enjoy our dish. Yet another successful plate of our food makes us happy, isn’t it. That is why almost all of us use the phrase ‘serve and enjoy’ at the end our food blog posts. So we give permission for non-commercial fair use.

End note:
Having said all these, it should be admitted that it is so hard to prove an innovative,  substantial difference from the original product or prior art before the UK and the US legal system. There are not many precedents or case laws to act as a guideline in this regard. Mainly because many rulings are considering the food making process as more organic and natural.

 Yet another reason for the lack of case laws are people are not filing enough violation cases because of either lack of awareness or less time to invest  in a court proceeding. On many occasions, cases are settling outside court rather than opting for a  chocolate Patent[iv]. Trade secrets come to place here. This is the very reason many well-known chefs are protecting their method under the Trade secret protection and making their employees sign a non-disclosure agreement.

Though with the increasing amount of copyright violations and commercial exploitation of others creativity let us hope that in the coming years there will be clearer guidelines, debates and discussions about this ever growing issue.

·         P.S: Right now I am not going to attempt an in-depth legal analysis because my little 15-month-old is not happy with me giving more focus to my laptop than him. So current attempt is to give an outline about the rights and what to do next, watch this space for a more detailed analysis about different IP Rights.

Disclaimer: This blog is not written on legal format blogging. This is an informative post only, don’t take, this is as legal advice.

References:
4.           Publications Intl.v.Meredith, 88F.3d 473 (7th Cir.1996)
5.           Harper and Row, 471 U.S at 547,105.S.Ct.at 2223.

About the Author:
Deepa P Madhu is  a former lawyer and now a full time mother. She has her first postgraduate degree in Law (Intellectual Property Rights) and another Masters in Criminal Justice and Criminology. You can contact Deepa @ madhudee.dot.gmail.dot.com.



[i]Websters defines recipe as a set of insturctions for making something..a formuala for cooking or preparing something to be eaten or drunk: a list of ingredints and astatemnet of the procedure to be followed in making an item of food or drink..a method of procedure for doing or attaining something. http://www.merriam-webster.com/dictionary/recipe.
[ii] Nestle filed a Patent application for heat resistnat choloclate.
[iii] Example Publications Intl.v.Meredith, 88F.3d 473 (7th Cir.1996).,Harpr and Row, 471 U.S at 547,105.S.Ct.at 2223.
[iv] A fancy name attributed to food patenting.

1 comment:

Destination Infinity said...

I prefer my content being in Creative Commons license that can be used by others with attribution. Even if many don't mention/link back, some will. I am not bothered much about that. But I am not a food blogger, so my case maybe different.

Destination Infinity

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