Nick Isaacson is a J.D. candidate, 2021 at NYU School of Law.

Food is not copyrightable, at least according to a U.S. district court in California. This is the holding from Kim Seng Co. v. J&A Importers, Inc., which was decided in 2011.[1]

In Kim Seng Co., the court reasoned that food is neither original nor fixed and, consequently, not copyrightable. Eight years later, however, that holding may be challengeable under the court’s own reasoning. Given the recent proliferation of preservative additives and other food preservation methods, it seems at least arguable that, nowadays, food may be preserved long enough to qualify as fixed. As for the originality requirement, Kim Seng Co. rejected the notion that the bowl of food in question (a Vietnamese soup) counts as an original sculpture. While that ruling makes sense, it does little to address the broader question of whether food may be used as a medium. What’s more, the holding does not address the possibility that foods may be copyrightable as compilations. In light of increased food preservation capacities as well as the unaddressed “food-as-a-medium” and “food-as-an-original-compilation” propositions, the court’s analysis may be ripe for reconsideration. A fresh review may reveal a sweet spot of circumstances in which a food item could be copyrighted after all.

Fixation is a central requirement for copyright. It requires the item in question to be characterized by a “tangible medium of expression” and also “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”[2] Finding the fixation requirement unmet by the facts presented in Kim Seng Co., the court stressed that the food in question is “perishable” and “once it spoils is gone forever.”[3] Thus, failure to meet the temporal stability requirement of fixation would have prevented the bowl of food from being copyrighted even if the court had deemed the work sufficiently original.

While the court in Kim Seng Co. set forth that the bowl of soup at issue is not fixed, it did not provide a more general pronouncement on what does or does not qualify as temporally sufficient for fixation. Nonetheless, the Kim Seng Co. opiniondoes referenceKelley v. Chicago Park District,which establishes that a garden that lasted one year was not sufficient for fixation.[4] This may imply that, wherever the line is, one year is apparently below the threshold. On the other hand, beyond the context of food products, recordings and software can be fixed to a number of media that typically begin to deteriorate within less than one year, irrespective of the fact that they may still be usable in a deteriorated condition. For example, floppy disks last twenty years, magnetic tapes (i.e. 8-track and VHS) last ten years, and CDs and DVDs last five years. Notably, there are a number of foods that last this long, too. For example, dark chocolate can last at least two years sitting on the shelf, foods marketed as “Meals Ready to Eat” (MREs) last at least five years, and hard cheeses, if encased in wax, can stay good for twenty-five years. Some of these foods last as long or longer than media to which copyrights are considered fixed without questions being raised as to the sufficiency of their temporal durability. While that may not be the norm among food items, it does indicate that there is a case for some food items to be considered fixable media.

On the topic of conceptual severance, Kim Seng Co. states that the bowl of food in question lacks conceptual severance and therefore cannot be copyrighted. The opinion underscores that the matter in question is “a combination of unprotectable elements” (specifically, a bowl, plus the ingredients of a traditional soup recipe) that “cannot be separated from their utilitarian function, which is to be eaten.”[5] The court seems to be indicating that, because the nature of the object in question is fundamentally utilitarian and none of its component parts are original compositions, there is no innovative element that is conceptually separable from the sum of its parts. The significance of conceptual severance is perhaps best described in Varsity Brands, Inc. v. Star Athletica, LLC, a Sixth Circuit  decision stating that “the Copyright Act protects the ‘pictorial, graphic, or sculptural features’ of a design of a useful article even if those features cannot be removed physically from the useful article, as long as they are conceptually separable from the utilitarian aspects of the article.”[6] Case law such as the foregoing Varsity Brands pronouncement suggests the possibility that a sculpture of something else, say a gummy worm, could be copyrightable for its sculptural components on the grounds that its visual design could be understood as conceptually severable from the utilitarian element of its edibility. Stone has utilitarian properties, as does wood, and all of those are considered fine media for sculpture, so assuming the fixation requirement were not a problem, why not food as well?

The court in Kim Seng Co. also says that the bowl of food is not protectable as a compilation under the doctrine from Satava v. Lowry.[7] “[R]egardless of which angle, quantity, or positioning of the various food items Kim Seng utilized, the unprotectable nature of the ingredients indicates a lack of originality,” the opinion states, citing Satava for support.[8] Despite the Kim Seng Co. opinion’s portrayal of itself as aligned with Satava, its analysis is divergent. As recounted by the Ninth Circuit in another case that discusses the analysis from Satava, “the combination of six unprotectable elements” that characterized Satava’s sculpture “did not rise to the level of originality sufficient to merit copyright protection.”[9] Meanwhile, Satava establishes that “a combination of unprotectable elements is eligible for copyright protection only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.”[10] The problem with the compilation in Satava was that there were not enough elements, not that the elements were not protectable, meaning that the district court in Kim Seng Co. misconstrued the Ninth Circuit’s holding from Satava. Were the court in Kim Seng Co. to have more observantly applied the principles of Satava, a protein powder food product comprised of two dozen non-protectable ingredients, each selected in certain proportions to optimize taste, could have been construed as a copyrightable compilation.

To be clear, for a food to be potentially copyrightable, it would need to satisfy the fixation requirement and also qualify as original, either as a compilation or on the basis of conceptual severability. Due to the fixation problem, not many foods will satisfy these requirements, at least currently. Increasingly, however, this will change, and in fact has already been changing as new preservative additives and other preservation methods are developed. There is a clear commercial interest in making foods that do not spoil, and that interest will induce attempts to preserve not just food, but also the commercialization rights that may be legally attached to it. Copyright provides an avenue for that protection, so future litigation to establish foods as fixable is to be expected down the road.

[1] Kim Seng Co. v. J&A Imps., Inc., 810 F. Supp. 2d 1046 (C.D. Cal. 2011).

[2] 17 U.S.C.A. § 101.

[3] Kim Seng Co., 810 F. Supp. 2d at 1054.

[4] Kelley v. Chicago Park Dist., 635 F.3d 290 (7th Cir. 2011).

[5] Kim Seng Co., 810 F. Supp. 2d at 1053.

[6] Varsity Brands, Inc. v. Star Athletica, LLC, 799 F.3d 468, 483 (6th Cir. 2015).

[7] Satava v. Lowry, 323 F.3d 805 (9th Cir. 2003).

[8] Kim Seng Co., 810 F. Supp. 2d at 1053.

[9] Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d 1140, 1147 (9th Cir. 2003).

[10] Satava, 323 F.3d at 811.