A tasty decision for cheese lovers

The CJEU has  rejected a controversial attempt to use copyright law to protect the distinct taste of a food product, in this case a Dutch cheese. The court explained that taste is too subjective to allow a work to be uniquely identified, even using science, and so cannot be protected.

The Court of Justice concurred with the Advocate General's opinion that an artistic work must be capable of being seen and heard. It's the first time the court has been asked to decide whether copyright applies to taste on an artistic work not defined by the InfoSec Directive (Directive 2001/29/EC)

The case was originally filed in the Dutch courts by the owner of the cream cheese brand Heks'nkaas (witches' cheese), Levola Hengelo. Their product is a spreadable cheese with herbs. It objected to a cream cheese, made by rival manufacturer Smilde Foods since 2014 called "Witte Wievenkaas" (wise-women's cheese), which it claimed "infringed" the flavour of Heks'nkaas. Smilde’s herbed cheese dip contains many of the same ingredients. Witte Wievenkaas is now sold under the name Wilde Wietze Dip.

Levola argued that the taste of food, like literary, scientific or artistic works, could be copyrighted, citing the 2006 case involving Lancôme, the cosmetics company, that had accepted in principle that the scent of a perfume could be eligible for copyright protection. Smilde responded that taste is subjective.

The case went on to the appellate court in Arnhem-Leeuwarden which in turn referred the matter to the CJEU for a preliminary ruling.

The upshot of this is the CJEU have found that the taste of a food product is not eligible for copyright protection and the taste of a food product cannot be classified as a ‘work’. In the judgment the Court makes clear that in order to be protected by copyright under the Directive, the taste of a food product must be capable of being classified as a ‘work’ within the meaning of the Directive. Classification as a ‘work’ requires (a) that the subject matter concerned is an original intellectual creation and(b) there must be an ‘expression’ of that original intellectual creation.

In accordance with the Agreement on Trade-Related Aspects of Intellectual Property Rights, which was adopted in the framework of the World Trade Organisation and to which the EU has acceded and with the WIPO Copyright Treaty to which the EU is a party, copyright protection may be granted to expressions, but not to ideas, procedures, methods of operation or mathematical concepts as such. Accordingly, for there to be a ‘work’ as referred to in the Directive, the subject matter protected by copyright must be expressed in a manner which makes it identifiable with sufficient precision and objectivity.

In that regard, the Court found that the taste of a food product cannot be identified with precision and objectivity (unlike say a literary, pictorial, cinematographic or musical work, which is a precise and objective expression).: the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable. They depend on, amongst other things, factors particular to the person tasting the product concerned, such as age, food preferences and consumption habits, as well as on the environment or context in which the product is consumed.

Moreover, it is not possible in the current state of scientific development to achieve by technical means a precise and objective identification of the taste of a food product which enables it to be distinguished from the taste of other products of the same kind.

Accordingly, the Court concludes that the taste of a food product cannot be classified as a ‘work’ and consequently is not eligible for copyright protection under the Directive.

C-310/17 Levola Hengelo BV v Smilde Foods BV

https://drive.google.com/file/d/1lga5kacAIXU4VHtME2OXRNl2rXsnzu-U/view

http://www.wipo.int/wipo_magazine/en/2006/05/article_0001.html

Readers might want to compare this decision with the European Court of Justice's decision in  which held that a sound can be registered as a trade mark if it is capable of being represented graphically in a clear and easily accessible way - Shield Mark BV v Joost Kist h.o.d.n. Memex (2003). In Sieckmann the ECJ (on appeal from the German Trademark authority) held that a smell could not be registered either by registering the formulae or depositing a sample. The Sieckmann Criteria, a seven part test that goes some way to explaining the ECJ's then reasoning on what might be needed to secure protection and the use of words such as 'clear', 'precise', 'self-contained', 'easily accessible', 'intelligible', 'durable' and 'consistent' - and tested on an objective basis.

A Journey into the Interior

On 18 June 2015 the British Institute of Interior Design (BIID) awarded the well-known CEO of the campaigning organisation Anti-Copying In Design (ACID) Dids Macdonald OBE with a Fellowship. This was in recognition of her untiring work on behalf of the design industry over many years. Dids started out as an interior designer before moving on to product design.

Interesting though that factoid is, I barely gave it a thought at the time. Not until I came across a recent query about copyright and interior design posted on a forum, did I start to ponder the question: how exactly is interior design protected?

Copyright

We all know that architectural plans and works of architecture are explicitly covered by copyright, but that definition surely cannot be extended to include soft furnishings or wall coverings, which in no way constitute the fabric of the building in which they are installed. Admittedly, the patterns on fabrics and wall coverings (Designers Guild comes to mind) may well be protected by copyright (as artistic works) but that would not extend to the complete interior design scheme. The design drawings for an interior design would certainly qualify as artistic works assuming they evidenced sufficient originality - an easy hurdle to overcome. But does that mean that section 17(3) of the Copyright, Designs and Patents Act 1988 would then apply to the finished room or interior space. Here's what the Act says:

(3) In relation to an artistic work copying includes the making of a copy in three dimensions of a two-dimensional work and the making of a copy in two dimensions of a three-dimensional work.

If that is interpreted too broadly, we could see a garden or most everyday objects becoming copyright works if they originate from a design drawing which itself is subject to copyright. This was an issue extensively explored by the House of Lords in British Leyland Motor Corp v Armstrong Patents Company Ltd [1986] albeit in the context of the 1956 Copyright Act. 
 

And what about works of artistic craftsmanship? We know from caselaw, for example Lucasfilm, Interlego and the much earlier 'Popeye' case (King Features Syndicate Inc. v. O & M Kleeman Ltd. [1941]) that for an object to be considered a work of artistic craftsmanship it must have a quality of art which the maker intended it to have, although the actual artistic quality itself is immaterial. Clearly an interior designer will go about fulfilling his or her commission in an artistic frame of mind, but can the assemblage of a number of items such as fabrics, wall coverings and soft furnishings, which have been designed and produced by someone else, really constitute artistic craftsmanship? In Shelley Films Ltd v Rex Features Ltd [1994], a film set was found to meet this criterion. But contrast that decision with Mr Justice Lloyd's obiter dicta in Creation Records in which he dismissed a collection of unrelated items as having the character of an artistic work. So does copyright really protect the totality of a design for an interior? And would the delayed repeal of section 52 CDPA make any difference? Probably not because that section applies to the making by an industrial process of articles derived from artistic works, which has little relevance to interior design.

Design Right

Design right came about specifically to deal with the sort of articles which, due to their practical or utilitarian nature and industrial form of manufacture, are ineligible for copyright protection. It is not really necessary to go into the detailed differences and quirks of UK registered and unregistered design right or the EU near-equivalent, community design right; suffice it to say that the legislation for all of these rights talks about articles and products as distinct physical entities, not as an assemblage of many items and features which may individually be subject to design right. The decoration and furnishing of a space is not analogous to a complex product made up of several components, like a Dyson vacuum cleaner. And furthermore design right only restricts the making of a similar product to substantially the same design, so it wouldn't, for instance, prevent an interior from being photographed and reproduced in Hello magazine. So does design right help interior designers protect their work? Possibly not.

What about Trade Mark Protection then

Surely I must be joking. Well no, not if you assume that Apple were serious with their application for trade mark registration for the interior layout of their Apple Stores, and which the Court of Justice of the European Union did not treat as a joke either. But this form of IP is hardly a practical solution in the everyday work of an interior designer.

Is there really an Issue here?

I imagine it matters to interior designers, and quite probably to Dids Macdonald and ACID too. But is there a need for additional legal clarity in this area? And if there is, in which area of IP law should the solution be found? There is a substantial difference between copyright with its lifetime plus 70 years worth of protection as compared to design right's maximum term of 25 years (and significantly shorter for the unregistered variety), not to mention the actual types of reproduction etc which are protected. It as hard to say how public policy might best be served. And how would such rights be enforced? If you are so taken with the decor in your local Nando's that you go home and reproduce their interior design in your living room, will anyone know or care?

More on US Termination, a How to

I don’t have any moving stories of the importance of the Village People in my life like Nicholas Smith’s wonderful post on the US termination right at IP Whiteboard.  - Although I will admit that The Village People’s Greatest Hits was the first cd I purchased with my own money; – But, I would like to draw your attention to a very detailed how-to-guide on termination rights by Digital Music News: The Comprehensive Guide to Reclaiming Your Old Masters…

Note: If you’d like some background on the US termination right before getting into the guide, see Ben’s earlier post, Terminal Blues for Record Labels?

The Guide gives a bit of background on the termination law, explains the affect terminations may have on record labels and outlines the steps artists wishing to terminate their contracts should follow. 

It also, and perhaps most interesting to the copyright gurus reading this blog, explores in detail the ‘work for hire’ issue that will often be the deciding factor in whether a termination is successful or not.  As the Guide points out, if a work was created as a work for hire, the person who created the work cannot reclaim the rights.  This is because although they created the work, they are not the legal author.  Authorship in works for hire vests with the hiring entity. 

Of course, most record label agreements would state that the works at issue are works for hire.  The golden nugget lies in the fact that saying something doesn’t make it so.  (A common theme in copyright lately.)  The Guide gives a great analysis of the work for hire doctrine, complete with Congressional drama and RIAA trickery.  Check it out.

But is it art?

An interesting decision by the European Commission on the thorny issue of VAT prompted another post Meltwater muse, but this time on art – and whether we might be expecting an ‘Infopaq’ decision on what constitutes an “artistic work” - it might be marvellous darling – but ‘is it art?’

The case involves a light installation at the Hayward Gallery by Dan Flavin and the decision revolves around whether VAT on Flavin’s work was payable at 5% as an artistic sculpture or at full rate (17.5%) as a light fitting. HM Revenue & Customs unsurprisingly asked for VAT at full rate (£36,000) but the VAT & Duties Tribunal rejected the HMRC claim. I can’t find any details of the case on BAILII on the First Tier Tribunal (Tax) pages, but it seems that HMRC were not convinced and asked Brussels for a ruling on the question of whether or not the installation was “art”. The European Commission ruled that the work should be classified for tax purposes as simple light fixtures. Flavin’s work, they said, has "the characteristics of lighting fittings … and is therefore to be classified … as wall lighting fittings" saying “It is not the installation that constitutes a 'work of art' but the result of the operations (the light effect) carried out by it." Although why anyone would pay thousands of pounds for a light fitting doesn’t seemed to have been answered, it also affects the work of Bill Viola, another American whose work is video pieces, filmed in extreme slow motion...

Art Newspaper reports that Pierre Valentin, the lawyer who challenged the original HMRC ruling saying “To suggest, for example, that a work by Dan Flavin is a work of art only when it is switched on, is comical" adding "One is entitled to ask if the Commission has made a judicious use of its powers when overruling these judicial decisions. The reasons given in the regulation in support of the classification are absurd, and the regulation conflicts with the jurisprudence of the European Court of Justice." Is there one rule for tax – and one for copyright?

But what is and isn’t art has long been debated. In 2007 a London art storage company was ordered to pay compensation to a Swiss collector after an Anish Kapoor sculpture ended up in a skip. In 2004 the Tate Gallery was embarrassed when a cleaner innocently threw out an overflowing rubbish bag. It was part of an installation by Gustav Metzger, aptly entitled Recreation of First Public Demonstration of Auto-Destructive Art. Pickled cows, sheep and sharks in a glass case? Step forward Damien Hirst. A Pile of bricks? Equivalent VIII by Carl Andre was bought by Tate in 1972 and featured in special displays in 1974 and 1975. Tracy Emin’s unmade Bed (1999)? Bags of rubbish? Art? Really?

In the UK, Artistic Works must be ‘original’ and a measure of skill, judgment and labour must be present. Section 4 of the Copyright Designs and Patents Act 1988 provide that these works are (1) (irrespective of artistic quality) a graphic work, photograph sculpture, collage; (2) works of architecture and (3) works of artistic craftsmanship not within category (1) or category (2). Cornish details that a simple drawing of a human hand showing where a vote should be cast, the label design for a sweet tin and drawings for patchwork bedspreads have all been accorded copyright protection (Kenrick v Lawrence [1890] 25 QBD 99, Tavener Rutledge v Specters [1959] RPC 355 CA, Vermaat v Boncrest [2001] FSR 44). In Wham-O v Lincoln even a Frisbee was held to be an engraving because of the concentric rings on the plastic body 91985)although the court in Metix v Maughan [1997] FSR 718 found that a sculpture was “a three-dimensional work made by an artist’s hand’.

But what of tax law and art .... of course some of these debates end up in Court and in 1926 a row erupted in the USA over the work of the Romanian sculptor Constantin Brancusi. The American collector Edward Steichen had bought a bronze version of his tall slender Bird In Space, and attempted to import it to the US. Since it had neither head, feet nor feathers, US customs refused to accept it as a zero-rated work of art, and instead classified it as "a manufacture of metal ... held dutiable at 40%". Steichen paid the $600 duty, but he and the sculptor then went to court – with his legal fees paid by the millionaire collector Peggy Guggenheim. Steichen succeeded in having the decision overturned and in 1928 the court ruled that "while some difficulty might be encountered in associating it with a bird, it is nevertheless pleasing to look at and highly ornamental". So free of tax.

I look forward to seeing where Mr Flavin gets with his claim - and comments most welcome.

http://www.guardian.co.uk/artanddesign/2010/dec/20/art-dan-flavin-light-euhttp://www.theartnewspaper.com/articles/Flavin+and+Viola+light+works+ruled+%e2%80%9cnot+art%e2%80%9d/22069

Photo A presumed Banksy of Michael 'Jay-Z' Eavis on a wall in Glastonbury Town. By Ben Challis (c) 2010.