Copyright Protection for Food – Perishable?

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

In Kim Seng Co. v. J & A Importers, Inc., a California District Court considered the copyrightability of a food display. Kim Seng Co., (“Kim Seng”), a Chinese-Vietnam food supply company sued another Chinese-Vietnam food supplier, J & A Importers, Inc. (“J & A Importers”), for using an image of a bowl of food on product packaging for rice sticks. Kim Seng alleged copyright and trade dress infringement for using its product packaging. And also interestingly, it sued J&A for copyright infringement of the food display itself.

Kim Seng claimed copyright not only in the photograph, but in the bowl of food as a three-dimensional object, claiming that its employee “chose the food out of thousands of possibilities, and directed their arrangement to be in a certain fashion out of infinite possibilities.” Id. at 1053. The court analyzed whether the bowl of food was a copyrightable sculpture, examining whether it was (1) an original work of authorship and (2) fixed in a tangible medium of expression. 17 U.S.C. §§ 101, 102. With respect to the originality of the food display, the court found that the bowl of food was comprised of unprotectible elements. Comparing this case to the bowl of jellyfish in Satava v. Lowry, 323 F.3d 805, 810 (9th Cir. 2003), the court held that there was insufficient originality in the selection, which was dictated by the description on the packaging. Further, the court determined the arrangement was too mechanical and routine to create a copyrightable compilation work of unprotectible elements. The elements, the food items, are not protectible as original works of authorship, because they cannot be separated from their utilitarian function — to be eaten.

Regarding the fixation requirement, the court agreed with the defendant that the bowl of food was perishable and thus was not “fixed” for copyright purposes. The court compared the bowl of food to the artistically arranged garden at issue in Kelley v. Chicago Park Dist. in which the Seventh Circuit held that a living garden “lacks the kind of authorship and stable fixation normally required to support copyright.” 635 F.3d 290, 303 (7th Cir. 2011). In this case, Judge Snyder found that “[l]ike a garden, which is ‘inherently changeable,’ a bowl of perishable food will, by its terms, ultimately perish,” and thus the work does not satisfy the fixation requirement. 810 F. Supp. 2d at 1054.

Next, Kim Seng attempted to establish a copyright in the photograph of the food. The court explained that any argument that the photographer assigned the rights to a third party, who then assigned the rights to Kim Seng, failed because there is no evidence of a written contract, upon which an assignment relies. Finally, the court held that the photograph was unprotectibleunder the scene