Copyright: Where Do We Draw the Line?

With the ability to easily reach our target audience via social media, bakers and chefs have ongoing pressure to continually post exceptional images. But it’s all fun and games until someone gets sued.

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 posting images of other people’s product without prior consent or acknowledgement of the original creator.

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? After all, a pastry chef at some point created the éclair, croissant, macaron and lamington.

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

So what is copyright? A work of authorship includes literary, written, dramatic, artistic, musical and other certain types of works that can include cakes, baked goods and desserts. 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 copyright (with some exceptions, of course).

Copyright also covers photography, which includes making a two- or three-dimensional version of a photograph. What qualifies as an artistic work does fall into a grey area. So if you see an image of a product, remember it may be protected by copyright – this should stop you recreating it.

Copyright is automatic and does not require you to file any paperwork, as is the case for trademarks and patents. There is an exception called Fair Use, which 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 the US that are renowned for litigation. A good example of this is Dominique Ansel’s Cronut. US Patent and Trademark Office records reveal “Cronut” is now a registered trademark. Dominique Ansel filed the paperwork for the croissant-doughnut hybrid shortly after its public début 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 you have seen as an image you should credit the original creator. Always be inspired by other people’s work but, when creating your own productions, do it in your own style.

At the end of the day, if people replicate or copy your work it forces you to keep evolving as a professional.