Aug 27 | 2015

Fried Chicken and the Limits of Copyright Protection

You cannot copyright a chicken sandwich. If that seems obvious, it should be. So it is all the more surprising that a panel of three federal appellate judges needed to reiterate that point in a recent First Circuit decision. Nevertheless, the appellant will be left clucking at the moon after the court affirmed the dismissal of his claim for $10,000,000 for the theft of his chicken sandwich idea.

The appellant, a former employee of a Church’s Chicken franchisee and operator in Puerto Rico, claimed that he devised the idea for a new sandwich, dubbed the “Pechu Sandwich.” Like a farm hen attempting to take flight, the appellant reached for the culinary stars and landed squarely on the familiar ground of a fried chicken breast patty, lettuce, tomato, American cheese, and garlic mayonnaise on a bun. When the sandwich became successful, the appellant came to believe that he was entitled to a percentage of the profits derived from the sandwich, ultimately arguing that he was the creative author of the sandwich’s recipe and name.

The meat of the appeal centered around three issues: 1) copyright infringement of the sandwich’s recipe and name; 2) trademark infringement of the Pechu Sandwich name; 3) fraud upon the U.S. Patent and Trademark Office (the “PTO”) in the registration of the Pechu Sandwich name as a trademark. Ultimately, the three-judge panel found not even a nugget of merit in the trademark allegations. Indeed, the appellant failed to allege even a single false or misleading statement made by anyone to the PTO and failed to develop altogether an argument for trademark infringement during the appeal.

With the trademark claims deboned and the copyright claim back at the top of the issue pecking order, the court reiterated one of the most useful and central tenets of copyright law; copyright protection is generally limited to the specific categories enumerated by Congress:

1. literary works
2. musical works, including any accompanying words
3. dramatic works, including any accompanying music
4. pantomimes and choreographic works
5. pictorial, graphic, and sculptural works
6. motion pictures and other audiovisual works
7. sound recordings
8. architectural works

A chicken sandwich simply does not fit into one of these categories. Unlike a literary work, the court likened the sandwich’s recipe to a mere listing of ingredients or a set of functional directions for achieving a particular result, both of which lack the originality necessary to merit copyright protection. Similarly, the name Pechu Sandwich lacked the indications of originality necessary to constitute a protectable literary work. Indeed, the court observed that words and short phrases, such as names, titles, and slogans, are generally not copyrightable.

Despite the appellant laying an egg in this case, one might still wonder whether another food pioneer might have better luck in the future. Could, for example, a skilled pastry chef’s whimsical take on an edible bird’s nest constitute a sculptural work? Given the thought and care put into such dishes, the notion holds a certain intrinsic appeal. Yet, there is little question that such dishes are inherently functional — they do, after all, feed us — and courts are consistently reluctant to grant copyright protection to useful articles. Given the state of the law, then, a chef may get the most protection for a dish by creating a pictorial work using the dish, that is, taking a picture of it. It couldn’t hurt to include a trademark, too.

By Robert N. Hunziker, Jr., Esq.