Great Moments in Jurisprudence: Chicken Sandwiches Uncopyrightable

25.08.15

By Filed Under: cheese, fried chicken, lettuce, miscellaneous, tomato

(h/t Ars Technica)

The sandwich in this picture is uncopyrightable. The picture itself, on the other hand, is absolutely copyrightable. The use of the picture here, though, is solely for the purpose of commenting on a highly newsworthy matter of great social import, to wit, the copyrightability or lack thereof of sandwiches, and to serve as an educational illustration of the sandwich at issue in the litigation in question.

The sandwich in this picture is uncopyrightable. The picture itself, on the other hand, is absolutely copyrightable. The use of the picture here, though, is solely for the purpose of commenting on a highly newsworthy matter of great social import, to wit, the copyrightability or lack thereof of sandwiches, and to serve as an educational illustration of the sandwich at issue in the litigation in question.

Last Friday, the United States Court of Appeals for the First Circuit issued a decision in an appeal from the District of Puerto Rico. The plaintiffs essentially claimed that South American Restaurants Corp., which is among other things a Church’s Chicken franchisee and a seemingly misnamed entity (as Puerto Rico is not in South America), owed them for the continued use of a sandwich recipe that one of them concocted while working there. The sandwich, which is called the “Pechusandwich” and/or the “Pechu Sandwich”, “consists of a fried chicken breast patty, lettuce, tomato, American cheese, and garlic mayonnaise on a bun.”

As the appeals court put it:

Congress has enumerated eight categories of works available for copyright protection:

(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; and (8) architectural works.

17 U.S.C. § 102(a).

Contrary to Colón’s protests on appeal, the district court properly determined that a chicken sandwich is not eligible for copyright protection. This makes good sense; neither the recipe nor the name Pechu Sandwich fits any of the eligible categories and, therefore, protection under the Copyright Act is unwarranted. A recipe — or any instructions — listing the combination of chicken, lettuce, tomato, cheese, and mayonnaise on a bun to create a sandwich is quite plainly not a copyrightable work.

If you’re curious, if the court had held that sandwich recipes are copyright-eligible, the [almost certain] existence of previous sandwich recipes identical to the one at issue wouldn’t have hurt the plaintiffs’ case. (Or, at least, it wouldn’t necessarily. Though the recipe might well have been considered a work for hire, and then they could have lost on that point.) Unlike with patents, where (as John Carmack can tell you) coming up with something yourself independently isn’t a defense to infringement, where copyrights are concerned, if you didn’t copy, you didn’t infringe. (But, of course, nothing is ever simple; courts can sometimes infer copying via the principle of “striking similarity“.)

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