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Cheese Fight Ends With Court Declaring Producers Can't Copyright Taste

Taste is subjective and food producers have to deal with it

Rainer Jensen/dpa/picture-alliance/NewscomRainer Jensen/dpa/picture-alliance/NewscomCan the taste of a particular food product be copyrighted? Last week, a court in the European Union answered that question, holding that food producers may not copyright the taste of their foods. The case had pitted two Dutch herbed cream cheese spread makers—Heksenkaas ("witches' cheese") and Witte Wievenkaas ("wise women's cheese")—against each other.

Generally, copyright protects works and expressions—songs, movies, etc.—rather than ideas. A copyright provides its owner with an "exclusive legal right to reproduce, publish, sell, or distribute the matter and form of something."

The makers of Heksenkaas, first produced in 2007, claimed their competitor's cheese, Witte Wievenkaas, a budget competitor that debuted in 2014, tasted exactly like Heksenkaas and claimed the latter had infringed on its copyright on the taste of Heksenkaas.

First filed in Dutch court, the case was later removed to the European Court of Justice (ECJ).

"The taste of a food product cannot... be pinned down with precision and objectivity," the ECJ ruled. "Unlike, for example, a literary, pictorial, cinematographic or musical work, which is a precise and objective form of expression, the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable[.]" It also found that, in order to secure a copyright, a food's "originality must be technically evident, not just a question of preferences."

As a result, the ECJ held that European law "preclude[es] the taste of a food product from being protected by copyright under that directive and [bars] national legislation from being interpreted in such a way that it grants copyright protection to such a taste." The ECJ ruling applies throughout the European Union.

Interestingly, at one time dishes were capable of securing legal protection at least in part because of their unique taste. Probably the only thing I recall from my Patent Law class in law school, in fact, was taught on the first day of that class. Namely, we learned that the first-ever such protection was granted more than 2,500 years ago to a restaurant in Sybaris, in Southern Italy, an area at the time ruled by Greece.

According to the course textbook, the Sybarites "enacted a law that gave exclusive rights to those who created certain culinary delights.... [such that] if any confectioner or cook invented any peculiar and excellent dish, no other artist was allowed to make this for a year[.]"

Some reports have characterized the ECJ's ruling last week as a loss for food manufacturers. But that's a wildly narrow and one-sided view of the case. Of course, it's a loss for the food manufacturers that sought (or might have sought) to copyright the taste of their foods. But it's a win for their numerous competitors specifically and for innovators and innovation in general. Most important, perhaps, it's a win for EU consumers, who can continue to choose between the more expensive Heksenkaas and its lower-priced competitor, Witte Wievenkaas.

But the case also has broader implications for consumers and for food freedom. The subjectivity of taste—specifically of one's taste in food—is something I've focused on for many years. That's because the subjectivity of taste implicates rights, at least here in the United States.

"[O]ne's taste for food, or one's liking for certain kinds of music, art, reading, recreation, is certainly fundamental in our constitutional scheme—a scheme designed to keep government off the backs of people," wrote U.S. Supreme Court Justice William O. Douglas in a dissent from a denial of cert. in a 1972 case.

Efforts to limit choices in food, in other words, necessitate government action that narrows our rights. The ECJ ruling, which does the opposite, is a welcome development.

Photo Credit: Rainer Jensen/dpa/picture-alliance/Newscom

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  • Remember to keep it all polit||

    Unlike, for example, a literary, pictorial, cinematographic or musical work, which is a precise and objective form of expression, the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable

    Anyone who thinks literature, pictures, or music are precise and objective is a fool. Any number of ridiculous court cases show this, but intellectual property trundles on, stifling innovation and hold back progress in the arts and sciences.

  • JonFrum||

    Copyright - done right - does not stifle innovation. You can write any song you like that is influenced by my song - you just can't present my song as yours. And if you want to 'innovate' using my song, pay me and do it.

  • Remember to keep it all polit||

    if you want to 'innovate' using my song, pay me and do it

    Aye, there's the rub. Just as in food flavors, literature, and everything else subject to copyright, outright coping isn't the problem, it's "innovate using my song" which is the problem.

    You are apparently unaware of all the numerous copyright cases which depend solely on whether a later work was a subjective copy of some prior work.

    Thank you for proving my point.

  • Agammamon||

    Copyright, even done right, stifles innovation - that's actually its *point*.

    Its just supposed to incentivize *more* innovation after the copyright period is over than it stifles during it, giving us a net gain.

  • Vernon Depner||

    But under current copyright law as practiced, the copyright period is NEVER over. Every time copyrights from after 1923 are about to expire, Congress passes another extension and they continue.

  • Agammamon||

    That's not a but.

    I'm not saying the current CP situation is justified. I'm saying the *ideal* design of CP reduces incentives for innovation in the short in exchange for more innovation in the long term. CP policies can only deviate to the worse from that ideal.

  • Vernon Depner||

    You can write any song you like that is influenced by my song - you just can't present my song as yours. And if you want to 'innovate' using my song, pay me and do it.

    No, that's not how it works, and even if it did, there's a problem.

    The problem: A "song" is an abstraction. The written music and lyrics are exact and reasonably subject to copyright (if you allow that anything is), but what is written is only a guideline for performance, always requiring extensive interpretation and prior knowledge to transform into a performance. Whether a particular performance is the "same" "song" as what is written on the paper is an entirely subjective judgement.

    How it really works: No, you can't necessarily get away with writing a song "influenced" by a previously copyrighted song. Because the judgement of whether two performances are the same song is subjective, court judgements for infringement are routinely won based on small and superficial similarities. Look up the case the estate of Marvin Gaye was involved in last year to see how ridiculous it can get. And, whether you present the song as yours is irrelevant—even if you acknowledge a song was authored by someone else, you still can't perform it without permission of paying royalties. Judgements get even murkier and more subjective in the case of derivative works which are not intended to be mistaken for the copyrighted song but are alleged to "innovate" upon it.

  • Vernon Depner||

    Of course, the whole idea of "performance rights" is questionable. Why should someone else's performance of "your" song be considered your property? The original US copyright laws did not protect songs at all, on the sound grounds that originality could not be proven. Only the written sheet music could be copyrighted. The law did not recognize performance rights until player pianos came along.

  • Vernon Depner||

    Blurred Lines vs. Got To Give It Up

    https://www.youtube.com/watch?v=ziz9HW2ZmmY

  • Jerryskids||

    Yeah, the dumbass cheesemakers should have named it iCheez and, abracadabra, suddenly it's "intellectual property". The old farts in government who haven't a clue about how technology works are easily baffle-gabbed into believing if it's got something to do with the interwebs it's new and innovative and nobody's ever seen anything like it. You could come up with a software program to 3-D print a stick and they'd grant you a patent and thoughtfully consider lawsuits for patent infringement against pencil makers, Major League Baseball, Wrigley's, Elmer's, Mrs. Buttersworth, GM, Stuckey's, and anybody else that makes sticks, stickers, stick-shifts or sticky stuff.

  • Chipper Morning Baculum||

    Intellectual Property communism leads to the same kinds of results as regular communism: destruction of incentives and the structure of production by severely distorting price signals.

  • Vernon Depner||

    There is no such thing as "intellectual property". Copyrights and patents are privileges granted by government to one person at the expense of infringing on the rights of all others. A utilitarian argument can be made in support of temporarily granting such privilege, but winning that argument does not transform ideas and utterances into property.

  • Chipper Morning Baculum||

    All property rights are granted by the government in today's world. And all property rights impose restrictions on others. Are you promoting some kind of Platonic or Objectivist principle that defines property? Property rights are based on values, and values are subjective. There is no way to objectivize property.

  • Vernon Depner||

    Gibberish. Definition of property: stuff that you own.

  • Chipper Morning Baculum||

    How does that circular definition exclude IP?

  • Vernon Depner||

    It's not stuff.

  • IceTrey||

    "What the patent and copyright laws acknowledge is the paramount role of mental effort in the production of material values; these laws protect the mind's contribution in its purest form: the origination of an idea. The subject of patents and copyrights is intellectual property.

    An idea as such cannot be protected until it has been given a material form. An invention has to be embodied in a physical model before it can be patented; a story has to be written or printed. But what the patent or copyright protects is not the physical object as such, but the idea which it embodies. By forbidding an unauthorized reproduction of the object, the law declares, in effect, that the physical labor of copying is not the source of the object's value, that that value is created by the originator of the idea and may not be used without his consent; thus the law establishes the property right of a mind to that which it has brought into existence."

  • IceTrey||

    "It is important to note, in this connection, that a discovery cannot be patented, only an invention. A scientific or philosophical discovery, which identifies a law of nature, a principle or a fact of reality not previously known, cannot be the exclusive property of the discoverer because: (a) he did not create it, and (b) if he cares to make his discovery public, claiming it to be true, he cannot demand that men continue to pursue or practice falsehoods except by his permission. He can copyright the book in which he presents his discovery and he can demand that his authorship of the discovery be acknowledged, that no other man appropriate or plagiarize the credit for it—but he cannot copyright theoretical knowledge. Patents and copyrights pertain only to the practical application of knowledge, to the creation of a specific object which did not exist in nature—an object which, in the case of patents, may never have existed without its particular originator; and in the case of copyrights, would never have existed.

    The government does not "grant" a patent or copyright, in the sense of a gift, privilege, or favor; the government merely secures it—i.e., the government certifies the origination of an idea and protects its owner's exclusive right of use and disposal." - Ayn Rand

  • Vernon Depner||

    You're trying really hard, Ayn, but it's OK—your philosophy doesn't need to be perfect to be valuable and useful. There's nothing wrong with admitting it has limitations and that some exceptions to it might be of such practical value that they're worth making. No, ideas and utterances are not property, and copyrights and patents are indeed privileges extended by government that infringe on liberty, but that doesn't mean they're not a good idea if administered in a way that produces beneficial results. We don't need to follow our principles into absurdity. Instead, let's admit we're only human and that any set of principles we create will be flawed and will not supply perfect solutions in all situations. There's no shame in that. It's just common sense.

  • sharmota4zeb||

    Theoretically, tastes and smells should be as easy to copyright as graphic designs, but judges are not up to the task of evaluating infringements on taste and smell copyrights.

    Hey, this gives me an idea. If you and a friend want to annoy the local judge, have your friend copyright an unpleasant graphic artwork and let him keep suing you for infringing on that copyright so that the judge has to keep looking at it.

  • Jerryskids||

    Totally artificial tastes and smells maybe, but the reason food-makers and perfumers rely on "trade secrets" is because it's long been settled law that there's only so many ways you can combine peanuts and chocolate and caramel and it's pretty damn obvious to anybody with tastebuds that peanuts and chocolate and caramel are going to taste good mixed together. You can't patent or copyright a food or scent combination because nobody had to "invent" the Snicker's bar for people to figure out the concept of yummy.

  • Remember to keep it all polit||

    Gives me an interesting idea. At some point, there will be 3-D food printers. People will download recipes like they download PDFs now or 3-D gun designs.

    And then the copyrightists will get into some fascinating battles. Straight copying will be verboten, whether as patents or copyrights. But someone will discover that instead of .237% of ingredient C-123X and .034% of ingredient M23-45, he can reproduce a taste and texture too similar to be distinct with different amounts of different ingredients.

    I look forward to the patent food wars.

  • SQRLSY One||

    Just stay the hell away from my Cheez-Whizz!!!

    Don't forget, some smart feller way back when... Or was it a fart smeller? ... Said, "Blessed are the cheese fakers"! So do NOT mess with my tastes or my Cheez-Whizz!!!

    (For you folks out there wanting to be as cultured as I am, Mogen David fortified wines are the best to go with Cheez Whizz).

  • Chipper Morning Baculum||

    You are quite the sophisticated fellow!

  • sharmota4zeb||

    You can't patent or copyright a food or scent combination because nobody had to "invent" the Snicker's bar for people to figure out the concept of yummy.

    Oh common, if food was naturally aesthetically pleasing, museum galleries would be full of paintings of food sitting on tables. Only modern folks think that pictures of lunch are worthy enough to post social media.

  • Eddy||

    But what about the poor judges, - this could have been a great opportunity for them to sample the exhibits to see if the tastes were similar.

    Think of all the cases they could have heard about competing brands of cheese, wine, etc!

  • DiegoF||

    Reminds me of how SCOTUS during the mid-20th flurry of obscenity cases would have "movie day," where they would make popcorn and all go down to the basement to watch whatever porn was on the docket at the time. Hugo Black was the only absolutist on the Court, and thus the only one who excused himself from every (or any) movie day on the grounds that nothing he could see there could possibly affect his decision to protect the film.

  • Chipper Morning Baculum||

    He was probably too busy writing the Korematsu decision.

  • TGoodchild||

    Still looking for examples of technologically advanced, generally free cultures which do not implement IP protection schemes...

    Fee shifting provisions in the U.S. Copyright act help minimize frivolous litigation, and for anyone who thinks that the vast majority of infringements are not fair uses, I have some Martian real estate to sell you.

  • JFree||

    Still looking for examples of technologically advanced, generally free cultures which do not implement IP protection schemes...

    You are aware that international conventions (since the Paris Convention of 1883 and the Berne Convention of 1886) require countries to enforce many of the provisions of OTHER countries IP protection. And those conventions are necessary to get into WTO and other trade conventions. So what would be the point of having no IP protection yourself but being an enforcement system for others??

  • JFree||

    Sounds can still be copyrighted even though the only example which imo is legitimate is the Q (fire truck) siren.

  • Rat on a train||

    Wikipedia says it is trademarked not copyrighted.

  • Rockabilly||

    I enjoy Cheech and Chong Cheese with Doritos (TM).

  • Longtobefree||

    This is in direct conflict with the cases or US law defining feelings as more fact than facts.
    Good thing they are on a different continent.

  • SQRLSY One||

    Yes, it is indubitably a FACT that you have hurt my baby feelings!!!

  • Deconstructed Potato||

    I'm only restricted by copyright when fully reconstructed.

  • Chipper Morning Baculum||

    [pours milk onto deconstructed potato]

  • SQRLSY One||

    http://www.youtube.com/watch?v=qrQVFZx7XX4

    Boil 'em, mash 'em, stick 'em in a stew!

    Stickem Inastu sounds like a good name for a Chinese ambassador or some such!

  • Chipper Morning Baculum||

    All right, I've had just about enough of these annoying, and unreadable ads at the bottom of the screen. Whoever came up with those needs a stern talkin' to. With a giant, motorized phallus.

  • Benitacanova||

    Granted that these so-called cheeses are probably not copyrightable, but the EU would love to destroy all regional protections on its way to total domination. They have already decided that their definition of "mozzarella" supersedes the definition of mozzarella in Italy. And so on and so on. The EU is a monstrosity with two ugly heads - one speaks german and the other french.

  • JFree||

    EU speaks Spanish to God, Italian to women, French to men and German to my horse

  • Tony||

    But where does everyone stand on Stilton v. Roquefort?

  • Vernon Depner||

    You can stand outside with the Stilton.

  • inflammatory_rhetoric||

    No surprise. Harley Davidson could not trademark the sound of their motorcycles.

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