Flavor Can't Be Copyrighted Because It's Too 'Subjective and Variable,' EU Court Rules

The ruling came in the case of a spreadable Dutch cheese accused of being a copycat.
herb cheese spread
PoppyB // Getty Images

Back in 2006, Robin Wickens, the chef at Melbourne's Interlude, visited WD-50 in downtown Manhattan and tried Wylie Dufresne's puréed prawns with smoked yogurt, paprika, and nori. Wickens liked the dish so much that when he returned home, he put the same thing on the menu at his restaurant. A small scandal ensued (on the now-defunct eGullet.com) when WD-50's pastry chef noticed the similarities and posted incriminating photos. For his part, Wickens didn't deny that he'd copied Dufresne's dish. He sent the New York restaurant an apology, but told the Guardian, "At no time did I try and claim that I invented any of the dishes that I had experienced in the US and recreated at Interlude."


According to the Wall Street Journal, this incident—along with the internet's propagation of global food trends—inspired some people in the food industry to try to protect their flavors by "requiring staff to sign nondisclosure agreements, threatening alleged copycats with lawsuits and seeking patents for individual dishes."

Unfortunately for any litigiously inclined chefs, recipes can't be patented, and now a new ruling out of the Court of Justice of the European Union says that, more broadly, flavor or taste isn't protected by copyright laws anyway.

In 2011, a small grocery store in the Netherlands sold the secret recipe for their popular cheese spread, which they called "witches' cheese," to the Dutch company Levola Hengelo, which called the cheese Heksenkaas. Almost right away, imitations popped up on the market, including the similarly spreadable, herb-filled cream cheese Witte Wievenkaas, sold by Smilde.

Levola brought a lawsuit against Smilde claiming copyright infringement in an effort to force the latter to cease production. The case wound its way through the Dutch courts until it was referred to the EU's top court over the summer, which ruled earlier this week that "[t]he taste of a food product is not eligible for copyright protection."

Copyright refers to the expression of an intellectual idea (not the methodology, or the recipe itself, which would be covered by patents if those were allowed in the food world). Which means the final product has to be specific, unique, and "identifiable with sufficient precision and objectivity." The issue seems to be that, unlike a literary work of art or a particular image, flavor can't be described objectively, because it is effected by "factors particular to the person tasting the product concerned, such as age, food preferences and consumption habits, as well as on the environment or context in which the product is consumed."

In other words, it's impossible to prove that Heksenkaas and Witte Wievenkaas would necessarily taste the same to someone.

“Even an expert had to admit it’s really difficult to describe what a taste is,” Tobias Cohen Jehoram, a lawyer for Smilde, told the New York Times. “Our argument was if you can’t describe what your monopoly is, you have not sufficiently stated your claim.”

Meanwhile, the director of Heksenkaas, Michel Wildenborg, told Reuters, “We find it a pity and incorrect that the creative expression in food and perfumes do not have copyright protection and that everyone can make a copy of it."

And, no offense to Heksenkaas, but anyone can make a copy of it. It's just cream cheese with garlic, leeks, and parsley. Sounds good, though.