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Attorneys

A Chicken Sandwich is Not Copyrightable – Really?

August 28 2015

By: David Gabor

As reported in Law 360 and other outlets, the First Circuit has ruled that a chicken sandwich, no matter how amazingly delicious it may be, cannot be copyrighted. A Puerto Rican epicure named Norberto Lorenzana argued that he created the “Pechu Sandwich” which is “a fried chicken breast patty, lettuce, tomato, American cheese, and garlic mayonnaise” while working for a Church’s Chicken franchise in Puerto Rico.

According to Law 360, “[h]e sued the company in 2012, claiming it had misappropriated his intellectual property rights in the ‘recipe’ of the Pechu Sandwich and the name of the item itself, but a district court ruled last year that he couldn’t claim ownership of either.”

Entirely unsurprisingly, the First Circuit agreed. In language that may go down in the annals of law next to such well known sayings as “I know it when I see it” (Justice Potter Stewart) and “falsely shouting fire in a crowded theater,” (Justice Oliver Wendell Holmes) Judge Jeffrey Howard wrote, “a chicken sandwich is not eligible for copyright protection.” Boom.

In all seriousness, the decision underscores that recipes or instructions merely listing the combination of items to create something else (here, a sandwich) is not a copyrightable work. Copyright protection was not meant to extend to ‘words and short phrases, such as names, titles, and slogans,” Judge Howard wrote. Of course the standard for such instructions has been long debated in the context of compilations of various kinds (yellow pages cases, for example) and the basic rule remains that it is not copyrightable unless there is an element, no matter how small, of creativity to it. Functional elements are not protectable. In this case, no matter how or in what order you were to assemble the ingredients of the Pechu Sandwich, it’s all utilitarian.

The question takes on an entirely different mien in the context of, say, software. Code, in a sense, is nothing other than a list of instructions – much like Mr. Lorenzana’s chicken sandwich – but code is, of course, highly copyrightable because the function of the digital product is entirely dependent on how the code is constructed. Few would argue that that type of list of instructions is anything other than creative.

In fairness to Mr. Lorenzana, he apparently didn’t actually include copyright claims in his complaint, “but after the district court construed it to include them, he defended his purported copyright stake before the First Circuit.”