In 1987, Norberto Colón Lorenzana had what we can all agree is a pretty unremarkable idea. Colón, who had just started working at a fast food joint called Church's Chicken in Puerto Rico, suggested to his employer that they try adding a basic fried chicken sandwich to a menu that was mostly chicken-by-the-piece.
The "Pechu Sandwich," as it was christened when it was added to Church's menu in 1991, was made with fried chicken, tomato, lettuce, garlic mayonnaise, and bread. And it was wildly popular.
There was a problem, however — in Colón's eyes anyway. The fast food chain benefited handsomely from his creation, but he, the creator, never saw a dime. So in 2014, 24 years after the Pechu Sandwich was introduced, and eight since it was trademarked by South American Restaurant Corporation (SARCO), the franchisee that operates Church's Chicken restaurants in Puerto Rico, he filed a lawsuit, claiming that the company had taken advantage of his intellectual property and demanding that he share in the profits.
"Colón claims that SARCO violated his intellectual property rights for both the "recipe" of the Pechu Sandwich and the name of the item itself," an appeal from the U. S. District Court for the District of Puerto Rico says."He asserts that the term Pechu Sandwich is a creative work, of which he is the author."
Pechu is an abbreviation for 'pechuga' in Spanish, which means breast and is used interchangeably with chicken breast in Puerto Rico.
The suit might read to some like parody. But Colón saw little humor in the way things unfolded. The sandwich and its name were the products of his imagination, and he believed he was due $10 million dollars in damages.
But those are millions the Puerto Rican chicken sandwich whisperer will never see. Last Friday, a U.S. appeals court panel ruled that sandwiches, especially unremarkable chicken sandwiches, are not copyrightable.
"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," Chief Judge Jeffrey Howard wrote in the decision of the U.S. Court of Appeals for the First Circuit. "The name of the food item is also not copyrightable, because copyright protection cannot be extended to words and short phrases, such as names, titles, and slogans."
Copyright law protects a slew of intellectual property, including works of architecture, music, literature, and other forms of art. Food, however, is noticeably missing from the Copyright Act, which runs 124 pages, but includes no mention of the word 'recipe' or phrase 'food dish.' There are eight copyrightable categories, and food is not one of them.
In 2006, the Guardian tried to figure out whether it was possible to copyright a dish. The conclusion was that it was possible, but profoundly difficult. "It would have to be substantially different from anything that had been done before," Paul Lewis wrote.
The legal gray area affects recipes, and has upset many chefs. But there is good reason for why there is no patent or copyright for food dishes, even when they're a lot more innovative than Colon's basic fried-chicken sandwich. Tyler Cowen, an economics professor at George Mason University who has written extensively about the economics of food, compared the patentability of music and food on his blog Marginal Revolution in 2006:
Food relies so much on execution, or at the national chain level on marketing, that the mere circulation of a recipe does not much diminish the competitive advantage of the creative chef. Try buying a fancy cookbook by a celebrity chef and see how well the food turns out. (In contrast, an MP3 file is a pretty good substitute for a CD.) Most chefs view their cookbooks as augmenting the value of the "restaurant experience" they provide, not diminishing it. Furthermore industry norms, and the work of food critics, will give innovating chefs the proper reputational credit. It is not worth the litigation and vagueness of standards that recipe patents would involve.
There is, in other words, according to Cowen, a moral but not legal obligation to give credit where credit is due. Of course, that affords Colón, whose chicken sandwich carries no public recognition that the idea was his before it was Church's, little solace. He'll have to settle for spreading the truth about the "Pechu Sandwich" by word of mouth.