How The Heavy Hand Of Government Stifles The On Demand Economy

Appeals Court: No, You Can't Copyright A Chicken Sandwich

from the though-you-can-indict-a-ham-sandwich dept

Tue, Aug 25th 2015 10:35am — Mike Masnick

There's a famous line about grand juries and their willingness to indict anything prosecutors put in from of them, that they will "indict a ham sandwich" (coined by a judge who was later indicted himself in an effort to prove the point). But, someone apparently asked, can you copyright a chicken sandwich? This apparently serious legal question was recently taken up by the First Circuit appeals court to review a dispute about who owns the idea for a chicken sandwich.

The backstory is that a guy named Norbeto Colon Lorenzana, working for Church's Chicken (owned by South American Restaurant Corporation, or SARCO) in Puerto Rico, thought that the restaurant should add a chicken sandwich to the menu. His bosses tested out some recipes and settled on the following recipe (which does not seem all that original): "a fried chicken breast patty, lettuce, tomato, American cheese, and garlic mayonnaise on a bun." Church's dubbed this the "Pechu Sandwich" and apparently it sold pretty well at Church's Chicken. Colon apparently decided that because it was his idea, he deserved a cut of every sale. And thus he sued for trademark and copyright violations (sorta, as you'll see)... because popular culture keeps falsely telling people that "intellectual property" must "protect" any possible "idea" they ever come up with, no matter how common or obvious it is, and no matter whether or not those ideas are even remotely protectable.

The lower court correctly laughed this out of court, and Colon appealed, only to find the appeals court similarly unamused. Not surprisingly, apparently Colon's original complaint was so devoid of actual legal arguments that the court decided to "generously glean a claim for violations of the Copyright Act and a second claim under the Lanham Act for trademark infringement." As the ruling notes in a footnote, Colon didn't actually state either such thing, but the court said he claim close enough, and then in a reply to the company's motion to dismiss, Colon clearly was relying on copyright law, so it's a "copyright claim" even if the original complaint failed to make such a claim. The court also notes that "Colon does not seize upon the generosity of the district court and fails to develop any argument in his appellate briefing related to trademark infringement," so it drops the (bogus) trademark arguments entirely.

Either way, even with the court "generously" saying there's a copyright claim, there isn't actually a copyright claim, because this is a freaking chicken sandwich.

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.... As for the "Pechu Sandwich" moniker, we have previously held that "copyright protection simply does not extend to 'words and short phrases, such as names, titles, and slogans.'"

The court separately rejects Colon's claim that SARCO registered the trademark in the sandwich by fraud (apparently in not giving it to him or something). The court again has trouble figuring out what he means, because he has no explanation:

We need not linger over the potential elements of a Section 38 claim or the application of Rule 9(b) because the complaint fails for a more fundamental reason. It simply fails to sufficiently allege that any false statement exists. Colon merely offers conjecture about SARCO's actions and intentions. He avers that SARCO "intentionally, willfully, fraudulently and maliciously procured the registration of Plaintiff's creation in the Patent and Trademark Office without his consent and . . . with the intent to injure the Plaintiffs," but the complaint is silent as to any facts to support such conclusions.

These kinds of lawsuits are what you get when you keep telling people that ideas are "ownable" and that anyone who does anything with your idea must be somehow infringing on your rights. Thankfully, the courts have quickly dumped this, but it's still a waste of time and resources.

14 1698P 01A (PDF)14 1698P 01A (Text)

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Filed Under: 1st circuit, chicken, chicken sandwich, copyright, noberto colon lorenzana, ownership society, pechu sandwich, recipes, trademark
Companies: church's chicken, sarco

43 Comments

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OnTheWaterfront, 25 Aug 2015 @ 10:43am

Shiiiiat man that ain't no thang but a chicken wang on a string.
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- Anonymous Coward, 25 Aug 2015 @ 10:59am
  
  Re:
  We goin Siiiiiizler. We goin Siiiiiizler.
  [ link to this | view in chronology ]
DannyB (profile), 25 Aug 2015 @ 10:50am

Patents?
Patents anyone?

Still, once a chicken sandwich is fixed in a tangible medium, then doesn't the creative expression of the chick sandwich become eligible for copyright?

C'mon, RIAA? MPAA? Call your lobbyists.
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- DannyB (profile), 25 Aug 2015 @ 11:03am
  
  Re: Patents?
  Patents are definitely the way to go for chicken sandwiches. Not copyright.
  
  The careful USPTO examination process makes use of a room full of kittens with "PATENT GRANTED" stamps affixed to their feet.
  
  I hear you not only can patent a method of swinging in a circular motion on a public park swing, but you can also patent rectangles with rounded corners. Bouncy scrolling. The possibilities are endless. Why not chicken sandwiches.
  
  The Eastern District of Texas is definitely the venue to use in order to get the vast rewards you are entitled to for having the creative boldness and innovative genius to conceive of a chicken sandwich.
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  - sorrykb (profile), 25 Aug 2015 @ 11:30am
    
    Re: Re: Patents?
    The careful USPTO examination process makes use of a room full of kittens with "PATENT GRANTED" stamps affixed to their feet.
    Thanks a lot. Now I can't be angry at the patent office for their foolishness, because when I think of them I imagine kittens.
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    - Anonymous Coward, 25 Aug 2015 @ 4:40pm
      
      Re: Re: Re: Patents?
      Sorry, they couldn't use kittens to mark this chicken sandwich as granted. By the time the kittens were done, large portions of the example sandwich that has been submitted had been consumed.
      
      ...and the patent on "kitten-chewed bread sandwich" had already expired.
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- pegr, 25 Aug 2015 @ 12:19pm
  
  Re: Patents?
  >Still, once a chicken sandwich is fixed in a tangible medium, then doesn't the creative expression of the chick sandwich become eligible for copyright?
  
  It does in Germany:
  
  http://www.eater.com/2015/8/14/9153029/instagram-food-porn-copyright-law-germany
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  - Sheogorath (profile), 25 Aug 2015 @ 1:16pm
    
    Re: Re: Patents?
    That's what's so stupid about the German law; food can't be 'fixed' in any medium. It's either eaten, gets binned, or it rots. Totally asinine!
    [ link to this | view in chronology ]
    - Anonymous Coward, 25 Aug 2015 @ 2:54pm
      
      Re: Re: Re: Patents?
      Does German law say "Fixed" or "Medium"?
      The stupid, asinine part is transposing one countries law over anothers.
      US law says Fixed in a Medium , I haven't seen it anywhere else.
      German law says "made available to the public", for example.
      [ link to this | view in chronology ]
      - Sheogorath (profile), 25 Aug 2015 @ 3:03pm
        
        Re: Re: Re: Re: Patents?
        US law says Fixed in a Medium, I haven't seen it anywhere else.
        UK law says fixed in tangible form, and since the Berne Convention from which that phrase is derived has been made law all across Europe... Ignorance is not a reasonable excuse for lack of knowledge.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 25 Aug 2015 @ 6:50pm
        
        Re: Re: Re: Re: Re: Patents?
        UK law says no such thing, neither does the Berne convention from what I can see.
        Wikipedia says "fixed" about the Berne convention but it's in inverted commas.
        i'm happy to be proven wrong.
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        Sheogorath (profile), 25 Aug 2015 @ 7:38pm
        
        Re: Re: Re: Re: Re: Re: Patents?
        Someone clearly hasn't bothered to look. https://www.gov.uk/copyright/overview Then there's the Copyright Duration Directive, which covered countries, including Germany, that were already signatories to the Berne Convention. It's not good to be lazy, you know. You soon get called out on it.
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        Anonymous Coward, 25 Aug 2015 @ 8:31pm
        
        Re: Re: Re: Re: Re: Re: Re: Patents?
        I've read the UK act and the original Berne of 1886 as well as the 71 revision.
        I'm asking you to prove you are right, partly so that you read them yourself as they don't use the term you say that do.
        I'm not ignorant or lazy, and I'm not wrong either.
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        Anonymous Coward, 25 Aug 2015 @ 8:41pm
        
        Re: Re: Re: Re: Re: Re: Re: Patents?
        Also it's a bit rich sending someone to wikipedia with link text that says THEY are lazy. Also the Berne Convention was signed in 1886, you're looking at a duration directive from 1993.(that wiki page does not contain the word fixed either, or form, or tangible, so therefore doesn't prove your point)
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        Sheogorath (profile), 25 Aug 2015 @ 9:21pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Patents?
        It's 5:20 in the morning where I am. What's your excuse?
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        Anonymous Coward, 25 Aug 2015 @ 9:41pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Patents?
        I'm just waiting for you to point to the place in German law where it uses the word fixed in tangible form like you said it did. I don't care that you're losing sleep over it.
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        Seegras (profile), 26 Aug 2015 @ 3:21am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Patents?
        Here http://www.gesetze-im-internet.de/urhg/BJNR012730965.html#BJNR012730965BJNG000301377
        
        And §15 differentiates between "fixed" ("in körperlicher Form") and "non-fixed", but that's not related to eligibility.
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        Anonymous Coward, 26 Aug 2015 @ 4:00am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Patents?
        (1) The author has the exclusive right to exploit his work in material form; this right shall in particular include...
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        Sheogorath (profile), 25 Aug 2015 @ 7:42pm
        
        Re: Re: Re: Re: Re: Re: Patents?
        BTW, you know the thing that gave Americans automatic copyright? It's called the Berne Convention Implementation Act 1988. I wonder why?
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        Anonymous Coward, 25 Aug 2015 @ 7:52pm
        
        Re: Re: Re: Re: Re: Re: Re: Patents?
        You haven't proven anything there buddy. That UK link doesn't contain what you think it does.
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        Anonymous Coward, 25 Aug 2015 @ 8:13pm
        
        Re: Re: Re: Re: Re: Re: Re: Patents?
        It's called the Berne Convention Implementation Act 1988.
        I think you need to re-read House Report 94-1476 (Sept 3, 1976) which concerns itself with the Copyright Act of 1976. As is customary, the House Report begins with the text of the bill (S.22) then under consideration.
        
        Pay good attention to the (amended) § 102.
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        Sheogorath (profile), 25 Aug 2015 @ 8:54pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Patents?
        Okay, so if someone rips off something you wrote and says, "But you didn't register it for copyright!" I guess you'll just suck it up?
        [ link to this | view in chronology ]
        
        Anonymous Coward, 26 Aug 2015 @ 12:05am
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Patents?
        … just suck it up?
        That's an interesting choice of words. I don't understand your motive here.
        
        Past performance is not necessarily indicative of future results.
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- Anonymous Anonymous Coward, 25 Aug 2015 @ 1:25pm
  
  Re: Patents?
  If a chicken sandwich can be fixed in a tangible medium, then is the resultant output, after consumption, considered a derivative work? If so, then said output is copyright-able as well, isn't it?
  
  Does there have to be a forensic analysis of said output to confirm the original tangible medium? What happens if something else was consumed at the same time, does that taint the resultant output to such a degree that any forensic analysis becomes mute?
  
  God is copyright a mess.
  
  Oh yeah, what happens if the chicken is overcooked, is that tangible or derivative?
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- Bergman (profile), 27 Aug 2015 @ 8:08am
  
  Re: Patents?
  If anyone owns the rights to the tangible expression of the idea of a sandwich that would be John Montagu (b.1718, d.1792), the Fourth Earl of Sandwich.
  
  https://en.wikipedia.org/wiki/John_Montagu,_4th_Earl_of_Sandwich
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Anonymous Coward, 25 Aug 2015 @ 10:58am

Colon, what an appropriate name for someone who is full oh shit.
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- DannyB (profile), 25 Aug 2015 @ 11:07am
  
  Re:
  If chicken sandwiches can be copyrighted, then what you are referring to is actually a derivative work under copyright law. See the recent article about copyrighting pictures of food.
  
  If the pictures can be copyrighted, why not the food itself?
  
  Why not the derivative works that flow from the result of consuming it? ("flow" may be the wrong word?)
  
  Isn't this the very substance of what copyright law is about?
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  - Sheogorath (profile), 25 Aug 2015 @ 11:44am
    
    Re: Re:
    If the pictures can be copyrighted, why not the food itself?
    The food is copyrighted in Germany, that's why photographs are banned as 'unauthorised derivative works'.
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Anonymous Coward, 25 Aug 2015 @ 11:12am

Q: Why did the chicken sandwich cross the road?

A: "Because those guys are morons" said the chicken.
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- sorrykb (profile), 25 Aug 2015 @ 11:27am
  
  Re:
  Anonymous Coward wrote:
  Q: Why did the chicken sandwich cross the road?
  
  A: "Because those guys are morons" said the chicken.
  
  Careful with your derivative work there, or the author of the original chicken-road joke will sue.
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Sheogorath (profile), 25 Aug 2015 @ 11:37am

[Colon's] bosses tested out some recipes and settled on the following recipe (which does not seem all that original): "a fried chicken breast patty, lettuce, tomato, American cheese, and garlic mayonnaise on a bun."
My family makes those all the time at home, apart from not knowing the nationality of the cheese (cheese slices from a packet). We never thought of a fanciful name like 'Pechu Sandwich', though. We just call them chickburgers.
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Anonymous Coward, 25 Aug 2015 @ 11:40am

No need to evaluate copyright/trademark/patent here
Norbeto Colon Lorenzana worked for the company when he came up with the idea of the chicken sandwich.

Therefore it was a work for hire and as such any "rights" of said idea belong to the company not Norbeto.

Had Norbeto not had his head up his middle name all of this woud have been obvious.
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- Anonymous Coward, 25 Aug 2015 @ 2:37pm
  
  Re: No need to evaluate copyright/trademark/patent here
  ...Norbeto Colon Lorenzana worked for the company when he came up with the idea of the chicken sandwich.
  
  Therefore it was a work for hire and as such any "rights" of said idea belong to the company not Norbeto...
  
  Good point but brings up the question: which company?
  
  This is a franchise business. Who gets the rights: the franchisor or the franchisee?
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radarmonkey (profile), 25 Aug 2015 @ 11:42am

WTF? This clown didn't start working for the chain until 1987. I was making Chicken Sandwiches in 1985 at Wendy's!!
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DannyB (profile), 25 Aug 2015 @ 2:20pm

Chicken Sandwich in the movie 2001: A Space Odyssey
I seem to remember some astronauts traveling from a moonbase to a remote location in some type of transport. It was time to eat. They opened a container. It had several types of (copyrighted) sandwiches.

One of them was a Chicken Sandwich.

Or maybe not...

"Anybody hungry?"
[Rummaging] "What's that, chicken?"
"Something like that. Tastes the same anyway."
"Got any ham?"
[Rummaging] "Ham, ham, ham…"
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John Mitchell (profile), 25 Aug 2015 @ 3:33pm

A recipe for scrambled eggs can be copyrighted
Lest anyone take too literally the notion that you can't copyright a recipe, there is a copyrighted work entitled "Copyrighted Recipe for Scrambled Eggs" -- see http://www.moosemanorfarms.com/egg-recipes.html
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- Sheogorath (profile), 25 Aug 2015 @ 9:00pm
  
  Re: A recipe for scrambled eggs can be copyrighted
  Except that the recipe isn't unique and still doesn't have a copyright. The extremely creative expression of the author's method, on the other hand...
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Anonymous Coward, 25 Aug 2015 @ 6:09pm

if he succeeded, what would have become of kfc?
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- Anonymous Coward, 25 Aug 2015 @ 7:54pm
  
  Re:
  KFC would be considered prior art and the patent would be
  thrown across the street.
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  - Anonymous Coward, 25 Aug 2015 @ 9:03pm
    
    Re: Re:
    I know a 7 year old that calls it the Kid Fattening Centre.
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Anonymous Coward, 26 Aug 2015 @ 5:27am

I thought the reason was "God owns the copyright on eggs".
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- sorrykb (profile), 26 Aug 2015 @ 10:29am
  
  Re:
  Anonymous Coward wrote:
  I thought the reason was "God owns the copyright on eggs".
  
  Now you're bringing orphan works into it.
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aman, 15 May 2019 @ 12:12am

Great Post. Thanks
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