Say Cheese!

By Brand Heeler

A cheesy attempt to extend the range of copyright protection

Can cheese be a work of art?

Perhaps not a question you’ve ever considered, but nevertheless an issue of pressing legal concern to Dutch food manufacturer Levola. Although hailing from the land of Edam, Levola’s best known product is Heksenkaas or ‘witches’ cheese’ – a cream cheese flavoured with garlic and leeks. Meanwhile, their rival Smilde Foods makes a similar product called Witte Wievenkaas. In the Netherlands, ‘heksen’ are the kind of wicked witches you wouldn’t want to meet on a dark night, while ‘witte wieven’ (‘wise women’ or ‘white women’) are the good witches of lore – healers and herbalists.

You see what Smilde did there? Levola saw it, and definitely didn’t approve – unimpressed are the cheesemakers, as you might say!

Levola were less concerned about the colours of people’s pointy hats than about the unwelcome competition and sued Smilde. Without a patent or a trade mark to fall back on, they tried arguing that the flavour of Heksenkaas was an original artistic work, as worthy of copyright protection as any great novel , film or sculpture. In our view, this was an ingenious approach (and one they no doubt prepared very caerphilly!) It also wasn’t an entirely crazy idea – back in 2006 a Dutch court had said that, in principle, a perfume could benefit from copyright since it was the product of a perfumier’s artistic skill. (Interestingly, about the same time a French court held the opposite, describing les parfumeurs as more akin to craftsmen than artists, so no copyright for them…)

Levola’s dispute went to the European Court of Justice (ECJ) which held that flavours of foodstuffs are not eligible for copyright protection, but did so partly on the basis that taste is too subjective and depends too much on the identity and circumstances of the taster to be legally ascertainable.

We think this is the right answer but the wrong reason. In rejecting Levola’s arguments, the ECJ seems to have borrowed from its previous reasoning in the Sieckmann case of 2002. There, it refused trade mark protection for the ‘smell of cinnamon’ on the basis that this aroma could not be represented graphically, not even if one resorted to a chemical formula, a written description or a chemical sample.

We’ve never been terribly comfortable with this decision either, which smacks of cultural snobbery – smells may be hard to pin down in writing, and flavours likewise, but surely this is a matter of experience and education? After all, expert perfumers and winemakers have developed professional terminologies to describe their creations, and scientific techniques for olfactory analysis are improving constantly. And not everyone can understand musical notation but the courts don’t seem to have a problem with that. Maybe it comes down to more judges studying music than domestic science at school?

Surely anyone’s appreciation of any art is always subjective and dependent. Bach’s Brandenburg Concerto No 3 will sound very different when played in Sydney Opera House compared to us humming it in the bathroom while brushing our teeth in the morning, but it’s undeniably the same masterpiece. Why should a unique flavour be treated differently? Levola’s attempt to extend copyright law was brave but probably doomed from the start.

We reckon the ECJ’s reaction was always going to be something like: ‘Copyrighting cheese? No whey! You gouda brie kidding!’

This article contains our thoughts and opinions on an issue of general interest and is written from the perspective of Australian and/or English law. It is not legal advice and is not provided in the context of a solicitor-client relationship. It may not even be relevant to your jurisdiction. No duty of care is assumed or accepted. Please carry out appropriate research and consult with a suitably qualified legal expert before taking any action or making any decisions.