U.S. First Circuit - The FindLaw 1st Circuit Court of Appeals News and Information Blog

You Can't Copyright a Chicken Sandwich

Sorry gourmands, chefs, fast food line cooks, you cannot copyright a sandwich, no matter how tasty it might be. One forward-looking Puerto Rican gastronome learned that the hard way last Friday, when the First Circuit tossed his copyright violation suit over a chicken sandwich.

Way back in 1987, Norberto Colon Lorenzana convinced his employers at Church's Chicken to add a simple chicken sandwich alongside their deep-fried thighs and wings. The idea took off and the "Pechu Sandwich" soon became a staple in Puerto Rican Church's franchises. Almost twenty years later, seeing the continued sale of his sandwich, Colon Lorenzana cried fowl, arguing in court that the Church's chains were violating his copyright.

A Delicious Dispute

Church's Pechu Sandwich is simple, but its creation was not. ("Pechu Sandwich" is a play on pechuga, the word for chicken breast in Puerto Rico.) After Colon Lorenzana suggested the dish, it took almost four years of taste testing before the item was released by the South American Restaurant Corporation, the operator of Church's Chicken spots in Puerto Rico. The recipe was not complex: fried chicken breast patty, lettuce, tomato, American cheese, and garlic mayo on a bun.

The dish was a success. An insider source tells FindLaw that Church's Chicken has quiet the following among Boricuas and pechucombos are almost as common as arroz con pollo in San Juan. SARCO trademarked the sandwich with the Puerto Rican Department of State and, in 2005, the USPTO. Colon Lorenzana, claiming SARCO has misappropriated his intellectual property sued for a percentage of the sandwich's profits, almost two decades after its creation -- valued, by Colon Lorenzana at least, at $10 million.

Food Isn't Intellectual Property

Unfortunately for Colon Lorenzana, SARCO, and other sandwich artists, a simple recipe is not the type of creative work that is copyrightable. Copyright law protects eight directly enumerated categories of works, the First Circuit noted, from literature to architecture. Sandwiches didn't make the cut. In fact, recipes, "or any instructions," which simply list the combination of ingredients are plainly not eligible for copyright protection, the court noted. As the Washington Post notes, it's very difficult for a dish to be copyrightable at all. Any novel recipe would have to be significantly different from anything cooked before, to be protected.

The First Circuit also wasn't convinced by the "meat" of Colon Lorenzana's complaint: that SARCO obtained the USPTO copyright registration by fraud. Though Colon Lorenzana claimed SARCO procured the registration without his consent and with the intent to injure him, the court notes that he had put forth no evidence to support the allegations. With no way to draw a reasonable inference of liability, Colon Lorenzana's fraud claims were tossed, right along with his copyright ones.

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