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Man Tries to Copyright the Fried Chicken Sandwich; Court Says No

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By Christopher Coble, Esq. on August 27, 2015 11:43 AM

I've been on a search for the perfect fried chicken sandwich, trying just about everything from Chick-Fil-A and Carl's Jr. to local spots and food trucks. I have yet to make it to Church's, but based on one ex-employee's legal claim, maybe I need to give their "Pechu Sandwich" a try.

Norberto Colón Lorenzana attempted to patent what I assumed was a classic staple of American cuisine, claiming he invented it in 1991. But a federal court shut him down, saying the fried chicken sandwich could not be copyrighted, meaning restaurants, drive thrus, and food trucks are free to keep cranking out deliciousness without paying Lorenzana royalties.

Recipe for Success

In its short opinion, the First Circuit Court of Appeals points out that federal copyright law protects eight categories of works:

  1. Literary works
  2. Musical works, including any accompanying words
  3. Dramatic works, including any accompanying music
  4. Pantomimes and choreographic works
  5. Pictorial, graphic, and sculptural works
  6. Motion pictures and other audiovisual works
  7. Sound recordings
  8. Architectural works

Noticeably absent from this list are food recipes. And the court was concise in its rejection of Lorenzana's copyright claim:

"...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."

Sorry, Norberto, the chicken sandwich is ours.

No Copyrights, So You Can Copy a Recipe

It's true, you can't copyright a recipe. But you might be able to trademark the name of your dish. Both "Cronut" and "Derby Pie" are trademarked, meaning you can recreate the dish, you just can't steal the name. Lorenzana's complaint included a trademark charge, alleging a franchisee fraudulently trademarked his "pechu sandwich" name, but the court was unconvinced of that argument as well.

There's a Church's right down the street from my house, so their fried chicken sandwich is next on the list. It better be good, Norberto.

If you're wondering if your great business idea needs copyright, patent, or trademark protection, you may want to talk to an experience intellectual property attorney near you.

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