Confection Protection : Sylmar Firm Wins Copyright Suit on Chocolate Design

When California chocolatier Rena Pocrass saw a competitor selling copies of her seashell-shaped chocolate dessert container, she was, well, shell-shocked.

This was the design she created for a Nancy Reagan luncheon in 1986. She claimed copyright infringement and won in court, stirring up that culinary question: When does food become art?

“It has opened a Pandora’s box as to what is copyrightable,” acknowledged Rick Pocrass, Rena’s husband.

A federal jury this month decided that Presidential Confections Inc. of Norristown, Pa., infringed on the copyright of Chocolates a la Carte of Sylmar.

The California company’s specialty is thin, molded containers made of high-quality French chocolate, dark or white, used in classy restaurants to hold mousse, fruit or ice cream. They have 350 designs, including a saxophone for a Bill Clinton fund-raiser, and they’re all copyrighted.

The confection that ended up in court was in the spiral shape of a nautilus shell. Pocrass added markings, widened the opening and flattened one side so it would stand up. The changes, her lawyers argued, made it a copyrightable work of art.

“It sits up at what my wife thought was a very sophisticated angle,” said Pocrass, the company’s chief executive. “When she did it, she looked at different angles, how it would be presented.”

A client of Presidential Confections saw Pocrass’ shell in a book by Tiffany’s and asked Norristown chocolatier Ira Dubner to copy it. He did--minus the markings--and was displaying it at a trade show when Rena Pocrass happened by.

“That’s my nautilus shell,” she told her husband. It had become the company’s flagship, he said.

After the jury determined that the copyright had been violated, the plaintiffs asked the judge for an injunction against Presidential and damages of up to $100,000. Presidential plans an appeal.

“The argument essentially was that she was not entitled to a copyright because what she had done was not original and not creative,” said its attorney, Joseph Gontram. “The question is whether the flatness of the nautilus shell” qualifies as an original design on a natural object, he said.

So could a chef copyright the distinctive swirl of a sauce that he puts on a plate? What about ice sculptures? A cleverly carved radish?

That might be too much, said chef Raimund Hofmeister, president of the Los Angeles Culinary Institute. But he believes that chefs should have copyright protection for mass-produced creations.

“If everybody starts copyrighting, it’s going to be a jungle out there,” Hofmeister said.