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The Knockoff EconomyHow Imitation Sparks Innovation$

Kal Raustiala and Christopher Sprigman

Print publication date: 2012

Print ISBN-13: 9780195399783

Published to Oxford Scholarship Online: April 2015

DOI: 10.1093/acprof:osobl/9780195399783.001.0001

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Cuisine, Copying, and Creativity

Cuisine, Copying, and Creativity

Chapter:
(p.57) 2 Cuisine, Copying, and Creativity
Source:
The Knockoff Economy
Author(s):

Kal Raustiala

Christopher Jon Sprigman

Publisher:
Oxford University Press
DOI:10.1093/acprof:osobl/9780195399783.003.0003

Abstract and Keywords

This chapter describes creativity and copying in cuisine. The tremendous output of creativity in contemporary kitchens has been accompanied by substantial copying. Universal dishes like molten chocolate cake did not just appear but debuted in a specific restaurant that migrated outward in slightly altered form. The supposed inventors, for example Jean-Georges Vongerichten in the case of the molten chocolate cake, cannot claim royalties on their creations nor effectively stop the interpretation. In the United States, culinary creations are excluded from the protection of the copyright law.

Keywords:   creativity, copying, cuisine, copyright law, royalties, culinary creations

In the spring of 2007 a chef named Ed McFarland opened a restaurant on Lafayette Street in downtown Manhattan called Ed’s Lobster Bar. For years McFarland had been the sous-chef at the very successful Pearl Oyster Bar on Cornelia Street in Greenwich Village. Pearl Oyster Bar was a small place, but it was well known and always packed. The chef and owner, Rebecca Charles, had built an avid following based on a simple formula: a short list of excellent seafood, elegant but spare New England coastal décor, a signature Caesar salad with English muffin croutons, and plenty of oyster crackers on the tables.

Eventually Ed McFarland sought to strike out on his own, and when he did, he took with him a lot of ideas drawn from his years working at the Pearl Oyster Bar. At least, so claimed Rebecca Charles. Shortly after Ed’s Lobster Bar opened less than a mile from Pearl, an angry Charles filed suit in the federal court in lower Manhattan. In her suit she claimed that McFarland had “pirated Pearl’s entire menu; copied all aspects of Pearl’s presentation of its dishes; [and] duplicated Pearl’s readily identifiable décor.”1 According to Charles, Ed’s Lobster Bar was “a total plagiarism” of her well-known restaurant. Perhaps most galling to Charles was the Caesar salad. When she taught (p.58) McFarland how to make her signature Caesar salad, she told him “you will never make this anywhere else.”2 Ed’s Lobster Bar menu nonetheless featured a Caesar salad somewhat tauntingly dubbed “Ed’s Caesar.”

McFarland saw things differently. “I would say it’s a similar restaurant,” he told the New York Times. “I would not say it’s a copy.” McFarland pointed to some differences between the two establishments. Ed’s Lobster Bar, he asserted, was “more upscale … a lot neater, a lot cleaner, and a lot nicer looking.” Moreover, Ed’s had a skylight (Pearl had none) and a raw bar (though at the time, and still today, Pearl served oysters and clams on the half shell, as well as a shrimp cocktail). McFarland also noted that much of the décor in Pearl Oyster Bar was in fact common to seafood bars in New England, which was the ostensible homeland for the menu and the design of both Pearl Oyster Bar and Ed’s Lobster Bar.* Nonetheless, it was undeniable that Ed’s Lobster Bar looked a lot like Pearl Oyster Bar. It was casual but crisply designed, with a long and narrow room and a bar as the centerpiece. The menu looked quite similar too, though Ed’s, as befitting its name, featured lobster more prominently.

The suit between Rebecca Charles and Ed McFarland was eventually settled out of court. But the issues it raised continue to vex the culinary community. What rights does a chef have to her creations? What makes a dish original? When does homage cross over to theft?

These questions, and others like them, are unsettled, but the stakes are not small. Like the fashion industry, the restaurant industry is very large—sales at American dining establishments alone were estimated at nearly $604 billion in 2010.3 Also like fashion, the world of cuisine features extensive imitation—call it borrowing, copying, or, if you prefer, piracy. And, in a situation similar again to fashion, for the most part American law grants chefs very limited rights over their creations. For all practical purposes recipes, no matter how original, cannot be copyrighted. So while a cookbook can be copyrighted as a whole, the individual recipes can be borrowed and republished by anyone—as a brief tour of the Internet, and popular cooking Web sites like Epicurious, will make clear.

(p.59) Perhaps more important, the “built food”—the edible dish itself—cannot be protected either. However good Rebecca Charles’s Caesar salad is, there is nothing in the law that stops the Ed McFarlands of the world from reproducing it. Anyone can taste a dish they like, apply their expertise to reverse-engineer it (by recognizing the taste and appearance of primary ingredients and reconstructing the steps taken to prepare them), and then recreate it elsewhere, including in a competitor restaurant. As any connoisseur of good food knows, this kind of copying happens all the time.

The contemporary culinary scene is nonetheless astonishingly creative. Globalization has brought us an ever-expanding palette of new ingredients from around the world, and made them ever more affordable. And new cooking techniques, such as those pioneered by the “molecular gastronomy” or “modernist cuisine” movement, abound. It’s no wonder that new dishes are invented and refined every day. In many respects we are living in a golden age of cuisine, with more choices and more creativity than ever before.

In short, cuisine presents much the same puzzle as fashion. How do chefs remain so creative while enjoying so little legal protection for their core product? Why doesn’t the mainstream view of copying—that it will squelch creativity—seem to apply in the kitchen?

A Very Brief Culinary History

For millennia, chefs throughout the world have labored to create delicious food. Yet for most of that history they labored in obscurity. In the West, only in the nineteenth century did a few great chefs, like Antoine Careme and Auguste Escoffier, achieve a public persona and some measure of fame. For many decades after these pioneers first entered the public eye, chefs were rarely treated as artists on par with their peers in the visual or literary arts, and for the most part restaurants, well into the 20th century, hardly noted their chefs. Today, of course, star chefs seem to be everywhere. Food lovers follow chefs from restaurant to restaurant, famous “consulting chefs” license the use of their names to kitchens that they may have never entered, and the Food Network has spawned an entire industry of chef contests and celebrities. The New York Times dining section documents the comings and goings of chefs as if they were baseball stars traded from team to team.

(p.60) While countries such as France, Italy, and China have ancient and storied food traditions, for much of its history the United States lacked a robust culinary culture. Local cuisines have long flourished in obvious places like New Orleans, as well as in less obvious spots, such as the low country of South Carolina, where traditional ingredients and dishes were passed down and cherished. But for the most part it is fair to say that compared to Europe, the United States was a culinary wasteland for a very long time. In his engaging history of contemporary American food culture, The United States of Arugula, David Kamp recounts the story of James Fenimore Cooper, the novelist, returning in 1833 from several years in France. Commenting on the differences between the French and American diets, Cooper called Americans “the grossest feeders of any civilized nation ever known,” and a people who subsisted on a “heavy, coarse, and indigestible” diet.4 While by the Gilded Age of the late 19th Century it was clear that the rich in the major cities ate very well—think Diamond Jim Brady and his Brobdingnagian feasts of oysters, terrapin, and roast duck—there was no mass culture of food appreciation in the United States. Fine dining in restaurants existed in places like New York, but until the end of the Second World War most Americans seldom ate in restaurants.

This began to change by the middle of the 20th century. The 1939 World’s Fair in Flushing Meadows, New York, was arguably the birthplace of contemporary fine French dining in the United States; it was the source of Henri Soule’s Le Pavillon restaurant in Manhattan, which, until its closure in 1971, was the sun around which postwar haute cuisine revolved in New York—as well as the training ground of many top chefs.5 In the same era, the influential chef and food writer James Beard nurtured a growing appreciation of traditional American cooking and ingredients. The burgeoning American interest in fine cooking was exemplified by, and stoked by, Julia Child’s television show The French Chef, which debuted in 1963 and quickly became a cultural icon. The nation, increasingly richer and blessed with more leisure time, embraced cooking as a pastime and even a passion.

By the 1970s a new wave of chefs, both in New York and in California (as well as in France), was redefining fine cuisine, emphasizing local ingredients, lighter treatments, and more casual service. Americans in due course discovered hitherto-exotic provisions such as goat cheese, baby greens, and sun-dried tomatoes. Lawyers Nina and Tim Zagat introduced their populist (in the sense that they reflected the views of many discerning customers, rather (p.61) than a single critic) restaurant guide in 1979, as Americans began eating out in greater and greater numbers. By the 1980s a full-blown culinary revolution was taking place, led by names that are now well known: Wolfgang Puck, David Bouley, Danny Meyer, Alice Waters. Slowly, chefs were becoming celebrities and restaurants a site of art appreciation on par—in the view of many—with the museum and the opera house. Even the US Department of Labor took note of these shifts, changing their classification of chefs from “domestics” to “professionals” in 1976.6

The “chef revolution” of the late 20th century coincided with, and was driven by, changes in how great cooking was understood and evaluated. Creativity has always been a part of fine cooking, alongside skillful and precise preparations of time-honored classics. But increasingly, culinary reputations were being made by innovative and bold new dishes. A well-known example is Wolfgang Puck’s much-imitated smoked salmon pizza. Pizza had been around for a long time, but it took Puck, an Austrian working in tradition-flouting Los Angeles (and to a large degree—perhaps a very large degree—working with the assistance of his original Spago pizza-man, Ed LaDou) to create something truly new in the pizza world.* Puck’s success spawned a rash of imitators, and pizza has never been the same. Along the way Wolfgang Puck became a very rich and famous man.

In short, from the 1960s onward, and especially during and after the 1980s, American food culture underwent a remarkable flowering. Across the board, a wealthier and more time-starved nation increasingly chose to eat out rather than cook in. To be sure, Americans overwhelmingly ate at fast-food restaurants, or at one of the thousands of simple Chinese take-out joints that dot the continent.7 (There are more Chinese restaurants in the United States than there are McDonald’s.) In parallel, however, the nation developed a more sophisticated restaurant scene, along with an increasingly food-knowledgeable populace that yearned to eat innovative, challenging cuisine.

Today, it is not too much of an exaggeration to say we live in an unprecedentedly food-centered nation—not for everyone, to be sure, but for a large (p.62) slice of affluent Americans. For these fortunate people, the search for creative and unusual meals is a way of life. Food is now art as well as sport.

The rise of the regular weekly restaurant review in the 1960s and 1970s perhaps best encapsulates this new reality. While the New York Times long had a food editor for what was known as the “women’s pages,” it was only with the advent of the legendary Craig Claiborne as food editor in 1960 that the make-or-break starred restaurant review, today so familiar a feature, came into its own.8 With it came a culture of seeking entertainment and pleasure from chefs, who now competed for public and private acclaim and the dollars a worshipping public brought. To do so, increasingly, ambitious chefs sought to either introduce novel cuisines to Americans or innovate within traditional idioms. And all the while the restaurant industry boomed: from $43 billion in food and drink sales in the United States in 1970 to over $600 billion today.9

Over time, nearly every great foreign cuisine, and many minor ones, became available, first in major American cities and then in smaller cities and towns, both in traditional and modern, tweaked, form. “American” food, usually dubbed New American, also became a religion for many as it updated traditional regional cookery to achieve a new, more sophisticated cuisine. A vibrant culture of culinary innovation took hold. Moreover, this culture was increasingly global, with chefs around the world frequently collaborating and sometimes borrowing from one another (or, less charitably, stealing). To be sure, some of this innovation has been less in the actual food than the atmosphere or design of the restaurant. (There is a restaurant in Brussels where diners are suspended in mid-air in a crane, and one, unsurprisingly now closed, in Tel Aviv where diners “pretended” to eat but paid with real money).10 But none of this flim-flammery gainsays the tremendous diversification of dining in the United States and around the world. Today, revered chefs such as Thomas Keller are known not just for their excellent restaurants but also for specific dishes they invented—such as Keller’s famous “Oysters and Pearls”: caviar-topped oysters on a bed of tapioca pearls.

The apotheosis of this trend toward extreme culinary innovation is what is often termed the “modernist cuisine” movement.11 Practitioners, such as Ferran Adria of the recently closed El Bulli restaurant in Spain and Homaro Cantu of Moto in Chicago, use complex and highly inventive processes to create flavored foams, liquid “olives,” edible inks, and various other savory special effects.12 Many of these dishes push the envelope of good taste; a few (p.63) are bizarre and arguably inedible. But they are unequivocally novel, and people pay dearly to experience them.

Even outside this rarified world, however, creativity in cuisine is prized in a way that contrasts sharply with the past. Chefs frequently seek to charge jaded palates through novel combinations of flavors, ingredients, and technique. The Wall Street Journal, for example, noted in 2006 “a big shift in high-end restaurant culture. … The past decade has seen the focus shift to innovation” and away from the apprentice-driven reproduction of classic dishes that anchored cuisine (especially French cuisine) for many decades.13 Not all restaurants pursue this approach, by any means, and the largest concentrations of highly innovative chefs are found in major cities like New York, Los Angeles, and Chicago. But creativity and variety are now prominent elements of culinary scenes throughout the nation. In short, it is difficult to dispute the proposition that we are living in a golden age of cuisine, with a far greater diversity of dishes—both innovative and traditional—available to us than ever before.

Copying in the Kitchen

This tremendous output of creativity in contemporary kitchens has been accompanied by substantial copying, or more charitably, borrowing, among chefs. Now-ubiquitous dishes, such as molten chocolate cake or miso-glazed black cod, did not just pop up like mushrooms after a storm. Each debuted in a specific restaurant but soon migrated outward in slightly altered form. The putative inventors (Jean-Georges Vongerichten in the case of molten chocolate cake, Nobu Matsuhisa for miso black cod)* can claim no royalties on their creations. Nor can they effectively halt the interpretation of their creations by others.14 Indeed, today a molten chocolate cake is even on the menu at a mass-market chain such as Chili’s. (In fact, a recipe claiming to be for Chili’s Molten Chocolate Cake is readily available on the Internet).15

(p.64)

Cuisine, Copying, and Creativity

Figure 2.1 Molten chocolate cake

© Shutterstock.com

Why are dishes like molten chocolate cake (or less common ones, like Oysters and Pearls) not protected against copying? In the United States, copyright law protects only “original works of authorship fixed in any tangible medium of expression.” In principle, there is no obvious reason why a culinary creation is not a work of authorship. It has an author (the chef), and it is certainly fixed in a tangible, albeit edible, medium of expression—the recipe is “fixed” in the food itself.16 A painting of a molten chocolate cake would clearly receive copyright protection; so too would a sculpture of one.* But as we will explain, under current law the molten cake itself would not be protected.

At the outset it is important to distinguish between the recipe for a given dish and what we referred to as the “built food.” The recipe is the ingredients and instructions: what a reader might clip out of the newspaper or pull up on Cooks.com. The built food is the actual, edible version that appears on a plate. This distinction is in many respects no different from that of the sheet (p.65) music for a song versus the sound recording of that same song, or the architectural plans of a building versus the actual building that you can enter and live in. As it happens, both sheet music and performed songs are protected by copyright. The same is true for architectural drawings and actual buildings. (In the case of buildings, this was the result of a specific amendment of American copyright law, the Architectural Works Copyright Protection Act, enacted in 1990).17 But despite the similarities to music and architecture, neither recipes nor built food are currently protected by copyright. And there has been no serious push to promulgate a “Culinary Works Copyright Protection Act” equivalent to the Architectural Works act.

Let’s consider recipes first. In 1996, the Meredith Corporation sued a company called PIL for allegedly poaching recipes from its cookbook Discover Dannon—50 Fabulous Recipes with Yogurt. The 7th Circuit Court of Appeals agreed that the recipes in the two books were very much the same. As the court stated,

There is not really any dispute that that salient PIL recipes are functionally identical to their counterparts in Discover Dannon. … [T]here are certain differences in the listing of ingredients, directions for preparations and nutritional information. However, it doesn’t take Julia Child or Jeff Smith* to figure out that the PIL recipes will produce substantially the same final products.18

Yet as the appeals court noted a few pages later, American law does not protect every act of creativity. Copyright protection does not extend to any “idea, procedure, process, system, method of operation, concept, principle, or discovery.” A recipe certainly looks like a procedure or method of operation: it tells the cook how to combine a set of specified ingredients using a number of specified techniques, and in what order. And indeed most courts and commentators that have considered the issue have held recipes to be procedures. Consequently, recipes are not generally copyrightable. Again the 7th Circuit:

(p.66) The identification of ingredients necessary for the preparation of each dish is a statement of facts. There is no expressive element in each listing; in other words, the author who wrote down the ingredients for “Curried Turkey and Peanut Salad” was not giving literary expression to his individual labors. Instead, he was writing down an idea, namely, the ingredients necessary to the preparation of a particular dish.19

Meredith v. PIL expresses the dominant view of recipes in American law. Recipes are functional guides, not creative expressions. Nonetheless, the Meredith court was careful not to create any blanket or overly rigid rule. The recipes copied by PIL from Discover Dannon were not copyrightable, the court declared, because they did not contain “even a bare modicum of the creative expression” necessary for copyright to apply. This phraseology appeared to leave the door open for recipes that do contain such a “bare modicum” of creative expression.

What does this all mean? The court implicitly rejected the idea that a recipe itself can be creative—even if it combines hitherto-uncombined ingredients, such as sea urchin and ice cream. But, it suggested, some recipes might contain enough creative expression to be copyrighted. The US Copyright Office—the federal agency that administers copyright law—has taken a similar position: any “substantial literary expression” that accompanies a recipe “in the form of an explanation or directions” may be copyrightable.20 So writing that comments or expands upon the recipe, as distinguished from the list of ingredients and the bare description of the steps taken to prepare them, is copyrightable.

An example from English food personality and chef Nigella Lawson’s cookbook, Nigella Bites, illustrates this distinction between recipe and ex­pression. In a prologue to her recipe for “Double Potato and Halloumi Bake,” Lawson claims that this seemingly simple dish has unappreciated virtues:

I first made this for a piece I was writing for Vogue on the mood-enhancing properties of carbohydrates. … It’s a simple idea, and as simple to execute. What’s more, there’s a balance between the components: bland and sweet potatoes, almost caramelised onion and garlic, more juicy sweetness with the peppers and then the uncompromising plain saltiness of the halloumi (which you should be able to get easily in a supermarket)—that seems to add the eater’s equilibrium in turn.21

(p.67) This passage is protected against copying, and Lawson’s musings on the mood-altering qualities of the dish probably comprise part of the cookbook’s appeal. Indeed, cookbooks are generally full of such passages, which provide color and context and help tell a story about the dish and perhaps the chef or author. The addition of these sorts of discussions also transforms a cookbook from a collection of recipes—“mere listings of ingredients”—into a copyrightable book.22 Still, the parts of Nigella Lawson’s recipe that seem the most valuable—the actual instructions on how to prepare the Double Potato and Halloumi Bake—can be copied at will.

If we step back, however, we might ask: Are recipes really just procedures? The simple answer is yes. The very point of a recipe is to tell the reader how to recreate the dish in question. Yet as the legal scholar Chris Buccafusco points out, treating recipes as uncopyrightable procedures is not consistent with how we treat another widely used set of instructions: sheet music. Recipes tell cooks how to reproduce a dish for someone to taste; sheet music tells musicians how to reproduce a song for someone to hear. There is no obvious reason to treat a sheet of paper with a recipe and a sheet of musical notation differently.23

What would happen if recipes were treated like sheet music? Because sheet music is protected by copyright, public performances of the music by anyone but the creator require a license. Likewise, if recipes were copyrightable, then the public preparation of that recipe by another chef would require a license.

Such a system would not be hard to implement. Many restaurants are already required to pay license fees to publicly perform musical works when they play a CD for the entertainment of their customers. There is no obvious reason that they should not also pay a fee when they entertain their customers with someone else’s original recipe. After all, the food, rather than the music, is the restaurant’s primary product. Of course, all this is conjectural; at the moment, there is no copyright protection for recipes, nor any notable effort under way to expand copyright to cover recipes.

“Built” food, recipes made tangible on a plate, is even more removed from current copyright law than are recipes. Copyright is meant to protect creative expression. The dominant view of food in American law, however, is that it is a functional item, much like clothing is functional. We eat food because we are hungry, and the qualities of a dish are thought to be dictated by functionality, not aesthetics. A foie gras mousse with burnt caramel sauce (p.68) and Maldon sea salt, by this reasoning, is not an expressive statement, but instead a vehicle for a specific function: the ingestion of needed (or unneeded) calories.

This view of food has long roots. Well before the 7th Circuit Court of Appeals decided Meredith v. PIL, the influential legal treatise Nimmer on Copyright opined that recipes were unlikely to be protected against copying “because the content of recipes [is] clearly dictated by functional considerations, and therefore may be said to lack the required element of originality, even though the combination of ingredients contained in the recipes may be original in a noncopyright sense.”24 Though the Nimmer treatise did not consider the status of built food, presumably the same reasoning would apply. A dish is useful, not artistic; therefore it is not within the scope of copyright. This perspective—known generally as the “useful articles doctrine”—is one that we have seen before in the context of fashion, and is foundational in American copyright law.

Some have challenged the application of the useful articles doctrine to food, on the grounds that there is nothing functional that dictates the content of striped bass wrapped in potato with a Barolo wine sauce or maple-bacon ice cream. These dishes were invented by someone, and exhibit as much originality as any painting or short story. They surely serve a function—satiating appetites—but people don’t seek out haute cuisine to feel full. They do so for the aesthetic experience.

Indeed, the same is true of clothing. A woman who purchases an expensive and elaborate dress does so because she likes the way it makes her look, not because it might also keep her warm. Despite this, the law deems the dress a useful article, effectively the same as a smock. Whatever its aesthetic appeal or originality, under current law the fact that a dress, or a scoop of sorbet, might serve a useful function is sufficient to strip away all copyright protection.25

In short, the copying of recipes and dishes is entirely permissible. And since there is no law stopping it, copying is—as you might expect—not unknown in the culinary world. Chefs around the globe imitate the innovative and popular creations of others. Copying is similarly ubiquitous in cookbooks and in prepared foods. And though it is difficult to measure, some of the chefs we interviewed think that copying is more common than ever. The rise of the Internet has made copying easier; one no longer need eat a particular dish to copy it, at least when the dish is described and (p.69) photographed with enough specificity on a food blog or magazine page. Yet, in an interesting twist, at the same time the Internet has made copying easier to identify, since the same photo + blog combination allows originators to quickly ascertain whether their signature dishes have been referenced, or simply recreated, by someone else. What is clear is that the combination means more debate over the topic of copying.

The spat between Pearl Oyster Bar and Ed’s Lobster Bar, in other words, is noteworthy not because the underlying behavior was unusual. Instead, the dispute stands out largely because Rebecca Charles, the chef and owner of Pearl Oyster Bar, decided to sue her former sous-chef. Increasingly, however, chefs are following her lead and trying to assert some rights, however thin, over their creations. While the dominant story in this chapter is one of copying creative works, there are nonetheless some barriers to copying in the kitchen. Before more closely analyzing the patterns of copying among chefs, we need to understand what legal tools do exist to limit copying.

Limits on Copying

Chefs can copy recipes and dishes from one another. But they cannot copy the look and feel of entire restaurants. Nor can they freely use trademarked names or phrases, such as “Spago” or “I’m Lovin’ It!”* In the Pearl versus Ed’s dispute, for instance, the press focused extensively on the idea that Ed McFarland had stolen recipes and dishes from Rebecca Charles. That was certainly part of the claim made by Charles in public. But a closer look at the actual legal complaint filed tells a somewhat different story. Charles’s lawyers, cognizant of the novelty and near-impossibility of claiming ownership over a dish—especially a type of Caesar salad—instead stuck to safer ground. They claimed that the “trade dress” of Pearl Oyster Bar had been appropriated.26

We discussed trade dress briefly in our tour of the fashion world. Trade dress is a legal concept akin to trademark. The idea is that the look or feel of a product (or service) can, like a brand name such as The Palm or Taco Bell, (p.70) signify the creator or maker. That feature makes the trade dress valuable to the owner and, most important, to the consumer who wants to purchase the item. As with trademark law, trade dress law aims to protect consumers from confusion. If a particular trade dress is associated with a particular producer, its use by a different producer might confuse customers about what exactly they are buying and who is responsible for it. At the same time, of course, trade dress law also protects creators from others who might closely imitate their products.

Trade dress disputes are nothing new in the restaurant world. The issue in these disputes is generally whether the design and décor of a given restaurant is generic, or instead somehow distinctive enough to evoke that particular eatery and no other. If the design and decor is distinctive enough, it is illegal to copy it.27 When San Antonio-based Tex-Mex chain Taco Cabana alleged that its Houston-based rival, Two Pesos, copied the distinctive Mexican-themed décor and open-kitchen layout of its restaurants, for instance, the Supreme Court had to decide the reach of trade dress law in restaurants.28

Considered today, the Taco Cabana trade dress looks fairly generic. But from the perspective of the Supreme Court back in 1992, the appearance of the Taco Cabana restaurants seemed distinctive enough. Two Pesos, the Court said, had illegally copied. (And the following year, Taco Cabana bought Two Pesos).29

Following the Supreme Court’s decision in Two Pesos v. Taco Cabana, many restaurants have asserted trade dress claims to prevent imitation of their décor, which can be as important to the restaurant’s appeal as the food. More generally, chefs can use the law of “unfair competition”—rules governing business conduct that are both broader and less specific than the rules of copyright and patent—to challenge the actions of those who take, or are overly inspired by, their restaurant’s look and motifs. A good example is the ongoing dispute between the Mr. Chow restaurants, famous along the New York-Los Angeles axis for very expensive Chinese food, and the upstart Phillipe Chow restaurants, which operate in the same pricey Chinese food niche. Phillipe Chow was started by a former employee of Mr. Chow named Chak Yam Chau; Chau was sued by Chow for a series of trademark and unfair competition violations.30 (Mr. Chau apparently changed his name to Phillipe Chow at some point prior to developing the restaurants.) The suit, which sought $21 million in damages, illustrates the economic importance of trademark and trade dress to restaurateurs.

(p.71) The law of trade secrecy is another useful tool for chefs. Trade secret law protects valuable business information, which can include unpublished recipes. The most famous example is the formula for Coke. That formula has remained a well-guarded secret—even within the company, knowledge of the formula is restricted to a few key individuals—and none of Coke’s rivals have ever succeeded in perfectly replicating it. The law protects trade secrets against theft by those owing some sort of duty to the owner, such as an employee or business partner. Still, nothing in trade secret law prohibits a competitor from reverse-engineering the way a particular risotto—or soft drink—is prepared.

In short, American law already protects some of the key features of a restaurant via trademark and unfair competition law, and it provides some (usually narrow) measure of exclusivity over unpublished recipes and special ingredients via trade secret. Restaurant names (“Pearl Oyster Bar”) and the names of specific dishes—examples include Chili’s Big Mouth® Burgers, or, more exotically, the Crack Pie® and Compost Cookies® served in David Chang’s famous Momofuku restaurant in New York—can be trademarked. A restaurant’s design and décor might be protectable by trade dress, if they are distinctive and well enough known to the public.

The other major form of intellectual property (IP), patent, has not escaped the notice of chefs and restaurateurs either. In the commercial food industry, patenting is a central business tool, deployed widely—many would argue too widely—to protect inventive industrial processes and products. (One company has even tried to patent the peanut butter and jelly sandwich, albeit an allegedly special crustless version).31 Among restaurant chefs, patenting is much less common, but it is not unknown. The most frequently noted example is Chicago-based chef Homaro Cantu, of the Moto and ING restaurants. Cantu, who cultivates a sort of mad-scientist persona, is famous for highly innovative dishes often made with complex tools and techniques. At one time Moto even featured a laser in its dining room used for preparing certain items. Cantu has sought numerous patents on his dishes, cookware, and techniques. Consulting closely with attorneys as he works out new creations, Cantu seems to have taken the most aggressive approach to intellectual property protection of any major American chef.

Perhaps the most talked-about innovation at Moto is edible paper embedded with particular flavors. For example, Cantu has served small sheets of this paper imprinted with an image of cotton candy. The paper itself tastes (p.72) of cotton candy. Edible, flavored paper is interesting enough, but what is arguably most striking is what is printed below the image:

Confidential Property of and © H. Cantu. Patent Pending. No further use or disclosure is permitted without prior approval of H. Cantu.32

This (edible) language is intended to serve as a novel form of license. The language invokes intellectual property law, but the provision’s real force is not IP, but the customer’s agreement to Cantu’s terms. Cantu, in other words, has made creative use of contract law to protect his innovations and confirm the rules under which the customer may enjoy them. Like the more familiar “click-wrap” license, which we encounter every time we download a software update or buy an item on the Internet, this license employs the law of contract to limit the use of an invention by others. Cantu’s lawyer cleverly calls it “sit-wrap” (though it may be just as apt to call it “eat-wrap.”) This kind of license has never been tested in court. But most courts have enforced click-wrap licenses, and so the sit-wrap license is far from crazy. The effect of the license is, moreover, likely to be substantial even if it is never tested in litigation. It communicates the rules of the restaurant. Most customers, once they understand the rules, are likely to abide by them.

The Debate over Copying in the Kitchen

Sit-wrap licensing has not yet caught on in the restaurant community, but it illustrates a more general point. Cuisine gets copied. And increasingly, chefs are asking why their creations are not the subject of the same level of protection enjoyed by other artists. A few are seeking creative means to ensure that their work does receive improved treatment. While these chefs may not be interested in the details of copyright law, they recognize that there are good reasons to question the widely varying treatment of different art forms. A recent tempest over copying in the kitchen illustrates how the issues are being debated inside the industry today.

In 2005 a restaurant in Melbourne, Australia, called Interlude began serving food of a sort never seen before down under. Interlude’s young chef, Robin Wickens, was already well known when he started shaking up the Australian culinary scene, but the highly creative dishes he served—such as pureed shrimp turned into noodles—were unlike his earlier work. (Indeed, (p.73) a 2004 review of Interlude in the Australian newspaper The Age chided the original menu for being a bit stodgy.)* Soon commentators on the Web site of the eGullet Society—which includes among its members and readers many famous chefs and food professionals—pointed out that the new dishes appeared to be direct copies of those served in famously innovative American restaurants such as Alinea in Chicago and WD-50 in New York. And as it turned out, Wickens had volunteered (a practice known in the industry as “staging”) for a short period at Alinea just a few months earlier.33

A volcano of hostile commentary soon followed on eGullet, with staff from Moto, Alinea, and many other top restaurants weighing in. Ultimately, a chastened Wickens removed several dishes from his menu, declaring that “I never tried to claim them as my own,” and apologized to Grant Achatz, the chef of Alinea.34 The eGullet fracas that led to this decision, however, is worth recounting because it reveals the emerging debate within the culinary community over exactly what sort of copying is permissible and what is not.

Less than an hour after a self-proclaimed “Australian chef” posted on eGullet that many dishes at Interlude appeared to have been copied directly from several innovative American restaurants, Wickens mounted a defense. Because the discussion on the site is so interesting and revealing, we quote it at length in its original (that is, often ungrammatical) form. First, Chef Wickens:

Thought i should post my reply. with regards to the prawn noodle dish this came about after getting hold of some ‘transglutiminaise’. Rather than just throwing it radomily into food, we had a recipe for the prawn noodles and started there, we then played around with recipes and new recipes to see what we could come up with. We now use it in completely new and original dishes. My trip to America and staging at Alinea gave me ideas and i saw new techniques that after cooking for over ten years in some pretty good restaurants i had seen before. (p.74) When i got back to my own kitchen of course we played around and saw how we could use these techniques in our own food. … We are always coming up with new and evolved dishes for our menus. I totally agree that Chefs Achatz [of Alinea], Cantu [of Moto] and Dufresne [of WD-50] are some of the top chefs in the world but I am sure they would agree that true originality comes from inspiration itself. If they do come up with a new technique as say someone like Ferron Adria [of El Bulli] has in the past. Of course people are going to imitate it and evolve it.

Many commentators on eGullet were highly critical of Wickens’s defense. One wrote:

Saying that replicating these dishes verbatim and then adding them to your menu (for profit, I might add) is the first step in an evolution would be like if I were to re-record Miles’s Davis’ “Kind of Blue” note for note, retitle it “Sort of Blue,” make no reference to the original composer, turn around and sell it for a profit, and later claim that it was just part of my evolution as a musician.

As this comment rightly points out, it is generally forbidden to remake a copyrighted work in a new form without first obtaining a license. It is not, however, impossible, especially if a court finds that the reworking is a parody of the original. Alice Randall famously rewrote Gone With The Wind from the point of view of a slave as The Wind Done Gone, and was slapped with a lawsuit in return. But she escaped when a federal appeals court ruled that her book was a parody and therefore “fair use.”* Similarly, the rap group 2 Live Crew likewise was sued for remaking Roy Orbison’s “Oh, Pretty Woman” song in 1989, but it too prevailed before the Supreme Court on the grounds that the remake was a parody.35 While these instances suggest that remakes are possible, it is a dicey strategy and defending oneself in court is expensive. In any event, because copyright does not apply to food, reworkings of others’ recipes are generally permitted. But what is legal is not necessarily ethical—at least in the eyes of many chefs.

(p.75) The tradition of staging in restaurants—in which a young chef works essentially as an intern under the tutelage of another chef—was widely recognized as part of the problem in the Wickens affair, because it created fertile terrain for this kind of behavior. As one commentator noted,

The tradition of welcoming stages into the kitchen is long held. The idea is that chefs can learn from one another, grow, and move the art forward. Chef Achatz has both benefited from this tradition, and now welcomes chefs from all over the world into Alinea’s kitchen.

But, several other participants in the debate pointed out, the stagiere system requires a set of rules about when and how to copy, since it is inherent in the staging tradition that the stagiere learn something useful to take with her. Unsurprisingly, then, the issue of attribution was central to many comments. For example:

I don’t believe the issue is that he copied the dishes or that he is unoriginal. The real issue is one of a lack of attribution. The apparent dishonesty is in claiming the creation of the dish for oneself. It seems that Chef Robin is indeed a fine technician and can run a fine kitchen. I very much doubt that we would be reading about this right now if he gave proper credit.

Alinea’s managing partner then weighed in, agreeing that from the perspective of the restaurant as a whole, the real issue was indeed one of attribution, not economics:

The stagiere tradition is long held, and by welcoming chefs into his kitchen at Alinea, Chef Achatz honors that tradition. The idea is to freely share information with others to promote the art and craft of cooking—and move cuisine forward. Visiting chefs learn technique, and then go home to apply these ideas to their own style of cuisine. The problem in this case is, for Alinea, not an economic one or a legal one. I don’t personally believe that we have anything to gain economically, nor do I think we have any sort of legal case. Even if we had one, we would not pursue it. What is at stake is another issue. A chef at Alinea said to me a few days ago, “The thing that bothers me the most, is that if a diner went to Interlude first and then dined at Alinea, that diner would think that we were copying him.” It would, however, be a loss for the industry if such a violation of (p.76) unwritten ethical guidelines endangered the “open source” nature of the industry and the stage tradition. I for one don’t believe it will—if anything, the freedom of information presented on the internet will tend to have the opposite effect.

While many commentators on L’affaire Wickens agreed that norms about attribution were central to the profession, others could not resist drawing comparisons with other art forms, as the preceding excerpts suggest. Several debated the similarities and differences with more conventional copyright disputes, such as in the music world. One thought Wickens’s copies were akin to the practice of sampling in songs, which is legally actionable in many circumstances. But another commentator thought that was not quite the right analogy:

The difference between sampling and this is that sampling is more like if I bought some food at Alinea and then took it to my own restaurant, reheated it, and sold it as part of one of my dishes. What’s happening here is more like George Harrison rewriting “He’s So Fine” as “My Sweet Lord” without licensing (which he somehow mostly got away with).*

Still another noted that the conversation was based on a set of named dishes and photographs, and that virtually no one outside of Melbourne had actually tasted these dishes. Who knew whether they tasted half as good?

Ultimately the eGullet Society editorialized on the issue, opining—accurately we think—that the debate over Robin Wickens’s menu had tackled a major frontier in the industry: “We believe the Interlude controversy is not a simple matter of a lone Australian restaurant copying a few dishes from halfway around the world. Rather, it’s one of the most significant issues facing the global culinary community today.” Many of the chefs we interviewed for this book had a similar view on the phenomenon of copying. But there was by no means unanimity among chefs on how big a problem copying was, or whether laws regulating the copying of food were a good—or workable—idea.

As David Chang, of the famed Momofuku empire, declared—echoing the views of many others we spoke with—“There is nothing new under the sun. Our job is just to make [existing dishes] better.” Josiah Citrin of Melisse (p.77) in Los Angeles was similarly dubious about the role of creativity: “we are all taking from the wheel and reinventing it,” he said. “The wheel goes around. It’s very hard to say what is a copy and what is not a copy.” As this suggests, many great chefs are uncomfortable with the notion of true culinary invention. In an interview given in another setting, Thomas Keller of the French Laundry identified the central issue of origin in describing his very famous—and widely copied—salmon cornets:

Look at the cornets for example. Where did it really come from? … Did I really invent it? Did I create it? Or was it an inspiration from an ice cream cone that I just looked at differently? Do I have the right to say that this is mine and nobody else’s? I don’t know. … What happens to my salmon cornet if they copyright it? Does someone have to get my permission to use it? Does somebody have to pay me royalties? … I kind of have a problem with that. I really do.36

Charlie Trotter likewise said that “I honestly don’t care [about copying]. It doesn’t bother me because we did [it] first [. …] It’s our point of view, and I think people know what’s up.”37

Even those chefs who are more positive about the idea of copyrighting food were generally skeptical that it is workable in practice. It is “too simple to change a few ingredients in a dish,” said Joachim Splichal of the Patina group.38 Laurent Torondel of the Bistro Laurent Torondel empire likewise thought copyright could not work in culinary world. (And in Torondel’s BLT restaurants, the complimentary—and addictive—popovers are even served with the recipe helpfully attached.) Tourondel echoed the views of several chefs in saying that while creativity was very important, “execution is everything.”39

Where this debate will end up is anyone’s guess. Perhaps the law of intellectual property will inevitably embrace the creations of fine chefs. Maybe there will be an amendment of the copyright statute to embrace recipes and built food—as has been done in the past for buildings and boat hulls. Or maybe through creative lawyering and the massaging of existing legal doctrine, chefs will obtain a bit more protection over their creations and recipes, as chefs such as Homaro Cantu are attempting to do. Such prognosticating is, however, not our primary interest in this book. We are instead interested in what we can learn from the creativity of the culinary world. How has (p.78) innovation thrived—indeed, arguably accelerated—absent meaningful legal protection for new creations? And what lessons can be drawn for other innovative industries?

Why Are Chefs So Creative?

Like many areas we explore in this book, culinary creativity has been largely ignored by those who study innovation.40 The challenge is to understand how creativity survives in the face of copying, and to map out the mechanisms that support this process. As with the fashion designers we met in the previous chapter, creativity among chefs seems to defy the notion that imitation kills innovation. Despite extensive copying, chefs continue to create at a high rate. Next we consider several arguments that together may help explain the unusual relationship between cuisine and copying.

Norms

One possible explanation for why copying in the culinary world appears to have few bad effects is that copying is actually less prevalent and less blatant than one might expect. Yes, it is generally legal to copy. But despite the weakness of legal controls, there is not a copying free-for-all. The relevant restraints are not generated by law, however, but by extra-legal forces: high-end chefs, at least in some places, self-police the most egregious copying via social norms. The result is some copying, but not an overwhelming amount. And the copying that is permitted by these norms is generally not very harmful. Legal scholar Robert Ellickson famously wrote about “order without law” among the cattle ranchers of Shasta County, California.41 Perhaps the same is true among high end chefs.

The best evidence for chefs’ use of social norms to police copying comes from a fascinating study of elite French chefs by two economists, Emanuelle Fauchart and Eric von Hippel.42 Fauchart and von Hippel studied French chefs who worked in Michelin starred and “forked” restaurants—that is, those restaurants especially renowned for their food.* These chefs were all (p.79) very good and well regarded; some were famous beyond the confines of the culinary world. Fauchart and von Hippel conducted a number of interviews; they also sent out a detailed questionnaire asking about the prevalence of copying among French chefs, and about likely responses when copying comes to light. The researchers concluded that an effective system of social norms operates to restrain and police copying among the elite chefs of Paris. They identified three main norms that are in play in the world of French haute cuisine:

  1. 1. Accomplished chefs expect that other chefs will not copy their recipes exactly.

  2. 2. Accomplished chefs expect that chefs to whom they reveal information will not pass that information on to others without permission.

  3. 3. Accomplished chefs expect that chefs to whom they reveal information will acknowledge them as a source.

These three norms are fairly simple. The first does not proscribe any and all copying, just copying which is “exact.” As we discuss further, “exactness” in the culinary context is hard to define, and indeed Fauchart and von Hippel note that the boundary between an exact copy and a permissible reinterpretation can be blurry. But it is easy to see a link here to the debate in fashion over point-by-point copies versus mere homage.

The second norm shaping the behavior of French chefs essentially mimics the law of trade secrecy. The creator can reveal information to whom she likes, but there is an understanding that the receiver of the information will not spread it further without the approval of the creator. Moreover, the economists found that in many instances recipes and techniques were traded with the expectation that the recipient would reciprocate with something useful of her own—an arrangement sometimes dubbed “informal information trading.”43 This I-scratch-your-back, you-scratch-mine system helps promote both innovation and collective learning among the participants.

The third norm, that of attribution, is sometimes enforced by chefs through public acts against rule breakers: the wronged chef may write a public letter identifying herself as the true creator of the dish, or may simply let others know informally that she, and not someone else, is the originator. Often action by famous chefs is unnecessary since their work is well known (p.80) and copies that transgress the rules are easily recognized by other chefs. The threat of public exposure is enough in most instances to deter copying.

Together, Fauchart and von Hippel argue, these three simple norms provide an important bulwark against blatant copying. They deter most uncredited appropriation of signature dishes, and they ensure that at least some of the rewards for innovation go to the putative originators. And while the economists’ study only establishes that these norms operate among French chefs, similar norms may well exist more widely.

Formal codes of professional ethics within the industry support, or at least are consistent with, these norms. The Code of Ethics of the International Association of Culinary Professionals, for instance, states that a chef should credit a source for a recipe if only minor changes are made. If more major changes are made, one should indicate that the recipe is “based on” or “adapted from” another.44 And whether or not customers have read the Code of Ethics, as the Interlude saga shows, many intuit or appreciate the basic ideas of attribution and inspiration (as opposed to total imitation) and also work to police those norms through food blogs, outlets like Chowhound, eGullet, and Eater, and word of mouth.

Legal scholar Christopher Buccafusco has undertaken another study examining the norms of elite American chefs. He concludes that at least some American chefs think much the same way as their Parisian peers—a viewpoint that the pillorying of Robin Wickens amply illustrates. Inspiration and homage are fine, or at least accepted, but attribution is crucial, and blatant and exact copying without attribution is bad. Our own conversations with chefs working on this side of the Atlantic broadly reflected this position as well. But not all chefs agreed that norms existed, or that they governed behavior effectively, or that they were as well defined and widely shared as those among the French chefs.

Again, social norms grounded in attribution and confidentiality certainly do not block all imitation. But they may provide enough of a check on copying to maintain adequate incentives to continue to create and to dampen any initiative to alter the existing legal rules. As we’ve seen, our culinary culture continues to create many fine and innovative dishes. Something explains the remarkable creativity of contemporary chefs; we suspect that norms play some role.

There is a broader lesson here. Social norms that operate alongside or in place of legal rules have long attracted interest from scholars. If social norms (p.81) are powerful enough, they can achieve much the same outcome that legal regulation would—they keep honest people honest, even if they fail to stop the determined violator, and they express the rules of a given community about what is allowed and what is not. Norms can probably achieve this at a lower cost to society than legal rules do, though measuring this is very hard to do.

Is this the case in the world of cuisine? Since a copyright system for recipes or “built food” is necessarily conjectural—as far we know, no nation has implemented such a system*—we cannot directly compare the relative efficacy or efficiency of norms versus laws. But we do know a little bit about one side of the ledger. Informal discussions with chefs support the view that a legal prohibition on copying would be difficult to create and perhaps ineffective in practice. A 2006 Food & Wine magazine story on copying in the kitchen, for example, quoted Grant Achatz of Alinea restaurant, whose cuisine is often emulated by others (such as by the ill-fated Robin Wickens). Achatz declared flatly that “chefs won’t use [a copyright system.] Can you imagine Thomas Keller calling me and saying, ‘Grant, I need to license your Black Truffle Explosion so I can put that on my menu’?”45 Perhaps Achatz is unusual in his views, but our discussions with chefs, and those in other studies, suggest that he is not. Most chefs do not seem to want a legal regime against copying.

But how effective are social norms at policing copying? A common critique of norm-based approaches to social regulation is that they lack effective enforcement. In Fauchart and von Hippel’s study, enforcement of the norms was largely accomplished via informal retaliation by other chefs. As one interviewee explained, “If another chef copies a recipe exactly we are very furious; we will not talk to this chef anymore, and we won’t communicate information to him in the future.”46 This not merely a loss of reputation, (p.82) in other words; the sanction is also denial of access to other innovations, and some degree of social shunning to boot. For the very best chefs, who by definition are a small group, this is likely to be an effective strategy. The more a chef sees herself as a member of a profession, with its own standards and mores of behavior, the more likely it is that norms enforced by social sanction and reputational penalty will effectively police her behavior.

As this suggests, however, there are obvious limitations to norm-based systems of control. Norms are generally thought to become less effective as the size of the relevant group grows. As chefdom rapidly becomes more global—think Britain’s Gordon Ramsay opening a restaurant in Los Angeles, or France’s Joel Robuchon (among many others) in Las Vegas—the group grows larger, social ties grow weaker, and the effectiveness of norms is very likely to decline. Moreover, the tradition of staging in fine kitchens, combined with a more international market for talent, creates significant scope for those tempted to knock off existing dishes—especially when they do so in faraway places where they may not be noticed (at first) or which are distant enough that the pain of social pressure and lost reputation are simply not sufficient to deter them from close copying. Indeed, this may have been Robin Wickens’s story.

Consider, however, whether far-away copying is a threat to the creative incentives of most chefs. The restaurant business is intensely local. With the exception of a small class of wealthy super-foodies, people rarely travel far simply to eat in a restaurant. They eat near their home, or near wherever they find themselves when traveling. For this reason, a restaurant in Paris is competing mostly with other restaurants in Paris. As a result, the fortunes of a Parisian chef will often be unaffected by copying elsewhere. Indeed, as we discuss further later in this book, the copying may well enhance her reputation, stamping her as a pioneer worthy of imitation—and spurring food fans to seek out the original.

Consider also a principal point illustrated by the Wickens affair: the power of new technologies to enhance the norms-based policing of copying. The existence of the eGullet community provided a communications platform for word of copying to spread and for the community’s norms to be expressed. Communication is vital to the functioning of norms—to be persuasive, norms must be articulated often, and widely, among the relevant community. And there must be a way that accusations of violations can spread—the threat of public exposure is the stick that the norms system (p.83) relies upon for its power. Web sites like eGullet bolster norms by making detection more likely, and public shaming more pervasive and (importantly) permanent. The Internet never forgets.

As we will discuss in the next chapter, we see some of the same dynamics at work in the world of stand-up comedians. In comedy as in cuisine, technology can be a powerful tool for originators, one that allows them—or their fans—to discover copyists in far-flung and unusual places. We see more and more detection of copying by fans in the food world. Today, passionate diners routinely post digital photographs of every course in a meal on their blogs, often accompanied by detailed critiques. In this world it is hard for more blatant copies to go unnoticed. This is especially true since the skill involved in recreating many fine dishes is in short supply, and hence these recreations, or derivatives, are most likely to be found in reasonably ambitious and expensive restaurants. It certainly did not take long for the discussion on eGullet to lead to charges of theft and plagiarism—though the conversation revealed significant uncertainty in the culinary community over what was and was not permissible.

In short, social norms are no doubt important checks on certain forms of copying, at least in some contexts and among some communities. But there is little reason to think norms alone explain the continuingly high level of creativity in the culinary world. There is still a substantial amount of copying taking place among chefs; the key question is why this copying does not destroy the incentive to innovate in the first place. An additional constraining force, we believe, lies in the nature of a copy.

Analog versus Digital, Product versus Performance

American copyright law does not address itself only to perfect or exact copies. Rather, it is illegal to take more than an insubstantial amount of creative expression from a previous work. In copyright argot this rule is referred to as “substantial similarity”—but the word “substantial” has been construed by the courts very expansively. Many copies that ape only a small portion of someone else’s copyrighted work have been declared illegal. In fact, in one case, a federal appeals court held that a song violated copyright law for sampling just three notes of another composition.47

(p.84) In cases like that, where the copying is far from exact, the infringing work is unlikely to serve as any kind of substitute for the original. In other words, the two songs are not really competing in the market. As a result, the case for harm to the originator’s incentives to create is much weaker, overall, than in instances where copying is exact. Digital goods, like songs and movies, lend themselves to essentially perfect copies. For these goods the copy really is the equal of the original for almost any plausible purpose.

In cuisine, almost no version of a given dish is indistinguishable from another. The exact ingredients may vary. Or their quality may change from season to season. The composition may be tweaked subtly, and the execution will surely not be the same each time. Indeed, because in a fine restaurant each dish served is in essence a hand-crafted item, one that is purpose-built for each customer, even versions by the same chef on the same evening will vary. And of course in many high profile restaurants the ostensible chef and creator is not necessarily behind the stove every evening, or even any evening. As noted chef Bobby Flay once quipped, “For a celebrity chef, cooking means handing someone a recipe.”48 Even for noncelebrity chefs, in a kitchen of any size there are many chefs, and often the executive chef is merely supervising the process.

As a result, even in the finest restaurants the original version of a dish is subject to change. Variation is inherent in this system. Food, in short, is more like an analog technology, in which copying is never perfect. Think of an LP copied to a cassette tape—analog copying technologies like these generate copies in which quality degrades in an obvious way. Copies of famous recipes are like cassettes—they can be good, but they are never perfect (though unlike a cassette tape, the copy might be better). This is very different from the case of a digital technology, like an mp3 music file, which can be copied perfectly. For this reason, the norm against perfect copying that Fauchart and von Hippel identify among French chefs is, in a sense, enforced by the nature of cooking itself. Because perfect copies are almost impossible in cuisine, their values are also not the same as that of the original. Again, as Laurent Torondel told us, “execution is everything.”

This point may seem obvious, but it is significant because it helps explain the generally forgiving nature of both legal rules and social norms against culinary copying. If ostensible copies are not true copies, are they really competing in the same marketplace? Consumers who buy and eat the “copy” are in many respects enjoying something distinct from the original; perhaps (p.85) better, perhaps worse, but certainly different. Those differences can give them something to argue over: whose version of gargouillou is best—Michel Bras’ or one of the many imitators? Differentiation can defang copies, and indeed can even make the copy a form of advertisement for the original: if you love the molten chocolate cake at Local Bistro X, don’t you want to try Jean-George Vongerichten’s signature version? Looked at this way, being copied is a strong signal of success, one that can reinforce a valuable reputation as an innovator.

Moreover, the entire experience associated with consuming a given dish varies tremendously, and from a consumer standpoint the overall experience is what is being purchased. It may be possible to copy a recipe faithfully, but it is very rarely possible to copy the experience of consuming it.

Thomas Keller’s famed Oysters and Pearls, for example, is a great creation. The recipe itself can be reproduced. Yet the experience of eating it at Keller’s famous Yountville, California, restaurant, the French Laundry, cannot be. Those who consume Keller’s version are participating in a larger event, which features exceptional service, a special ambience, and the pleasure of a first-class night out. Together with the expertly prepared food, these hard-to-copy elements of the French Laundry experience lead many diners to desperately call the reservation line months in advance. (And a Keller meal is not cheap: as of April 2012, the prix fixe menu at the French Laundry began at $270 and escalated rapidly from there.) Finding the same dish in a local haunt, no matter how skillfully reproduced, is not a true substitute.

In a way, the same might be said about digital copies: owning a pirated music file is not the same as owning the actual, legal file. With the legal version you get a virus-free file that is what it claims to be. The pirated version may fail or infect your computer. Compared with a digital good like a music download, however, the differences between original and copy that arise for a complex product like a plate of fine food are far greater.

Moreover, the central item created by a chef—food—cannot be easily disentangled from the “packaging” of the restaurant in the way that songs can be separated out and sold, or traded, as discrete digital files. (And the importance of “packaging” is one reason trade dress disputes among restaurants crop up.) At many top restaurants you cannot order home delivery of a meal, or for that matter even order takeout. The dish you crave must be (p.86) purchased as part of a larger, multifaceted transaction, replete with various courses, beverages, and side dishes. There are ambience, service, energy, and other intangibles in the mix. All of these factors work together. Copying one aspect—the main dish—may be easy. Copying the experience in full is virtually impossible. The experience is less one of buying a product and more that of enjoying a performance.

Consequently, the mere fact that a recipe is copied does not necessarily threaten the originator. And as we suggested a moment ago, the copy might even serve as an advertisement of sorts, trumpeting the value and specialness of the original. In this way, copying may serve as a signal of quality and a building block of something else that is often valuable: reputation.

Reputation

There are many reasons for chefs to ignore or even welcome copying of their creations. One is the desire to acquire or maintain a reputation among other chefs for bold and unusual cooking. When a great or particularly inventive dish is pioneered, its creator frequently becomes well known and respected in the community of chefs, restaurateurs, critics, and writers. For many chefs, that acclaim is a powerful inducement to create.

Indeed, in their study of French chefs, Fauchart and von Hippel note that the leading chefs in France will sometimes openly reveal the secrets and methods behind their creations in a public forum. According to their interviews, these chefs expect a number of benefits from disclosure. Among them are that disclosure will increase their personal reputation; generate publicity for their restaurant; inform potential patrons about what is offered in their restaurant; enable them to claim the “innovation space” before another chef gets a related idea; be an enjoyable experience for them; and be an opportunity to promote regional products.49

Whether chefs’ expectations about the positive effects of sharing are likely to pan out in every case is hard to say. But these are certainly plausible rationales for revealing things that could otherwise be kept as secrets, and they help explain the relatively open culture of innovation that exists among many chefs.

Of course, a chef’s reputation can grow even if he or she doesn’t publicly reveal the secrets of a hot new dish. Great dishes get talked about; this means (p.87) their creators get talked about too. And because chefs generally hew to a norm of attribution, most everyone who matters will know who the creator is. Identifying creators is a necessary step in the development of reputations for creativity. But even in the absence of a strong attribution norm, a reputation for innovation can develop among peers. It is often easy for insiders to recognize a copied dish, and the originator’s peer reputation may grow even when copyists fail to acknowledge, or try to hide, the provenance of their creations.

Chefs care about their reputation among peers, but they also care about their broader public reputation. In fact, today public renown can be more valuable to a chef than respect from insiders. In recent years leading chefs have increasingly become celebrities; some argue that “being a chef now is like being a rock star.”50 In 2006 the Food Network—an enormously popular channel which on many nights has more viewers than any cable news outlet51—even debuted a show called Chefography, devoted to biographies of famous chefs and food personalities.52 Much of this intense interest in chefs is created and sustained by other television shows devoted to cooking, ranging from competition shows such as Iron Chef and Top Chef to how-to shows such as Secrets of a Restaurant Chef and 30 Minute Meals.

Feeding all of this is a mass culture of food appreciation that is increasingly about consumption of creative food rather than cooking. As food writer Michael Pollan has noted, Americans have a waning interest in actually cooking their own meals. “The historical drift of cooking programs—from a genuine interest in producing food yourself to the spectacle of merely consuming it—surely owes a lot to the decline of cooking in our culture.”53 Indeed, the competition-style cooking shows that air on television are far more popular than the how-to cooking shows and, as a result, are much more likely to air in primetime. Consumers of shows like Top Chef may not cook much themselves. As avid fans, however, they increasingly are educated about gustatory detail and exotica. Learned connoisseurs of eating are in turn more likely to prize creativity when they go out.

In short, wider public interest in the work of chefs is high, and as a result garnering public as well as peer attention is increasingly valuable to chefs. Attention is the route to fame and riches: a lucrative cookbook contract; reviews from critics; a profile in one of the many food-oriented national magazines. (p.88) Most valuably, public attention is the critical entrée to television. To be sure, this brass ring is grasped only by a precious few. But like many markets characterized by winner-take-all dynamics, the existence of this prize is a powerful inducement to innovate. And having one’s creations widely copied is a testament to one’s influence and creative power. This not only helps explain the equanimity with which many chefs greet copying. It also helps explain the otherwise perplexing level of desire to produce highly risky, innovative food, which may not turn out to be all that tasty and, more important, may not sell well.

A Wall Street Journal article captured these complex incentives well. After noting the work of daring chefs such as Richard Blais of Atlanta—whose creations include such non-crowd-pleasers as tableside-prepared mustard ice cream and raw-lamb meatballs—the Journal opined,

The goal of this edgy fare is not just to shock; these chefs want to create new food that is delicious to eat. But it’s aimed at an audience outside the restaurant, too. The rise of food media—from television’s “Iron Chef” and cooking magazines to a small army of self-styled epicures writing blogs on the Internet—means that a couple of offbeat dishes can win attention that mastery of French culinary technique can’t buy. Restaurants … may flame out, but the chef becomes a celebrity. … It’s no wonder that more young chefs are modeling themselves after stars such as Ferran Adria, the guru of avant-garde cuisine in Spain, and thinking of themselves as artists rather than artisans.54

Whether this dynamic is producing successful restaurants is a separate question: the public’s taste for creativity on their dinner plate may be limited. (Indeed, Richard Blais’s first restaurant flamed out quickly.)* But it unquestionably is producing substantial innovation. In a field where innovation for centuries was seen as incremental at best and undesirable at worst, this is a noteworthy development.

To summarize the argument so far, we have explored three reasons that chefs continue to create even though their central creative work—their (p.89) recipes and the food they cook from them—can be freely and legally copied:

  • Because widespread copying can burnish a chef’s reputation for creativity, which is increasingly valued by diners and the broader public;

  • Because copies in the culinary world are necessarily reinterpretations, not exact copies, and hence do not readily compete with originals and may even serve as advertisements for originals;

  • And because social norms among skilled chefs restrain the most egregious forms of copying and thereby blunt its impact.

Together, these arguments help to explain why the widespread copying of new dishes is not viewed as much of a threat in the culinary world. Copying in the kitchen has both positive and negative effects, and the balance between the two varies from case to case and chef to chef. But the key point is simply that copying does not inevitably kill creativity, as the conventional wisdom about copyright law assumes. Warren Buffet (supposedly) once said that his investment approach works in practice, but not in theory. The situation here is not so different. We know that copying does not kill creativity among chefs because chefs remain enormously creative even though the rules against copying barely apply to them. But until now, there have been few attempts to explain why, or how, this is possible.

The Open Kitchen

A deeper take on how chefs continue to create in the face of copying begins with a more frontal challenge to the premise that copying is anathema to creativity. Perhaps copying is not, on balance, much of a threat to innovation, but instead a valuable tool to achieve it. To consider this, step back to the basic justification for regulations on copying. As we explained at the outset of this book, monopoly rights in creations are said to be the price we pay to ensure that creations keep coming. As the Supreme Court declared in a famous music case from the 1970s, copyright exists “to stimulate artistic creativity for the general public good.”55 The underlying policy behind these rules is forward looking and results oriented.

This does not, however, necessarily entail a focus on preventing copying. The real goal is incentivizing innovation; stopping copying is just a means to (p.90) that end. If copying does not diminish innovation, it is not a problem in itself. The standard view considers it self-evident that copying is harmful to innovation. The worlds of fashion and food, however, give us substantial reason to doubt that copying is inevitably harmful.

There are other, similar, examples, to which we will soon turn. Probably the best known is open-source software—software designed collaboratively by large groups of (sometimes otherwise unconnected) individuals. Software and food are very different, and we will talk more about open source in the Conclusion to this book. But some of the principles underlying open-source software also have a surprising resonance in cuisine. Chefs often say that culinary change is largely the product not of large inventive leaps, but of collective, incremental processes of innovation. If so, spreading and sharing innovative ideas is essential to creating them. Legal prohibitions on copying may indeed incentivize some creations, as the traditional view of copyright assumes. But by impeding sharing, these restrictions threaten to squelch other creations. That is the big idea behind open source: innovation is better served through open collaboration and unimpeded propagation and use than via enforcement of property rights.

This dynamic might also explain why creativity in the kitchen continues to flourish in the face of extensive copying. In short, perhaps copying is not the problem, but instead is part of the solution. Freedom to copy enables chefs to learn from one another, and thereby to keep incrementally improving their offerings.

Indeed, in their “Statement on the ‘New Cookery,’” famously inventive chefs Ferran Adria, Heston Blumenthal, and Thomas Keller declared that “culinary traditions are collective, cumulative inventions, a heritage created by hundreds of generations of cooks.”56 If they are correct, the application of standard rules of copyright to dishes and recipes would create more problems than it might solve. Not only would chefs have legal costs to bear—protecting their erstwhile innovations while defending themselves against (perhaps frivolous) claims of copying. They would also face new barriers to their engagement in the centuries-old “collective, cumulative” process that Adria, Keller, and Blumenthal salute.

That process has successfully produced a world of great food. And it is hard to see how food could be much more creative than it already is. Like fashion design, culinary creation is not a problem to be fixed. It is instead a window on an important and overlooked understanding of innovation.

(p.91) Conclusion: The Creative Cocktail, or Why Drinks May Tell Us More about Dinner

Step down into Crif Dogs, a tiny, unassuming hot dog spot on busy St. Mark’s Place in New York City, and you may notice—if it is after 7 PM or so—a small knot of slightly anxious people clustered by a vintage pay phone on the wall to your left. If you pick up the phone, a woman will answer and a hidden opening will appear. Beyond the opening you may glimpse the dim confines of the modern-day speakeasy known as PDT (short for “Please Don’t Tell”). If you don’t have a reservation you probably will have to wait an hour or more for entrance—the hostess will even take your number and call you when your seat is ready. But once inside you’ll be glad you did. PDT serves some of the best cocktails in New York, a famously besotted city where serious bars compete to attract serious drinkers.

Part of PDT’s appeal is obviously its retro-speakeasy vibe and its dark interior filled with stuffed squirrels and other bizarre decor.* But equally important are the excellent cocktails served there. Like a lot of new bars in cities such as New York, Los Angeles, Chicago, and San Francisco, PDT serves impeccably made and innovative drinks. PDT and its brethren combine two important trends in 21st-century bar culture: secrecy and creativity.

The secrecy part—the unmarked doors, the fake phones—harks back to the Prohibition era, but without the risk of arrest. The creativity part is obviously what interests us in this book. Bars like PDT (and today there are many) certainly serve their share of simple martinis and Manhattans. But they also offer some pretty creative cocktails, many of which feature unusual and handcrafted bitters, carefully sourced and shaped ice and freshly infused elixirs of various kinds. Put together in unusual ways, the fine ingredients and meticulous mixing make for excellent and interesting drinking.

Indeed, like cuisine, it is fair to say we are living in a golden age of cocktails. And as a result, many of the same questions that we raised in this chapter about cuisine apply to cocktails. Like great dishes, great drinks can be very innovative—more so than many people may realize. Consider a few examples. (p.92) In Los Angeles, the Tar Pit serves the Prude’s Demise, made with overproof rum, kumquats, kaffir lime leaves, black pepper agave syrup, velvet falernum (a kind of tropical flavoring), and lime juice. Similarly, Death & Co. in New York serves a Cortado: two kinds of rum, coffee-bean infused vermouth, white crème de cacao, demarara sugar, angostura bitters, and mole bitters. Aviary in Chicago makes a Hot Chocolate with tequila and Fernet Branca that involves smoking milk over a burning cigar. At the now-closed Tailor in New York City, cocktail empresario Eben Freeman offered “solid” cocktails, including a Ramos Gin Fizz marshmallow and “White Russian Breakfast Cereal”—cereal soaked in Kahlua, half and half, and vodka, then dehydrated and served in a small bowl.*

Even in lesser known drinking meccas, like Charlottesville, Virginia, the business of high-end cocktails is booming. Charlottesville’s Blue Light Grill makes many of its own ingredients, including house-made tonic. One drink recently on offer at the Blue Light featured a mix of bourbon and sugar syrup painstakingly infused with the flavor of expensive tobacco. The goal, according to the bartender-innovator, was to capture the taste of whisky and cigarettes without the need to light up. Not every innovative cocktail is a success—some, indeed, are quite difficult to swallow. Yet, in their creativity and care these drinks push the envelope well beyond the world of the frozen margarita or Long Island iced tea.

Like great and inventive dishes, great and inventive drinks can and often are copied by others, sometimes as overt homage but often simply because they are great, and people want to drink them. For some, creative cocktails are the chief draw not only in bars but also in restaurants. Indeed, as the Pulitzer prize–winning food critic Jonathan Gold argued with regard to Los Angeles, “In some of the best restaurants in town now, the bartender may be as well-known as the chef and even more creative.”57 Molecular mixology and molecular gastronomy often blur. At Bazaar, the celebrated Los Angeles restaurant of Spanish chef Jose Andres, his dirty martinis are served with a spherified olive—olive oil and olive essence in a gel-like robe—and his mojitos are poured over a kind of cotton candy. The afore-mentioned Aviary, (p.93) a spinoff from the acclaimed Alinea restaurant in Chicago, even dispenses with a bar, instead making drinks in an open kitchen.

Can creative cocktails be protected from copying? Recipes, as we discussed, can be freely copied. Nonetheless, some are trying to use other legal rules to protect their liquid creations. In 2010, Painkiller, a tiki bar in New York City, was threatened with a cease and desist letter by the makers of Pusser’s rum, who claimed a trademark in the Painkiller cocktail (dark rum, orange juice, pineapple juice, and coconut cream, topped with nutmeg).58 Gosling’s Black Seal rum, based in Bermuda, likewise claims a trademark in the Dark ‘n Stormy, a simple mix of rum and ginger beer.

“We defend that trademark vigorously, which is a very time-consuming and expensive thing,” said Malcolm Gosling Jr., whose family owns Gosling’s rum. “That’s a valuable asset that we need to protect.” Not all see it the same way, as an article in the New York Times explained,

But a trademark-protected drink—especially one as storied and neo-classically cool as a Dark ‘n’ Stormy—seems anathema to the current bartending practice of putting creative individual spins on time-tested drinks. Drinks like this one undergo something like a wiki process: a tweak here, a substitution there, and the drink is reimagined.59

For the most part, bartenders tend not to keep their inventions secret. Like chefs, they often freely pass their recipes and techniques on to others. Still, there is some resistance to the culture of copying that exists in the high-end cocktail world. Eben Freeman, the originator of the solid cocktail at Tailor, also claims creation over a technique called “fat-washing,” which involves mixing a melted fat with a spirit of some kind and then chilling it, so the fat rises to the top and can be skimmed off, leaving only the flavor.60 “In no other creative business can you so easily identify money attached to your creative property,” said Freeman in a recent interview. “There is an implied commerce to our intellectual property. Yet we have less protection than anyone else.”61 However hyperbolic this last claim, it is true that copying is common in the mixology world. Yet as Freeman himself illustrates, there is substantial innovation taking place.

In short, cocktails look a lot like cuisine: creativity absent copyright, coupled to vibrant competition. And many of the same factors that we argue shape innovation in the kitchen apply across the restaurant in the bar.

(p.94) First, cocktails are hand-crafted, often right in the front of the customer, and technique and ingredients matter substantially. So like food, an individual drink is not reliably the same from maker to maker, and may even vary at the same bar in the same night. This is especially true of today’s often rococo cocktail creations, which demand precision and often arcane inputs.

Second, cocktails, even more than cuisine, are a performance as much as a product. A bar, fundamentally, is at least as much about atmosphere as it is about actual drinking. So the copyist of a particular cocktail isn’t necessarily going to compete with the originator. Of course, if the bar itself were copied—the entire look and feel of the place—the copyist would be vulnerable to a trade dress lawsuit, just as one restaurant cannot copy the entire look and feel of another.

Third, bartenders, Eben Freeman notwithstanding, tend to believe in sharing as an ethos—perhaps even more so than chefs. Take the crucial issue of technique. For years, well before the classic cocktail craze took off in the United States, Japanese bartenders had been meticulously recreating American drinks. One of the most famous is Kazuo Ueda, who invented the “Hard Shake” method of mixing drinks. Though it appears to have been taken down now, until recently Ueda operated a Web site called Cocktail Academy, where he explained the Hard Shake as well as his overall philo­sophy of drink making (and philosophy is not as much of a stretch as it may seem—the site included entries such as “The Way as an Art of Cocktail,” referencing the classic Japanese Cha-do, or “Way of Tea”).

Ueda’s willingness to share the Hard Shake technique* certainly doesn’t prove that bartenders are an especially collaborative group. But taken in context, it is consistent with virtually everything else we found about cocktail (and culinary) culture. Openness, sharing, and innovation are generally seen as going hand in hand, and not as inevitable antagonists.

Kazuo Ueda also underscores another area of tangency between bartenders and chefs. Like celebrity chefs, who have many, and growing, options to make money outside of the kitchen, celebrity bartenders can work as consultants and even teach others in special bartending academies. (p.95) Ueda himself came to New York City in 2010 for a special appearance in which he explained (through an interpreter) his approach to bartending and of course taught the assembled guests his famed Hard Shake. Tickets were $675. As this suggests, an ethos of openness and sharing doesn’t preclude making some money along the way. (p.96)

Notes:

(*) Not to mention the venerable Grand Central Oyster Bar, which opened its doors (and raw bar) to shellfish lovers in 1913. Perhaps worth noting too is that in a recent visit to Pearl Oyster Bar, a waiter, asked to describe the Caesar salad at issue in the suit, said it was “a normal Caesar, nothing different about it.”

(*) LaDou went on to develop the menu for the very successful California Pizza Kitchen, as well as start his own restaurant, Caioti Pizza Café. In a bizarre twist Caioti became most famous not for its pizza but for a different innovation: its salad, known as “The THE Salad” (with a copyright symbol appended) which is alleged to have supposedly labor-inducing qualities and is often consumed by past-due pregnant women from all over Los Angeles.

(*) New York TimesMark Bittman, “The Minimalist,” New York Times, April 14, 2004.

(*) A fascinating case is that of “food artist” Jennifer Rubell, whose shows, or installations, include paintings that pour cocktails out of spigots and “honey paintings” created by 50,000 bees. Art, or dinner? The first is copyrightable, the second not. Rubell also worked for a time as the “vegetable butcher” in Mario Batali’s Eataly store in Manhattan.

(*) The one-time Frugal Gourmet, famous to many in the 1980s and ’90s for his popular televised cooking show. (And presciently invoked by the Beastie Boys on their 1992 Check Your Head album: “I’ve got more spice than the Frugal Gourmet.”) After sexual assault charges were raised against him by two of his teenage male assistant chefs, Smith and his show disappeared from view.

(*) Trademarks sometimes show up in the cooking world in ways you wouldn’t expect. For example, Food Network star chef Emeril Lagasse’s stock phrase “Kick it up a notch!” is actually a trademark owned by an oil and gas company from Sugar Land, Texas.

(*) Those well versed in cuisine would have noticed the review mentioned a dish strikingly similar to one made famous in the United States by Daniel Boulud (though some discern an even earlier provenance in France): “A piece of mulloway—the farmed variety from the same South Australian producers who send us the Hiramasa Kingfish—is roasted with crisp potato ‘scales,’ sat upon creamed leek and finished with a tart, fruity Barolo sauce with just the right level of acid for the fish.” Like many other noteworthy gustatory creations, this one is now found at many fine restaurants around the world.

(*) The court in The Wind Done Gone case seemed to (perhaps intentionally) misread the book—the Randall work was more frontal assault on the morality of Gone With the Wind than any sort of parody. In any event, the court’s fair use ruling led to a settlement favorable to Randall, under which Randall’s publisher made a donation to Morehouse College, a historically black college in Georgia. The book’s cover has a large red circle on it that reads “The Unauthorized Parody.”

(*) In fact, Harrison was found liable for copyright infringement in Bright Tunes v. Harrisongs Music, 420 F. Supp. 177 (S.D.N.Y. 1976).

(*) In the fabled and influential (at least in France) Michelin Guide, forks are given to “good gastronomic restaurants” that are generally good values. Stars, however, are the true coin of the realm, which, Fauchart and von Hippel note, chefs have likened to “winning an Olympic medal.”

(*) The distant past provides an interesting counterexample. The first recorded evidence we have of an IP system comes from third-century AD Greek author Athenaeus, who, quoting an earlier writer, reports that in the sixth century BC, the inhabitants of Sybaris, the largest of the ancient Greek city-states, enforced short-term exclusivity in recipes:

If any caterer or cook invented a dish of his own which was especially choice, it was his privilege that no one else but the inventor himself should adopt the use of it before the lapse of a year, in order that the first man to invent a dish might possess the right of manufacture during that period, so as to encourage others to excel in eager competition with similar inventions.

Athenaeus, The Deipnosophists, Vol. 5, Charles Burton Gulick, trans. (Harvard University Press, 1927), 348–49.

(*) The same might be said about contemporary art: innovation doesn’t sell on a mass scale or even a moderate one. Thomas Kinkade is surely America’s favorite (recently deceased) artist; his work is said to hang in 5% of American homes. But the self-proclaimed “Painter of Light” (dubbed “the King of Kitsch” by the British newspaper The Independent) never has been classed among the avant-garde.

(*) And, in a stroke of genius born of proximity, you can order Crif Dogs and waffle fries from inside PDT, served to you thru an even-tinier trap door in the wall behind the bar. Some of the dogs served here are named after famous chefs—including regular patron David Chang of Momofuku, whose signature dog is covered in a kimchi relish.

(*) We can’t leave out the notorious McNuggetini, made with vanilla vodka and a McDonald’s chocolate milkshake, with the glass rim coated in barbecue sauce and a Chicken McNugget garnish slapped on. For an instructional video (watched nearly 150,000 times), see www.youtube.com/watch?v=iX8Hzxu7C1g. We draw the line at the Ham Daiquiri, however.

(*) Interestingly, Eben Freeman, despite his dissatisfaction with the limited IP protection available for cocktails, has a video in which he demonstrates the Hard Shake, as taught to him by a disciple of Ueda. http://videos.nymag.com/video/Eben-Freemans-Hard-Shake#c=XR4JYD0V7W83M87K&t=Eben%20Freeman%27s%20Hard%20Shake.

(1.) Complaint at 1:3, Powerful Katinka, Inc. v. McFarland, 2007 WL 2064059 (S.D.N.Y. 2007). This was not the first dust-up between Charles and a former co-worker; Mary’s Fish Camp, a little further uptown, engendered a similar dispute a few years earlier.

(2.) Pete Wells, “Chef Sues over Intellectual Property (the Menu),” New York Times, June 27, 2007.

(p.244) (3.) Figures drawn from National Restaurant Association, Restaurants by the Numbers (2011), www.restaurant.org/pdfs/research/2011forecast_pfb.pdf.

(4.) DAVID Kamp, The United States of Arugula: How We Became a Gourmet Nation (Random House, 2006), 15.

(6.) Malla Pollack, “Intellectual Property Protection for the Creative Chef, or How to Copyright a Cake: A Modest Proposal,” Cardozo Law Review 12.5 (1991): 1477, 1490.

(7.) Jennifer 8 Lee, The Fortune Cookie Chronicles: Adventures in the World of Chinese Food (Twelve, 2008).

(9.) Figures in current dollars from the National Restaurant Association, www.restaurant.org/pdfs/research/2011forecast_pfb.pdf.

(10.) Lauren Sherman, “The Most Unusual Restaurants in the World,” Forbes, December 19, 2006.

(11.) Modernist Cuisine: The Art and Science of Cooking (Cooking Lab, 2011),

(12.) The GuardianFerran Adria et al., “Statement on the ‘New Cookery,’” Guardian Observer, December 10, 2006, www.guardian.co.uk/uk/2006/dec/10/foodanddrink.obsfoodmonthly.

(13.) Katy McLaughlin, “That Melon Tenderloin Looks Awfully Familiar …,” Wall Street Journal, June 24, 2006, http://online.wsj.com/article/SB115109369352989196.html.

(14.) Whether Vongerichten or Matsuhisa are really the inventors of these dishes is of course another question, about which there is some controversy. We have already noted that miso cod probably was not really pioneered at Matsuhisa; the same may be true for the molten chocolate cake. For example, Michel Richard, Michel Bras, and Jacques Torres have all been touted at some point as the true originator of the molten chocolate cake.

(16.) Under US law the medium in which a work is fixed need not be especially durable. Any fixation of the work that is perceptible for more than a “transitory duration” is sufficient. We recognize that molten chocolate cake is usually consumed pretty quickly, but since the cake nearly always lasts for more than a transitory duration it would seem qualified to receive a copyright. As we explain, however, this is not the case.

(17.) Architectural Works Copyright Protection Act (AWCPA), Pub.L. 101–650, Title VII, 104 Stat. 5133, December 1, 1990.

(p.245) (18.) Publications Int’l, Ltd. v. Meredith Corp., 88 F.3d 473 (7th Cir. 1996) at 476.

(19.) Ibid., 480. Very similar reasoning, based on Meredith, appeared a few years later in Lambing v. Godiva Chocolatier, 142 F.3d 434 (6th Cir. 1998).

(20.) U.S. Copyright Office, Recipes, www.copyright.gov/fls/fl122.html (accessed September 14, 2006).

(21.) Nigella Lawson, Nigella Bites—Comfort Food, http://www.channel4.com/life/microsites/N/nigella/bites2.shtml (accessed June 2, 2011).

(22.) See U.S. Copyright Office, Recipes, 101. See also Pollack, “Intellectual Property Protection,”. As David Nimmer pointed out to us, instructions merged with explanation in a cookbook are typically copyrightable. Thus when Lawson writes, apropos the Halloumi bake, “Season with black pepper, but no salt as the cheese will make it salty” that passage would probably qualify for copyright. Interview with David Nimmer, author of Nimmer on Copyright (Matthew Bender, 1978).

(23.) Christopher J. Buccafusco, “On the Legal Consequences of Sauces: Should Thomas Keller’s Recipes Be per se Copyrightable?” Cardozo Arts & Entertainment Law Journal 24.3 (2007): 1121, 1131.

(24.) Nimmer, Nimmer on Copyright, § 2.18[I].

(25.) Unless somehow the aesthetic appeal of the dress or the dish is “separable” from its function. For both dresses and food, the aesthetic appeal—the lovely appearance, the delicious taste—is infused into the article itself, and thus is not separable, and that fact defeats copyright protection. For this reason, food simply falls outside the scope of contemporary copyright law.

(26.) Complaint, Powerful Katinka, Inc. v. McFarland. In addition, Charles claimed that McFarland had violated his fiduciary duties as a sous-chef at Pearl Oyster Bar.

(27.) Trade dress is generally divided into packaging and product design. Trade dress that is only packaging does not always require secondary meaning to be protected, whereas trade dress that is part of product design must have it. See Walmart Stores v. Samara Bros. 529 U.S. 205 (2000).

(28.) Two Pesos v. Taco Cabana, 505 U.S. 763 (1992).

(29.) Ron Ruggless, “Taco Cabana Buys Rival Two Pesos,” Restaurant News, January 25, 1993.

(30.) New York Observer, February 28, 2012, www.observer.com/2012/02/mr-chow-02-28-2012/5/.

(31.) Sara S. Munoz, Patent No. 6, 004, 596; “Peanut Butter and Jelly Sandwich,” Wall Street Journal, April 5, 2005.

(32.) Pete Wells, “New Era of the Recipe Burglar,” Food & Wine, November 2006.

(p.246) (33.) Ibid. The review in The Age appeared in March 2004; John Lethlean, “Interlude,” The Age, March 16, 2004, www.theage.com.au/articles/2004/03/15/1079199150268.html.

(34.) McLaughlin, “That Melon Tenderloin,” reports that Wickens said that he would tell patrons of Interlude that the dishes in question originated in American restaurants. The apology is noted in the eGullet commentary, by an Alinea staff member.

(35.) Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).

(37.) Ibid., 1153.

(38.) Interview with Joachim Splichal, Chef, Patina Catering Company.

(39.) Interview with Laurent Torondel, Chef, Bistro Laurent Torondel.

(40.) With the exception of the Buccafusco and Von Hippel/Fouchart papers, which we’ve noted elsewhere in this book.

(41.) Robert Ellickson, Order without Law: How Neighbors Settle Disputes (Harvard University Press, 1994).

(42.) Emmanuelle Fauchart|Eric von Hippel, “Norms-Based Intellectual Property Systems: The Case of French Chefs,” Organization Science 19.2 (2008): 187.

(43.) Eric von Hippel, “Cooperation between Rivals: Informal Know-How Trading,” Research Policy 16.6 (1987): 291.

(44.) Emily Cunningham, “Protecting Cuisine under the Rubric of Intellectual Property Law: Should the Law Play a Bigger Role in the Kitchen?” Journal of High Technology Law 9.1 (2009): 21.

(47.) Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005).

(48.) Bret Thorn, “Catch-22: For Celebrity Chefs, the Bigger They Are, the Less They Usually Cook,” Nation’s Restaurant News, April 26, 2004.

(50.) Michel Orecklin and Laura Locke, “Food for Thought,” Time, 2004, www.time.com/time/magazine/article/0,9171,994185,00.html (quoting Nancy Seryfert of the California Culinary Academy); Chefography (Food Network Broadcast).

(51.) James Hibberd, Cable Year End Ratings, The Live Feed, November 30, 2011, www.hollywoodreporter.com/blogs/live-feed/cable-year-ratings-usa-hbo-52808.

(52.) Michael Pollan, “Out of the Kitchen, Onto the Couch,” New York Times Magazine, August 2, 2009.

(54.) Katy McLaughlin, “Chefs Gone Wild: Where to Eat this Fall,” Wall Street Journal, September 17, 2005.

(55.) Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 at 156 (1975).

(56.) Adria et al., “Statement,”.

(57.) Jonathan Gold, “The New Cocktailians,” L.A. Weekly, March 4, 2009.

(58.) Chantal Martineau, “The Era of Copyrighted Cocktails?” The Atlantic, August 31, 2010.

(59.) Jonathan Miles, “The Right Stuff (By Law),” New York Times, July 2, 2009.

(60.) Nick Fauchald, “Secrets of a Cocktail Master,” Food & Wine, www.foodandwine.com/articles/secrets-of-a-cocktail-master.