The Knockoff Economy
Page 8
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 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 misoglazed 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
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 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:
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 mo
dicum” 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
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 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 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 i
n 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, 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.