Fat Guy

That's just how people speak about restaurants. If you look at many restaurant reviews, such as in the New York Times, you'll see the chef typically credited and blamed for everything, which is as it should be. The Times reviewer knows the restaurant is a team effort, but the chef personifies the team. This echoes the way people speak about many types of projects where there's a leader backed up by a team. The lead counsel in a court case might have 50 attorneys working for him, he may not have done any legal research in 20 years and in major litigation he probably didn't even read the legal briefs on many of the minor procedural issues. Nonethelss, he signs the papers and is the face of the litigation team, and, ultimately, he takes full responsibility for anything that goes wrong.

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That piece is shameful. What was Eater thinking? Some information on Shake Shack just came in through PR channels:

You'll also want to speak to an attorney, or at least to someone knowledgeable about the local beverage laws (such as your insurer). If you sell tickets to an event where alcohol is served, you may very well trigger a host of regulations and liabilities. And you may be breaking the law if you do it without some sort of permit. This varies by locale.

You're failing to separate the notion of quantity from the notion of creativity/originality. People need to eat. Of course there's going to be a food service industry. And of course it's going to grow, because the population that needs to be fed is growing and people are eating at home less and less (and when they eat at home they're cooking less) for macroeconomic and socio-cultural reasons. But what is the nature of that industry? Your claim that "If a restaurant gets a reputation as derivative, it will lose business anyway regardless of whether it is being sued by those who it copied from" is simply unsupportable. Not only do I think it would be impossible for you to show even one example of a restaurant that has lost business by being unoriginal, but also I could show you thousands of counterexamples: every bistro, brasserie and diner, for example. The question is not whether the culinary industry is growing, but whether it is particularly original or creative. And there I think the answer is a resounding no. The creative subset of the culinary industry is tiny, and I think there's a reasonable inference to be drawn -- and certainly to be explored -- that says there's insufficient incentive to pursue creative cuisine. I certainly agree that money is not a muse as such. It's not really possible to force creativity. As an author, I know this well: creativity comes when it comes. At the same time, as an author, I know that I can't do anything creative at all unless the preconditions for creativity first exist. In other words, I need to make a living. The fact that I can (sort of) make a living from creating means I can work in such a way that allows my muse to do her part. If I had to spend all my time writing catalog copy for Computer Discount Warehouse, there would be no opportunity to create. And I agree that copyright becomes especially important as a response to technological challenges. But what we're seeing in cuisine today is very much a technological challenge. Advances in digital photography and printing, the instant communication provided by the internet, the ability to travel -- these all facilitate copying because the photos are out there, the cooks are apprenticing and so on. Take a hypothetical example of an industry composed of thousands of small workshops that produce two types of widgets: widgets that are the same as other widgets, and widgets that are original. They produce them in quantities of a few thousand per week per workshop, and there isn't all that much growth available per capita because each human only needs so many widgets. And let's say the demand for widgets is such that people will pay $3 for the copycat widgets and $3.50 for the totally original, creative, unique widgets. Let's also assume that it costs $1 to produce each copycat widget and, when you add in the cost of creative resources (time, extra employees, a lab, product tests, whatever) it costs $1.50 to produce each original widget. Under those circumstances, with the margin on all widgets being equal at $2, there is no real economic incentive to set your widget workshop up in such a way as to encourage creativity and originality. Why bother? The only people who will bother are a few visionaries -- true believers. Worse, if there is no intellectual property protection for original widgets, those who produce copycat widgets can just copy the original widgets and sell them for $3.50, even though their production cost is only $1. So the creator of the original widget earns $2 per widget and the copier earns $2.50 per widget. However, if the copier is required to pay a fee to the creator for each copied widget, we have a totally different situation. Because if you create a widget that everybody wants to copy, you go from making a couple of dollars on a couple of thousand widgets per week to making a couple of cents on, potentially, millions of widgets per week. Under such circumstances, new entrants to the widget industry would be encouraged to pursue creativity. This is how the intellectual property laws are supposed to work to encourage creativity and originality.

I didn't think my meal was so great, and I hasten to add that I was there when it was the only fine-dining restaurant in the empire -- and Keller was there. I haven't been back to the French Laundry since then, so my opinion hasn't changed at all. What I said was that many people consider French Laundry and Per Se to be two of a small handful of America's best restaurants. If they believe that, they should probably stop arguing that the chef has to be in the kitchen. I certainly agree with that high assessment with respect to Per Se, the restaurant at which Keller spends less time. In other words, the issue of presence or absence is irrelevant -- it does not correlate with anything.

Why should anybody care where the executive chef is? In most any restaurant that serves any sizable number of customers, the executive chef didn't cook anything you're eating anyway. We should care about the quality of the food on our plates, not distractions like whether or not the chef was in the kitchen. If the chef does his job right, the food will be the same whether he's there or not. If you're able to tell, by eating the food, that the chef isn't in the kitchen, that just means the chef has failed.

If the implication is that Thomas Keller doesn't spend a lot of time in his restaurants' kitchens, directly involved in the food preparation, that couldn't be farther from the truth. He is by all accounts one of the hardest-working chefs anywhere, pulling long shifts and working in a very hands-on manner. At the end of a shift, he can often be found scrubbing the cooktops and floors. It's true that he has two fine-dining restaurants on opposite coasts, however each of those restaurants is widely considered to be among the best (or, by many, the best) in North America. This hardly seems an insult-worthy achievement. It simply demonstrates that he's not only a brilliant cook but also a brilliant chef-executive.

This isn't really a "should" question. When testing for "independent creation," courts look at "access" because if somebody claims independent creation it's pretty hard to make that claim if you had access to the original. Even where access can't be shown, "striking similarity" can be important evidence to overcome an independent creation defense. There have over time been some successful independent creation defenses, but I wouldn't call it common. In terms of variation, which is really a separate point, the requirement is "substantial variation." You can't just take a marble sculpture, make the exact same sculpture in granite, and claim it as your own. I'm off for a few days. Someone else is going to have to carry the torch for chefs' rights.

What is clear is that it's the premise or a major premise of the intellectual property laws. If you're saying it's a false premise, you're saying we shouldn't have copyrights in any arts, unless you can identify some other premise that includes all the arts currently thought to be protected but excludes the culinary arts. If you're opposed to all copyrights in the arts, that's a more fundamental argument that has been extremely well covered in the literature and to which, I think, we can contribute exactly nothing. Assuming, however, that the intellectual property laws make sense in the first place, nobody has been able to articulate a compelling justification for including bumper stickers and artificial plants but excluding cuisine.

A law review article shouldn't rest on an unsupported assertion. I hope when you write it you'll note that this is just your opinion, one with which some observers disagree. Would you like to propose a list of truly creative chefs of the past 100 years? Would it be longer than a page? Chef Cantu's thinking seems to have evolved during this discussion. I hope you'll note that as well.

In what context does Thomas Keller's answer appear?

You believe that gastronomic creativity abounds? I think it would be much easier to support the conclusion that in the entire world there are only a handful of truly original and creative chefs. So if my view is correct, that unravels all your subsequent points: cooking has not done just fine, in fact it has been largely stagnant for 100 years, with only a few selfless creators driving the major changes. Perhaps, had there been an economic incentive to create, more creative people would have chosen the culinary arts. It seems that, today, whatever renewed interest there has been in the culinary arts has come from economic incentive: the chance at celebrity chefdom, a show on Food TV. If instead the incentive became to create original culinary works, who knows where we'd be? Moreover, to say that most cooks feel a certain way, after that group has been selected for 100 years from exactly the population that feels that way is tautological -- we know most chefs just copy, so of course they aren't going to say copying is wrong. At the same time, we have two of the foremost representatives of originality -- Homaro Cantu (chef of Moto) and Nick Kokonas (owner of Alinea) -- right here saying they support intellectual property rights for culinary artists. The copyright laws should not be based on what the uncreative want; they should be based on what will stimulate creativity.

The Statute of Anne was in 1710. According to ICLA, the Irish Copyright Licensing Agency: http://www.icla.ie/ http://www.copyrightprotection.com/history.htm However, as is acknowledged in most any history of copyright, concerns of authorship trace back to the Ancient Greeks and Romans, even before the corresponding property rights became entrenched during the Enlightenment. What, you thought they just thought it up one fine day in 1710?

Independent creation is kind of hard to prove if you're a former stagiaire or customer of the establishment you're copying, as is the case here. Once access is demonstrated, it's pretty hard to mount an independent creation defense. Copyright protection does not apply to works all components of which are common property and contain no original authorship. Likewise, minor variations to common property or to something like a typeface don't qualify. In cuisine, I would think this would be tantamount to saying that all the dishes in the repertoire -- e.g., Caesar salad -- are common property and contain no original authorship, and that just making a minor tweak to a Caesar salad is insufficient to trigger copyright protection.

While the printing press historically triggered some movement in intellectual property law, however it's one point on a historical timeline stretching from Ancient Greece and Rome to contemporary international law. As far as the basis for much current intellectual property law, the purpose of United States intellectual property law, as stated in Article I, section 8, clause 8 of the United States Constitution provides that Congress shall have the power "to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The purpose is not cookie-based, nor is it limited to the notion of the printing press. The purpose is to promote progress by protecting original works. The point is that if you protect original works you encourage original works.

Whether or not it's art is irrelevant to the copyright laws. The question is originality. It hasn't all been done. Some has, some hasn't. What hasn't been done should be protected.

None of that has much to do with copyrights. We're not talking about the processes, but rather the expression of the cuisine -- what's actually on the plate. The reliance on various processes does inform the end result, but that would be an issue for patent law not copyright law.

If you can find someplace where I said so-called molecular gastronomy is "better" than other types of gastronomy, please point to it. I believe what I've said, several times now, is that creative, molecular, avant-garde or what-have-you gastronomy is by its nature going to give us more in the way of "original works" than what might be called "traditional and contemporary cuisine" if we define original works to exclude most prior art, ingredients in their natural or near-natural forms, repertoire recipes and the standard range of adaptations, and anything else that is common knowledge. This whole discussion didn't happen until the culinary avant-garde forced it, because the mechanisms and processes that produce avant-garde culinary works represent a break from traditional and contemporary cuisine. Concepts are explored in a laboratory/studio/workshop environment, creations are purposefully original, the emphasis is more akin to what we'd see in many of the visual arts today. Do I think the work of Thomas Keller would be protected? Some of it, surely. There is plenty of originality there. But most chefs aren't creating anything original, not because they're "worse" but because that hasn't been their emphasis. Whether that state of affairs would be different if, in 1870, cuisine had come under the protection of the copyright laws will never be known. So I think after 13 pages of this topic we may have finally caught up to the first paragraphs of the Daily Gullet editorial that started it. I recommend it to anybody with an interest in the subject matter:

I think using one of your recipes, modified to have a bit of root beer flavor, would be an excellent solution.

Like my father taught me, never say no, just ask for more than they're willing to give so they say no. If you explain that the root beer cake will involve X, Y and Z and as a result will cost three times as much as one of your regular cakes, chances are they'll just opt for a regular cake. If they're actually willing to pay a super premium for the cake, sure, it may be worth your while to make it, though a single baking test in the shop probably isn't enough -- transportation and service are, as you know better than I, the big pitfalls for wedding cakes.

Whether or not it's rational, I think there is at least a partial explanation for why many people in the US have trouble eating dogs, cats and horses (pets) but not cows and chickens (livestock). As far as I can tell, it's basically an extension of the cannibalism taboo. Dogs, cats and horses are seen by many as part of the extended human family -- many who have these animals literally consider them to be a part of the family. As a result, the discomfort involved in thinking about eating them is reminiscent of the discomfort involved in thinking about eating people. If we kept chickens as pets and only used dogs as livestock, the perceptions would no doubt be reversed.

If the cake sucks, collapses, disintegrates when cut or is otherwise screwed up you'll be blamed.

I imagine a coalition of groups would need to be formed. IACP (International Association of Culinary Professionals) would be a logical core participant. There are also many other gastronomy groups that are more specific by subject-matter and region. If, however, the traditional industry groups lack the imagination to think in these terms, there's always the eGullet Society, and also the various avant-garde and molecular gastronomy groups would be important participants -- much of the affected work comes from them.

The servers have said to my parties several times "one is like cold appetizers, two is like hot appetizers and three is like half-entrees."