Fat Guy

Of course not, but this has nothing to do with the topic at hand. This topic started with several posts from Vancouver-area members saying things like: and and I urge you to consider the impact such conduct has on the credibility of restaurant reports throughout eG Forums discussions. The desire to have a regional forum read like a tourism brochure is tempting, but short-sighted. Editorial publications derive their credibility from their ability to express viewpoints independently. No one opposes a collegial, positive attitude and environment in the Western Canada or any other geographical community within the larger eGullet Society community. However, when it trips over into a lessening of credibilty, it goes off mission. I regret that the words "clubbiness" and "agendas" were -- because they were bad word choices by me -- misinterpreted by folks who are comfortable overlooking the shortcomings of the advertorial approach. By those words, I simply meant what was stated in the three quotes above, as well as others. I'm sure there were better words.

I definitely have an entrenched view that the culinary arts are as deserving of copyright protection as all the other arts and crafts that are currently protected by the copyright laws, both in the US and internationally. I am not, however, an entrenched interest. My work, as a writer, is already well protected. And as to the specifics of how to protect culinary interests and to what extent, I'm just in the early stages of figuring out where I stand on that.

There are contradictions in what a lot of folks are saying on this subject. That's because people are thinking it through, slowly moving towards the big picture. This isn't a debate between entrenched interests. This is much more of an open discussion and exploration. ASCAP, it should be noted, is an exception not the rule when it comes to copyright enforcement. ASCAP had to be authorized to operate as an exception to the antitrust laws, by the Supreme Court, in the landmark Broadcast Music decision. Justice White quoted the Court of Appeals: "in dealing with performing rights in the music industry we confront conditions both in copyright law and in antitrust law which are sui generis." In most other areas of copyright law, they've done just fine without an ASCAP-like structure. And I think in designing any new area one would almost definitely want to avoid the ASCAP approach. The apparatus for playing musical recordings consists of a $5 transistor radio, which is fundamentally why ASCAP is needed or arguably needed -- there's just too much going on to handle with anything less then a specialized licensing process. The apparatus for reproducing original culinary works in a commercial setting is far more rarefied. It's probably no more difficult to police than any other type of manufacturing.

Do you believe in copyright protection at all, for anything? If so, what's the justification for supporting it in other areas but not cuisine?

I imagine the primary area of uncharted territory will involve the determination of whether something is "original." It's worth noting, at the outset, that there's a ratio that gets preserved pretty well no matter how strictly or casually you define originality. If you make it very easy to call something original, you also make it very easy for the next person to make an original work that's only a little different, so you don't have to worry very much about an overwhelming number of claims. If you make it very hard to call something original, you reduce the number of things people can protect, so you don't have to worry very much about an overwhelming number of claims. For example, let's say we have a culinary work consisting of a potato carved into the shape of a distinctive stylized X and deep fried. Under a strict view, you'd say no way a fried potato shaped like an X is original. All the components of it are common knowledge. So there's no copyright protection available. Under a more relaxed view, you'd say, okay, if you are indeed the first person to "publish" (serve in commerce) a fried potato shaped like an X, that's original enough to qualify for copyright protection. However, the protection is very limited in scope: if somebody does an X with different curvature, or certainly a Y, it's also an original work. If somebody changes the breading, or anything, it's an original work. Either way, it's not as though the world comes crashing down in a pile of litigation. I think originality in cuisine should, however, be defined strictly, and the way to define that strictly is to define common (aka public) knowledge broadly: ingredients in their natural or near-natural forms, the results of repertoire techniques, the results of recipes that have been in existence for a long time or minor variations, would not be subject to protection. Rather, a dish would have to be a unique creation, without precedent, like a unique sculpture or other unique work of "applied art." There's a lot more detail involved, however the way to get to the detail is in large part to put the process into play and to let the combination of those who wish to protect their work, those who wish to be free to use others' work liberally, the government, the industry, the public and other affected groups to work it out over time, as is generally the way legal doctrine develops in detail.

I might be able to address it if you explain why you think copyright protection for original culinary works would hinder creativity. I think the intuitive conclusion is that if you protect original works you encourage original works. That, at least, is what I understand to be the entire premise of the copyright laws.

I think I can find quite a few chefs to say they believe strongly that their original works should be protected rather than forced into the public domain -- that they should have that choice. If I felt it would change your mind, I might pursue having some of them post here, but I suspect you're not really in favor of copyright at all -- at least that's what I take from your post above -- in which case it would be a futile exercise. In addition, "want" isn't particularly relevant to copyright law, for three reasons: first, because it's not part of the law or the theory behind it; second, because we don't currently know who would choose to become a chef if the possibility of such protection existed -- if the culinary arts attracted a larger talent pool (no, chefs are not generally driving around in Ferraris, most are working under adverse physical conditions for very little money), perhaps they would improve at a greater rate than otherwise; and third, because we don't know whether current chefs would focus more energy on creativity (both because of the possibility of ownership and because of the increased difficulty of outright copying) were such protection available.

What makes me think some chefs would like to be able to protect their original work, rather than be required to put it in the public domain because there's no protection available? What makes me think some chefs would like to have their work acknowledged as worthy of such protection? Just a hunch.

My point is that it's insulting to culinary artists to say their work is somehow inferior and unworthy of copyright protection, when artificial plants, bumper stickers and message board posts have copyright protection. And I think my characterization of the "it's too hard" plea as whining is accurate. That was the nicest word I could come up with for it. My actual opinion of using "it's too hard" as an excuse not to do the right thing is much lower. There is no justification for this distinction. Look at the list of what is protected by copyright law: everything from tapestries to trinkets. Why not cuisine? I think you're merging the increased depth of copyright law (which I too think has gone too far) with increasing its breadth to cover works that deserve protection. Using the former to justify denying the latter is manifestly unfair to those who create in the unlucky medium. Many do, but it should be their choice.

There are at least two possibilities: first, that works of cuisine will be categorized as sculptural works, which are already protected under the copyright laws; second, that they will be recognized as a new category. Again from the House report: http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000102----000-notes.htmlIn either case, yes, work needs to be done to define the boundaries of protection. This is not some mysterious process, however. It can certainly be brought in through statute, or it can be developed over time through case law, or a combination of the two. As with any area of the law, there would be pages upon pages of rules and exceptions to rules. I don't see the problem. Surely you're not suggesting that right now I should enumerate the entire body of proposed rules for culinary copyright protection. I don't think I can get it done today. It's a process that takes time and the contribution of many people. But it begins with the simple acknowledgment that those who create in the medium of food are as eligible for copyright protection as those who create in other media. And that, to me, is obvious. It will take time to overcome the ingrained bias that says the culinary arts are somehow unworthy of copyright protection, or that it's too hard so we shouldn't bother. But I'm sure that when it was first proposed that music be protected by the copyright laws, people made all the same arguments. They were wrong then and they're wrong now.

I'm quite sure the answer is yes, however we have plenty of chefs here who can tell you themselves whether they believe all their creative effort should be donated to the world or whether they think they should have a protectable ownership interest in it. Copyright isn't about secrecy. To the contrary, publication is a requirement of copyright law. I'm not sure how this is relevant. Because Australia is far away, they should be allowed to copy everything and anything down there? I'd love to see some substantiation for this definition, which would exclude almost every work of art in the world except the Mona Lisa and the other works at the pinnacle of the arts, however it's irrelevant anyway. Copyright protection is not a value judgment. As the House report on the Copyright Act states: "The phrase 'original works or authorship,' which is purposely left undefined . . . . does not include requirements of novelty, ingenuity, or esthetic merit, and there is no intention to enlarge the standard of copyright protection to require them." Exactly. The Mona Lisa isn't paint anymore, it's art. Nobody is trying to copyright the paint or the urchin. It's the original expression of the idea, in any medium, to which copyright protection applies.

I found two statements on the Olive Garden website, which cover two cheeses but not the mozzarella: and http://www.olivegarden.com/culinary/italia...ials/cheese.asp

That's correct. It would also be whining if I agreed with it. We should do what's right, not what's easy. Yes there's a lot of prior art and influence. Big deal. If anything, that just makes it harder to document the creation of an original work. The "it's too hard" contingent should be happy about that. It means there won't be a lot of culinary copyrights. Most chefs just don't operate at the level of creation, so we won't have to worry about them. So there should be no copyright protection for art, literature or music either?

I certainly think I'm doing my part, and you can be sure I'll do more.

All this whining about how inconvenient it is to protect the creative works of culinary artists is reminiscent of similar whining throughout history by people who said the right thing was too hard to do. If the only objection left here is that culinary copyrights will be complicated, the only answer needed is that it doesn't matter. I think it also happens to be wrong -- whatever body of standards emerges to govern culinary copyrights should be no more complex than the standards governing sculptural copyrights -- but even if culinary copyrights turn out to be categorically more complicated than any currently existing species of copyrights, we should have them. The question of whether is answered independently from the question of how. In a case of true impossibility, one would have to consider the how in deciding the whether, but we're not looking at impossibility here -- we're just looking at some addressable level of complexity.

Again, I really think anybody who wants to say that Olive Garden uses "fake" or "processed" cheese should present some evidence for that claim. The opinion that it tastes terrible or the observation that it melts well does not establish anything factual about the naturalness or lack thereof of the cheese. Cheese that melts evenly and easily, and tastes terrible, needn't be artificial. Pizzerias have used "low-moisture mozzarella" for ages because it melts well. Some of it is delicious, some of it tastes terrible. The low-moisture mozzarella that tastes terrible is not necessarily fake or processed or artificial -- it's just not good. Just as it's possible for a really bad cook to take great ingredients and transform them into awful dishes, it's possible to take milk and transform it into really bad cheese.

If it's a question of inspiration and stylistic similarity, there's no copyright law issue. If a chef is copying a specific sculpture in food and selling it, there's an issue.

Excuses, excuses, Sizzleteeth. There are 11.5 billion pages on the web, according to a recent study. The copyright laws apply to most of those pages. Message board websites with a million-plus posts are a dime a dozen and the copyright laws apply to every post. The web is working just fine. It's a pain to enforce online copyrights, but it's possible to enforce plenty. There are 120 million items in the Library of Congress. Many of those are books with several hundred pages, and the page isn't even the smallest unit of a book that's protected by the copyright laws. I'm sure if you were to break the Library of Congress's collection down into smallest copyright-protected units, you'd push into the billions or more. I think, however, that you vastly overestimate the size of the universe of original culinary works. Most everybody who participates here in eG Forums discussions cooks at a higher level than 99.9 percent of the world's population. How many of us have ever created an original work of cuisine? I know I haven't. Have you? I've never even created anything as original as the Bloomin' Onion, no less the works of Ferran Adria. Even among professional chefs, the percentage that create is tiny, and the percentage that care to document those creations is tinier still. The world of cuisine is not going to collapse under the weight of the copyright laws. There is, as far as I know, no example of any art or craft that has. The whole point of the copyright laws is to encourage creativity, or in the words of the United States Constitution, "to promote the Progress of Science and useful Arts." (The term "science," back in the day, being a general term for knowledge.) Do I think the copyright laws currently go too far? I do. Life plus seventy years is absurd, as is the current high degree of control of performance and adaptation. But those are not questions specific to any art or craft. The culinary arts simply deserve whatever copyright protection any other art or craft currently has.

That's like saying Sol LeWitt shouldn't be eligible for copyright protection of a lopsided cube, or Ellsworth Kelly shouldn't be eligible for copyright protection of a wavy X. It seems you refuse to recognize the beauty and artistry in what Ferran Adria does. That's fine. Not everybody has to. But let me ask this of all the people who smugly claim that cuisine can't be art: have you ever read any of the El Bulli books, or Alain Ducasse's Spoon book, and actually looked at and thought about the photographs? It's extremely difficult for me to believe that any rational person could look at that body of work and not consider it to be serious art in the medium of food. A few additional photos that El Bulli allowed the Daily Gullet to reproduce: To me, these are worthy works of minimalist sculpture, reflecting high intellectual aesthetic achievements of humankind. Contemplating those photos is a transcendent experience for me, and for many other people I know. Perhaps not everybody agrees. But surely enough people do agree, so as to make these works as copyright-worthy as a straw chef, a straw man, a fake plant, an eG Forums post, an ugly quilt, a stupid greeting card or a garage-band homemade CD. And of course I'm not talking about copyright protection for the photo. I'm talking about copyright protection for the dish depicted in the photo. It's absurd that Adria should be demoted to non-copyright-worthy status just because his medium is food. Make that exact same sculpture out of plastic and put it in MOMA and all of a sudden everybody agrees it's worthy (except those people who say Ellsworth Kelly . . .). And it's not as though we have to establish that cuisine is art in order to establish that it should be protected by the copyright laws. Most of what is protected by the copyright laws is firmly in the category of craft. I'm sorry that it's difficult to imbue culinary art and/or craft with copyright protection, but difficulty doesn't make it the wrong thing to do.

Okay, let's focus on other straw concepts instead. Here's a drawing I just made. It's an example of something that's eligible for copyright protection. I can make a limited edition run of ten of these and sell them on eBay. If somebody else copies this and starts selling it, I can go after that person under the copyright laws. Maybe even a raid on the factory. Now here's one of Ferran Adria's creations that you say isn't eligible for copyright protection. (Photo from the Daily Gullet courtesy of El Bulli).

I hope it never happens that you (and all the other people on this topic who so casually stereotype and insult the legal profession) someday create something and need a lawyer to protect your interests. I do, however, know dozens of people who have been in that situation. In 100% of cases, they change their tunes as soon as they realize a lawyer is the only person in the world who can help them.

Yes, I'm ready to advocate copyright protection for any original work that has been copied. Are you? If not, why not? Because you don't believe chefs are good enough? Only bumper-sticker authors and manufacturers of fake plants? Not that I believe for a second -- and neither do you -- that anybody's Auntie created anything like that dish. I'd of course change my mind if shown evidence, but there likely is none.

There couldn't be protection for a fried onion as such, but there might be protection for a unique variant of the fried onion. Is the Bloomin' Onion® such a unique variant? I imagine Outback didn't invent the idea of cutting off the top of a Vidalia onion, battering it and frying it so it looks like a flower. I think I remember seeing "blooming onion" on restaurant menus before Outback even existed, but I'm not sure. Perhaps someone else would know. If it is truly an original creation of Outback, then yes, I think it deserves copyright protection. If they made a distinctive sculpture of a flower out of plastic -- say a rose with dogs on the end of each petal or something unique -- they'd have copyright protection. If it is their original work, why should they all of a sudden lose that protection because they made it out of an onion instead of out of plastic?

While we could certainly discuss whether the Creative Commons license is an idea that chefs should embrace, they can't embrace it without first having copyright protection. Without copyright, the Creative Commons license can't exist. The underlying premise of the Creative Commons license is the "all rights reserved" notion of copyright. And the Creative Commons license is voluntary: the copyright holder can, out of generosity or any other motive, grant a Creative Commons license, or not. It all has to start with copyright protection for culinary works. And as I think has been demonstrated many times over now, it is absurd to single out cuisine for exclusion from copyright protection. Idiotic bumper stickers like "Frankly scallop I don't give a clam" can have copyright protection. The piece of crap artificial plants they sell at the dollar store can have copyright protection. "Believe in yourself!" greeting cards can have copyright protection. The ugly quilts my aunt makes can have copyright protection. The cover "art" on every talentless garage band's homemade CDs have copyright protection, as do any original songs. All the ugly dreck they sell from carts in the middle of shopping mall concourses -- the stuff that's too ugly and lame even to make it into a real store -- can have copyright protection. Every post on this topic -- even the ones that are ill-informed and completely inaccurate -- has copyright protection. But the works of serious artists like Ferran Adria shouldn't?

The copyright office says copyright protection applies to at least the following examples of the "visual arts" (I'd define some of these as studio arts and place others in various categories, but the copyright office lumps them all together as visual arts): Artificial flowers and plants currently enjoy more recognition than the works of Ferran Adria as subjects worthy of copyright protection. At least a bumper sticker that says "Roses or Bust" is protected. There's also a distinction made between the creative and utilitarian aspects of something: http://www.copyright.gov/circs/circ40.html That doesn't mean there's no intellectual property protection for useful items. It's just that it has to be found elsewhere from copyright law. Typically one would look to patent law for that sort of protection.