Fat Guy

We've seen the menu and it contains no attribution (there is a photo here), we've searched for attribution in news media (none found beyond claiming Minibar on his resume, which is particularly egregious if you're claiming the credential but not attributing the source, and if anything he speaks and is written about as though he's the creative force, e.g., "We simply apply this way of thinking with some less expensive ingredients and achieve some amazing results," and "Since moving to Tokyo in the fall, Ramsey has created a 25-course menu (¥8,000) that will change in part every two months."), the marketing language on the restaurant website takes credit (see above, claim of uniqueness), and there has thus far been no response from Mandarin Oriental (we will publish one gladly). In addition, as explained above, when you put your name on the cover of a book you're claiming credit -- you don't have to say "I claim credit." If you serve and market avant-garde creative cuisine in a restaurant, under the restaurant's roof, with the restaurant's name on the menu, you are claiming credit as well.

I think the most useful precedents are to be found on present-day menus, for example in the way Jose Andres names the dish Apples with red wine "Freddy Girardet." I've seen similar references on several menus in France.

It's a lot easier to create an original sentence than it is to create an original dish, because you don't have to eat your words (at least not today). Seriously, the nature of words and language means that all but the most factual statements will be original works of authorship. In a lot of other art-forms, there's a much higher hurdle to clear. Writers have it easy in that regard.

We need nourishment to survive, however we do not need to eat at Minibar to live. The experience of dining at a creative restaurant such as Minibar has nothing to do with survival. It is an aesthetic experience. Nor is the necessity of nourishment something that should be considered a put-down. In religious traditions, in particular, the meaning and symbolism of food transcends the issue of nourishment. There are always people who can't or won't appreciate a given art-form. Indeed, for every person there is probably at least one art-form that he or she can't or won't appreciate. In a pluralistic society, it makes little sense to tear down other people's preferred art-forms. We embrace them all, even when we don't understand why other people take them so seriously. Needless to say, the eGullet Society for Culinary Arts & Letters is based in part on the premise that there is such a thing as "Culinary Arts."

I should probably be more precise: I'm saying that anyone's opinion saying that the Bloomin' Onion® (the name, including a backwards apostrophe, is a registered trademark) is not particularly good or brilliant (actually, it's not bad either -- it's just about the only thing at Outback that isn't bad) is neither here nor there when it comes to copyright law or the ethics of plagiarism. There is still, however, a question of originality, both in the sense of first and in the sense of creation. Just as there can't be copyright protection for the statement "1 + 1 = 2" there probably shouldn't be copyright protection (or any plagiarism ethics issues) surrounding a fried onion. There's probably a legitimate debate to be had on the issue of just how different the Bloomin' Onion® is from a run-of-the-mill fried onion, just as there are similar debates all the time with respect to paintings, sculptures, songs, etc.

And when those sculptures are reproduced, if the process involves hand labor, there are going to be variations from sculpture to sculpture. So long as they're within a range, it's still a copy. The technical aspects of how much variation is required to make a new work need to be worked out per art form, but it's not an insurmountable intellectual challenge.

Many sculptures are produced twice, a dozen times or even hundreds or thousands of times a day. You might find "An artist and her copyright story" interesting in this regard. It tells of a sculptor, Impala Lechner, who created a bronze sculpture, "Geese in Reed," which was widely copied, including in mass-production scenarios. She had registered the copyright, and she pursued many successful legal actions around the world.

That guy is a genius! Whether or not we think it makes sense (and I may think it makes sense), neither copyright law nor the ethics of plagiarism has anything at all to do with the merit of the work being protected. In the case of copyright law, governments have -- probably wisely -- chosen a value-neutral approach so as not to be in the business of judging the merit of art (though they turn around and judge the merit of art in many other government-administered programs...). In the case of plagiarism ethics, the offense of plagiarism is mostly about the doer -- in other words the failure to attribute; the passing off of someone else's work as your own. The quality of the work has little to do with it. If someone is stupid enough to choose to copy Britney instead of Verdi, that doesn't make the person any more or less ethical or any more or less of a plagiarist.

Britney Spears is credited as the or an author of many of the songs she performs, e.g., in the On the Line soundtrack: Surely you know that trying to pull this back to the greatest composers and artists of all time misses the point. The worst composers, writers and artists of all time are equally protected under the law and by the conventions against plagiarism. No matter how bad your work sucks, it's protected just as much as the Mona Lisa and the Ode to Joy. Surely there are several million examples of copyright-protected and plagiarism-protected work that has far less artistic merit than Ferran Adria's worst dish on his worst day.

If you think the work of Britney Spears has more artistic merit than the work of Ferran Adria, you're certainly entitled to that opinion. But you're wrong. Not to mention, if you're visiting El Bulli because you're hungry . . . .

I agree that if the chef has been out there on the interview circuit crediting Andres, and if he speaks frankly about it to the customers, it does go a long way towards establishing good faith. We've been trying to get the Mandarin Oriental to tell us if this is the case. I'll report back as soon as we hear anything. What we do know, as stated in the first post on this topic, is that the hotel's website says: (emphasis supplied)At the same time, I think the question "has the chef at the oriental ever claimed that his dishes were his original inspirations?" needs a little more examination. For example, have you ever actually claimed that one of your books is your original inspiration? Or, rather, is it understood that by putting your name on the cover you're claiming credit? In the culinary context, the chef isn't likely to come out into the dining room and say "Zees ees my creation!" (Actually, I think that happened to me once, but I can't remember where -- still, it's atypical). Rather, the claim is made by serving this sort of cutting edge cuisine under the restaurant's roof, from a menu with the restaurant's name on it. If the restaurant is also being advertised as creative, original, unique, etc., that's even worse. (edited to add the quote)

DumbAss

One does not apply for a copyright. Copyright exists the moment you create unique expression. What you can do is register a copyright by depositing a copy or rendition of your work (for example, a copy of your computer code) in order to have evidence on file with an impartial government source, in the case of the US that would be the Copyright Office:

Uhhh, no it isn't. There is no copyright on "that first performance" of a piece of music. There is only a copyright on the score of the music. The only time a performance can sort-of be copyrighted is when it is recorded. And, even then, the performance isn't copyrighted -- the recording of the performance is. ← Yes, I don't think the parallel to music copyrights will get us anywhere. Dishes served in restaurants are much more analogous to sculptural creations, like the works of Michael Graves sold in quantity at Target. This is surely the subdivision of the copyright act under which one would make a case for protecting a dish like prawn noodles. One might also patent the process. One might also trademark "PrawNoodle®."

That's not what I learned. Stealing -- such as breaking into KFC's vault and stealing the recipe -- is of course stealing. But if a trade secret can be reverse engineered, that's just fine. --From patentideas.com A listing of ingredients, without more, is not eligible for copyright protection. A cookbook certainly is, as should be, I believe, a dish served in a restaurant. What is being protected is expression. In the case of a book embodying culinary creativity, what is protected is the expression of that culinary creativity. For processes and designs, patents are available. And for names, trademarks.

This and other questions of communication (such as how a chef should attribute a source) are probably the trickiest ones in this conversation -- once we get past all the truculent confusion about the basic ethical and legal issues, that is. I think it starts with the distinction between repertoire cooking and avant-garde creative cooking -- the difference between Caesar salad and "anti-gravity upside-down cake in a bottle." The extremes are pretty easy to explain. Drawing the exact line, as always, is more challenging.

The culinary artistry of Jose Andres, Grant Achatz, Wylie Dufresne, Ferran Adria or Heston Blumenthal, for example. Which is what we're talking about here -- at least it's what I'm talking about! I certainly agree that serving a Caesar salad (which so happens to be named after its creator, but that's neither here nor there) or most of the food that restaurants serve doesn't trigger the kinds of creative arts concepts that we're talking about. But here we have real artistry being ripped off and not attributed, and that's wrong.

This statement is incorrect. "Plagiarism is neither a tort nor a crime -- it is an ethical, not a legal offense. Accordingly, courts never handle plagiarism disputes." (From Charles Cronin of Columbia University School of Law). Plagiarism is "not addressed by our legal system in any real way, except for some scientific circumstances. It is enforced by public censure and punishments by institutions." (From the NCTE). This helpful grid may clarify the differences for you. This statement is also incorrect. The KFC seasoning recipe and the secret formula for Coke have no legal status. They are trade secrets. If they were patented, we'd know what they were, because it would be clearly stated in the patent. Instead, KFC and Coke have decided to keep the formulae secret. If you figure out the formula somehow and you use it, you're violating no law. There are, however, many instances under which culinary creativity is protected. Try copying a cookbook and publishing it as your own and you'll see what I mean. There are also plenty of culinary processes that are patented, and plenty of names of culinary products that are trademarks. Culinary creativity in the restaurant kitchen has been slow to achieve copyright protection, most likely because creative chefs are a small, fragmented, low-resource group, however as a conceptual matter it's a no-brainer to understand that the culinary arts should be treated the same as the visual, performing or studio arts -- unless one believes the culinary arts are somehow inferior to all other arts.

You could say the same thing about painting, sculpture, opera, theater and film. Does it piss you off that these art forms receive intellectual property protection?

The pipette technique definitely comes from El Bulli -- there were several El Bulli dishes that used pipettes, such as the cold prawn and prawn head on a pipette -- however Jose Andres has done his own dish. This is how inspiration and creativity are supposed to work. Moreover, Andres has always credited Ferran Adria as his mentor and inspiration. He is Adria's man in the United States. Everything Andres does is above board and out in the open. There's no ethical issue, and were there a legal issue he'd clearly have permission from Adria to incorporate select El Bulli concepts into Minibar dishes -- as far as I know Adria couldn't be more proud of Andres and is totally aware of and supportive of all that Andres does. This description from the South Beach food festival of a dinner honoring Adria is a typical illustration of the Andres-Adria relationship: However, while Adria and Andres have an ongoing mentor-mentee relationship, Andres is one of the most original chefs of our time. He's the ideal of the disciple who has made it big: he put in his time at El Bulli, he learned not just how to make El Bulli's food but also how to think about cuisine for himself, he kept in close touch with his mentor, he uses El Bulli as a springboard but goes in his own directions, he is open about his inspirations and his sources, and he has been an incredibly successful businessman. You don't have to lie and deceive in order to be successful. Attribution costs nothing.

Even if that's the case, consider all the hotels in Las Vegas that only see dollar signs. They understand that it's good business to license copies of restaurants from their celebrity chef creators. Surely a legitimate Minibar branch, especially in Tokyo, would bring prestige to the hotel. And when it comes to the dining program at a hotel, isn't that what it's all about? They're not making serious money from dining -- in fact they may be losing money. Rather, having prestigious restaurants in your hotel increases your hotel's stature and therefore allows you to charge higher room and conference rates.

Chances are 0 in a billion. The chef at Tapas Molecular Bar, Jeff Ramsey, worked at Minibar for a year. What I don't get is why Mandarin Oriental didn't just offer Jose Andres a consulting fee to set up a Minibar branch at their hotel in Tokyo. It can't be because Mandarin Oriental is run by cheapskates. I wonder if anybody in upper management even knew this was a knockoff.

Des minimis non curat lex was not part of the first year curriculum when I went to law school. In addition, it is false and it is irrelevant to the discussion of plagiarism. Plagiarism is an issue of ethics, not of law. Many acts of plagiarism also involve breaches of the intellectual property laws, but they are not the same.

If people are persisting in the belief that "there's no such thing as culinary plagiarism," this horse is very much alive. It's not even injured. To plagiarize is, per Merriam-Webster or most any other dictionary, to steal and pass off the ideas of another as one's own. It is fraud. To say "there's no such thing as culinary plagiarism" is to say that in cuisine there is no such thing as stealing and passing off the ideas of another as one's own. Yet it has been demonstrated resoundingly now on two separate topics that culinary plagiarism is occurring: that chefs are stealing and passing off the ideas of other chefs as their own. Nitpicking a couple of the photographic comparisons when there is such overwhelming evidence -- menu comparison, ten sets of photos, restaurant comparison, biographical facts -- changes nothing. Those who wish to grant the world a license to steal their work and not attribute, because they've allowed themselves to be convinced that there's no such thing as culinary plagiarism and no such thing as intellectual property in cuisine, are either very generous or very gullible.

They often get it wrong when it comes to New England blueblood WASP culinary preferences. Mac-and-cheese is certainly part of the vernacular of that demographic. The show's writers, living in California, have probably never been to, for example, a real old-money Connecticut country club.