Fat Guy

Just to be clear on the locus of plagiarism: if the aforementioned chef had done the lobster dish with lobster -- exactly the same -- and said "This is a dish made at Jose Andres's Minibar in Washington, DC, USA," it would not have been plagiarism. Indeed, I'm hoping the Mandarin Oriental, Tokyo, writes to me today and says "Oh, we actually have a sign, prominently displayed at Tapas Molecular Bar, that credits Minibar with 15 of our dishes." Such credit isn't on the menu or anywhere else we could find. The question of the degree of change necessary to make a dish one's own is a complex one. It's confused further by the nature of avant-garde dishes, where there's no uniform "main protein ingredient, sauce and two veg garnishes" arrangement. If every dish had those four components, one could draft a simple rule, e.g., "change the main ingredient or change any two of the other ingredients and you've changed the dish enough such that you're not copying it." With avant-garde dishes it's not as clear cut, but certainly in the lobster dish doing the same thing with beef would have taken it into the realm of inspiration rather than copying. I'm pretty sure there are a few restaurants out there using the injector now, and I think they all got it from Minibar or they and Minibar got it from some other common source, but as far as I know they all try to do their own thing with it. And on the rare occasion that Minibar copies a dish -- and I don't think this is even a real copy -- Minibar says so, for example the Minibar dish "Apples with red wine 'Freddy Girardet.'" Pan, the Creative Commons license is used by some websites as a way of giving automatic permission for reproduction under certain circumstances. The tastingmenu.com license grants permission for reproduction so long as there is attribution, the reproduction is non-commercial and the originals are not altered.

"Plagiarists, at least, have the merit of preservation." --Benjamin Disraeli Over the past couple of weeks, we’ve seen significant discussion of culinary plagiarism and intellectual property issues. Most of those discussions have been at the expense of a lone Australian chef, whose copying was so thorough it made for a useful starting point for discussion: there were no shades of gray. It’s time to move on from Australia. Culinary plagiarism is not endemic to Australia. It is a global problem. In the time since we exposed the aforementioned incidents, several other examples of brazen copying have come to our attention. One in particular is, I think, worthy of close examination. The information came to me from the Washington, DC-based Proximo Restaurants organization, which is the creation of chef Jose Andres. Over the past couple of years I’ve developed several ties with the Proximo organization, first as a customer pursuing a recommendation, then as a writer covering Andres’s restaurants online and in my book, and recently, when my book came out, we had the opportunity to do some joint promotion: a party at Cafe Atlantico, a joint television appearance, working together on a charity event. The extent of my relationships with Proximo gave me pause, however those relationships also gave me access, and I think you’ll see that this situation is not really a matter of opinion. The links sent to me were to two reports (part 1, part 2) on a culinary blog site called tastingmenu.com. The reports chronicle a multicourse meal at a restaurant called Tapas Molecular Bar. The Tapas Molecular Bar is located on the 38th Floor of the Mandarin Oriental, Tokyo, hotel. The hotel website describes it thus: Looking over the extensive photography in the tastingmenu.com report (several of those photographs will be reproduced below under the Creative Commons license), one photograph jumped out at me right away: This dish, called lobster injection at Tapas Molecular Bar, looked remarkably similar to a dish Ellen and I enjoyed, and photographed, at Jose Andres’s Minibar in Washington, DC, in February 2004, called lobster Americaine. The injection bulb is filled with a rich lobster stock, which you squirt into your mouth as you eat the lobster. Here’s our snapshot: Another similarity seemed remarkable from the get-go, not so much for the photograph (are there any haute cuisine restaurants left that don’t serve a dish in a demitasse cup?) but for its totality. Tapas Molecular Bar calls this dish foie gras soup “chaud froid.” At Minibar in February 2004, we were served “hot & cold foie gras soup.” Needless to say, chaud is French for hot and froid is French for cold (although a chaud-froid dish is one that is cooked and then chilled, not one that is simultaneously hot and cold). The chef at Tapas Molecular Bar is Jeff Ramsey. It should come as no surprise that Ramsey worked at Minibar from, according to Proximo, 1 July 2004 through 30 June 2005. Prior to that, Ramsey had been making sushi at Signatures, a restaurant around the corner from Cafe Atlantico, in which Minibar is located. After befriending Minibar’s chef, Katsuya Fukushima, Ramsey was invited to work at Minibar and stayed for a year. In addition, according to Proximo, the executive chef of the Mandarin Oriental, Tokyo, Hide Yamamoto, dined at Minibar a number of times as a guest of Jose Andres when in Washington, DC. Several additional photos in our collection of Minibar photos matched up against the Tapas Molecular Bar dishes shown in the tastingmenu.com report. I then asked the Proximo publicist for a full set of photos of the current Minibar menu offerings, as well as a copy of the current menu, as we have not had a proper Minibar meal in the past two years (though we have been to Cafe Atlantico several times since, and had some Minibar dishes). All told, 15 courses of the Tapas Molecular Bar menu turn out to be near exact copies of Minibar dishes. Some have minor plating variations, but they are fundamentally copies. Here is a list, with the Tapas Molecular Bar dishes on the left and the Minibar dishes on the right. This list also reflects the order of service. Sidecar = Passionfruit Sour Crispy Beets = Beet Tumbleweed Pineapple and Salmon Ravioli = Pineapple and Salmon Ravioli with Avocado & Quinoa Glass of Wine = Desconstructed Glass of White Wine Melon Tenderloin = Melon Tenderloin with Almond Espuma & Micro Salad Linguine with White Sauce = Feta Linguine Frozen Beet Soup with Scallops = Frozen Beet Soup with Bay Scallop Foie Gras with Cotton Candy = Cotton Candy Foie Gras Deconstructed Zucchini =Zucchini in Textures Lobster Injection = Lobster Americaine Foie Gras Soup - Chaud Froid = Hot & Cold Foie Gras Soup Fish and Chips = Breaded Cigala Niku Jaga = Meat and Potatoes Vanilla Pate de Fruit = Saffron Gumdrop Red Currant Marshmallow = Maracuya Marshmallow Niku-jaga is Japanese for meat and potatoes, it turns out. So far, I've been unable to contact the people behind Tapas Molecular Bar, however we would certainly welcome their comments. Here are a few additional photographic illustrations, with Tapas Molecular Bar photos on top and Minibar photos underneath. Some of the Minibar photos are ours, and some are courtesy of Proximo. The Tapas Molecular Bar photos are all from the tastingmenu.com report. In addition to the dishes and overall menu, the restaurant Tapas Molecular Bar itself is fundamentally modeled on Minibar. The counter arrangement, the small number of seats (6 at Minibar and 8 at Tapas Molecular Bar), the format and duration of the meal. In short, Tapas Molecular Bar has copied not only a few menu items, but an entire restaurant. The point of this examination, however, is not to single out Tapas Molecular Bar, though it surely deserves to be singled out. Rather, it is to demonstrate that there is a global culinary plagiarism problem that demands the attention of those who take the culinary arts seriously.

Yes, only wealthy people and corporations with tens of thousands of dollars at their disposal for each instance of invention should be able to protect their work. Those without major resources should never be able to own their creations -- they're just volunteers.

I could see how old media critics, accustomed to being able to preach from on high without challenge, could find the internet disconcerting: those they criticize now have the ability to respond. The urge to portray new media as frivolous and petty must be strong. For their part, I hope the folks in the Vancouver contingent are now seeing how their clubbiness can erode their credibility. More objectivity and fewer agendas would go a long way towards righting that balance.

Three-star review in the New York Times today: http://events.nytimes.com/2006/04/05/dinin...ews/05rest.html A lot of emphasis in the review on the name of the restaurant, and on the cafe food. The comments on the fine dining part seem almost like an afterthought.

Sure, the photo needs a description that needs to conform to various technical criteria, so as to distinguish between a bunny made from chocolate and one made from blood pudding, or whatever.

Photographic comparison should do the trick -- just look at how this topic got started. It's pretty easy to see that these dishes are as near to exact copies as the medium allows. To get hung up on the minor sensory distinctions point would be a distraction.

There are plenty of standards in other areas of copyright law that cover issues like these, such as "distinguishable variation" in photographs. And of course there would need to be some standards unique to the culinary arts, as the culinary arts are not the same as other arts. The overarching issue, however, is pretty simple: a completed dish is not a recipe; it's a work of art. It should have the same protection under the law as any other work of art, design, literature, music what have you. A two-sentence post on an eG Forums topic -- a post that took one minute and little creativity to write -- is fully protected by the copyright laws, automatically, for free, no need to register anything. Yet people are quick to argue that a dish Grant Achatz spent weeks creating, at great expense in a laboratory-like environment, shouldn't be protected by any laws at all. Is cuisine so unworthy that it, perhaps alone among the arts, should have no protection? That the only remedy for an aggrieved chef, who has had his creative work stolen, should be eG Forums posts?

A unique dish served at a restaurant represents a tangible medium of expression. You can see it, touch it, smell it, eat it, photograph it. It's a unique artistic creation just like a sculpture, photograph, building, poem or song.

Nathan, I agree that litigation can be expensive, however I see this as a no-brainer and there are ways to litigate this sort of thing on a shoestring. This is mostly a conceptual argument and would not, if properly conceived and filed, require zillions of pages of evidentiary discovery. It would probably be decided on summary judgment. I think, given the amount of dining out that lawyers do, it wouldn't be beyond the realm of possibility for a major New York law firm to agree to represent a group of top chefs pro bono in a copyright action, which would no doubt move quickly to the appellate level. It would be interesting new case law and probably not hard to win. There are also industry groups that might be willing to get involved.

So is writing a song or a book, creating a sculpture, etc. You don't lose copyright protection because there are concepts behind your work. Rather, you're just don't get copyright protection for the concepts. You get copyright protection for the expression, in this case the finished dish.

The statute lists examples. More important is the general rule: "Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." This easily encompasses a plated dish served in a restaurant. In addition, the copyright office has this to say about the enumerated categories: There are several enumerated categories (e.g., architectural works) that could encompass a plated dish served in a restaurant, however "pictorial, graphic, and sculptural works" is a good start. Also, the listed categories are stated as examples: "Works of authorship include the following categories," not "Works of authorship are limited to the following categories."

Nathan, I wouldn't be so quick to dismiss copyright law as a potential source of protection here. Just because it hasn't been brought into play in this context yet doesn't mean it's not applicable. I think there's a lot of rote thinking going on in the culinary community with respect to the copyright issue. People have taken the "You can't copyright a recipe" maxim and applied it to expression. That doesn't make sense. The fundamental distinction in copyright law is that you can't copyright an idea, you can only copyright the unique expression of that idea. That's why you can't copyright a recipe in the sense of a list of ingredients: a list of ingredients is simply the factual recording of an idea, it is not the unique expression of that idea. A dish, however, is not a recipe. A dish is when you take a recipe, cook it and otherwise manipulate it through a variety of processes and crafts, plate it, name it and serve it. The finished dish, it seems very clear to me, is the expression of an idea. It is the culinary parallel not of a recipe but of a literary work, a song, a painting, a photograph, a piece of computer software. These are all without dispute protected by copyright law. In addition, with respect to copyright, it is not necessary to go through an expensive registration process. Copyright is part of the nature of things, as far as the law is concerned. If you write a book, you have the copyright, whether you register it or not. Registration is available, and it is not expensive at all: the filing fee for Short Form TX is $30 (US). It provides evidence of copyright, and makes litigation easier and more forcible, but it doesn't create the copyright. The copyright was already there. Registration just records it.

Fondue (the kind with oil) is probably the foremost non-Asian example of cook-it-yourself dining.

The scheduled opening date is 30 May 2006. The 18 May date is the date of the pre-opening party. Some information from the press release:

There was a piece in City Paper about this awhile back (http://citypaper.net/dish/dishspring2K5/gratuity.shtml). Certainly, the results of a survey are suspect, but so are other methods. Many restaurant employees, for example, still under-report their cash tips. It's less of a problem now than it used to be, but it still happens. In any event, the thing about the City Paper piece was that, while it pointed out that the survey method was suspect, it also couldn't find a whole lot of evidence to the contrary. Pretty much all the people in the business they interviewed about it said, yeah, we consistently get about that much in tips.

There's a terrific fish & chips place in London called Rock & Sole Plaice. Adam, I agree that there's no true substitute for Dover sole in a real Dover sole recipe, such as a La Meuniere. But really, how often do you see such a recipe in a cookbook these days or in the past couple of decades? In most cases, the contemporary sole recipes you see can work just fine with John Dory. Most people don't even mean Dover sole when they say sole these days. They mean flounder.

This is exactly the point of constructive criticism, which is the type of criticism we should all be striving for: it might improve things. Constructive criticism is non-oppositional. Although negative comments are certainly an important part of constructive criticism, they're usually part of a larger evaluation that includes positive comments as well as suggestions for improvement.

I think, as this is a community, it's important to view this issue from the standpoint of the community: an individual may find it more convenient or comfortable to self-censor or sugar-coat, at least in the short term. But if every individual behaved that way, the community would suffer. The community and the quality of the discussions here overall depend on an exchange of ideas and a diversity of viewpoints. In particular, divergent viewpoints stated with civility generate a positive frisson that can drive discussions forward. In the end, from that, everybody wins. In addition, I'd like to remind everybody that if you're feeling persecuted or otherwise harassed by another member, you should report that to the eG Forums staff. We're here to help with exactly that sort of situation.

Maybe. I wouldn't be so sure without some sort of factual evidence, though. There's plenty of bad cheese out there that's made from only the standard cheese ingredients. For example, if you look on the label of Polly-O supermarket mozzarella cheese, you'll find that the ingredients are "Pasteurized Milk, Vinegar, Salt, Enzymes."

Are you located in the United States? If so I'd suggest there is only one place from which you should order Balsamico: the Rare Wine Company out of California. They have by far the best selection and the best reputation for integrity. You'll find, I believe, that they stand behind every product they sell. Have a look at their Balsamico circular: http://www.rarewineco.com/pdfs/Balsamico%2...05%20Retail.pdf I'd suggest one of the $59 bottles to start, if they have any in stock. You might have to wait until the next importing season, though -- these things go quickly.

I should add that I think there's a variation introduced by the two possible ways of calculating tips. A lot of individuals tip on the grand check total, which includes the sales tax, whereas tip research tends to compute by the pre-tax bill. So, for example: On a $100 restaurant check in New York City there would be $8.62 in sales tax. If a customer left $19 as a tip, that would be 19% of the $100, but 17.5% of the $108.62. Also, it's important to note that tip percentages are only one factor in determining tip amounts. Another major factor is the check amount. If it costs $15 in New York City for the same meal that costs $10 in the Boston suburbs, an identical percentage tip will be 50% larger in New York City.

According to the research conducted by the Zagat organization, released with the 2006 surveys: "Restaurant-goers in Philadelphia (19.2%), Atlanta (19.1%) and Boston (18.9%) are the nation's most generous tippers, while diners in Seattle (18%), Los Angeles and San Francisco (both at 18.3) turn out to be the worst. Nationwide, the average tip has been going up over the last several years from 18% in 2000 to 18.7% today."

If I posted about every meal I had, not only would I forever cement my position as the eGullet Society's most boring participant, but also I'd have a lot more than my current puny 18,000 or so post count. No, I don't think eGullet Society members or even executive directors have sworn a blood oath to post about every bite of food they eat. In general, I'll post when I have something to contribute. If it's a question of starting a topic about a restaurant that isn't currently under discussion, my threshold is that I'll comment about it if I think the restaurant is really good, really bad or really newsworthy. If it's a restaurant that's under discussion, I may or may not add to the topic. If there are already 100 positive comments and I agree, I'm only going to pile on if I'm suffering from insomnia and am trying to avoid finishing my manuscript. If there are 100 positive comments and I think the place sucked, you'll be hearing from me. And if the restaurant happens to be owned by a friend, or a friend is the publicist, or the owner or chef is an eGullet Society member, or they gave me extra desserts and sucked up to me while I was there, but it also happens to suck, too bad. One less birthday party for me to attend.

I think there's some confusion here between food criticism and personal consumer complaints. Personal consumer complaints have little to do with criticism -- the art of evaluating or analyzing works of art (in our case food and dining experiences) or literature (per Merriam-Webster). A personal consumer complaint should, certainly in the first instance, be handled between the consumer and the business. Except in the most extreme cases, it's poor form to come online with a consumer complaint that one has made no attempt to resolve. Often, the resolution of a complaint has a happy ending -- I've had situations where the way a restaurant handled a mistake gave me a more positive impression of the restaurant than I'd had before. Only after all the standard remedies have been exhausted should someone go public with a complaint. Even then, the eGullet Society is not an organization dedicated to resolving consumer complaints. Rather, the eGullet Society is a culinary arts society, and everybody here is a member of that culinary arts society whose mission is to increase awareness and knowledge of the arts of cooking, eating and drinking as well as the literature of food and drink. In short, we are dedicated to culinary excellence. And one of the most important ways we get from here to there is through open and honest criticism. Not criticism as in "The restaurant lost my coat and wouldn't pay for it," but criticism as in discussions of the quality of food, the chef's approach and the other things that really matter. Yes, service is important too, and bad service should be called out, especially when it can be ascertained to be part of a pattern as opposed to a glitch. But there's a point at which that discussion dead ends, whereas the culinary arts discussion is infinite. There, if you're self-censoring and holding back, you're just trading expediency for excellence.