Gastro Nomos

I recall some months back when this ban was first proposed. It seemed to die without much debate. Does anyone know how the issue got brought back up? Was anyone aware that a vote was imminent? Is/was there a group opposing the ban? I live in Chicago and would be happy to be in contact with others who would like to respond to this. It may not be too late.

The outright ban strikes me as particularly short-sighted. If the council is concerned about the humane treatment of ducks and geese, why not establish a moratorium on foie gras for the next year or so, leaving it up to producers to prove that their methods are indeed humane or to adopt methods that the council accepts as humane? This is closer to what has been attempted in California with f.g. and with Caspian caviar. In the latter case it was an issue of sustainability rather than humane treatment, but the logic still applies. I don't think any f.g. lover would mind if producers were encouraged to use the most humane methods possible. Maybe the producers could make their case, maybe not. But it would be far more reasonable than this ban.

Isn't this the case for all media? Someone creates something new and profitable, e.g. The DaVinci Code, The Backstreet Boys, &c, and others copy it. It's not unique to fashion or food. We must decide whether we really want to discourage copying because it is having deleterious affects on creativity. Some people may be put out of business because of copying, but by and large we have more choices of what to read, hear, wear, and eat than ever before. As my copyright professor used to say, "Money is no man's muse." Those who are truly creative, who "promote science," rarely do so for the economic benefits they might accrue. We want our policies to make sure that these people can continue to do their work and that creative endeavours remain attractive, but as long as people are still joining these fields and creating new works, that is all copyright law should care about. If we think that there will be a mass exodus from the cooking profession and a failure of creative spirit, then we might need to address the problem legally. But not until then.

It could be a disaster, but it might be a different, and even worse, one. If chefs were given copyrights in their dishes, they would be able to transfer those rights to others, including the owners of their restaurants. Chefs would want to do this to secure financial backing, and owners would be interested because they have a more serious financial incentive to dissuade copiers. Although chefs might rarely end up in court defending their copyrights, the owners of restaurants (including corporate owners) would be very likely to sue. Such suits wouldn't be limited to competitors, however. If a chef sold his copyrights to the owner of his restaurant and then left that restaurant and started a new one, he would be subject to suit if he made any of the same copyrighted dishes. It's one thing for chefs to police their own creations, but it's entirely different when policing is left to corporate owners outside of the creative process.

Chef, Thanks for the thoughtful comment. I'm very happy to be able to continue this discussion with you. Chefs like you are leading a revolution in protecting processes under the patent regime, and it's a wonderful thing. Patent law, although it has its faults (see the interesting discussions of using genetically modified seeds), is a great tool for inventors like you to control the dissemination of their techniques. For a variety of reasons, however, most chefs will not be able to take advantage of the patent regime to protect their dishes - very few dishes that don't rely on new techniques can pass patent law's high bars of novelty and non-obviousness. Other cooks either can't afford to or don't want to invest in the kind of research that you do to create patentable techniques. The question then becomes whether their individual dishes, not the techniques used to make them, receive formal monopolistic protection under the copyright regime. As I've stated, I tend to think that there are plenty of non-legal factors to protect cooks' creations. Chef, do you think that these non-legal methods of protecting expressive creativity (i.e. in the look, style, and taste of dishes) is sufficient to meet chefs' needs? Do fora like this message board help? Aren't these methods more efficient than formal legal processes? Thanks again for the response.

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. ← Fat Guy, you are absolutely right that the major premise of IP law (at least since Judge Posner has begun thinking about it) is that creative publication is encouraged by federal protection. This may (or may not) be true of a number of media, but there are some media where the premise fails to give an adequate description of what is going on. Consider the fashion industry. Despite a complete lack of copyright protection, the fashion industry has been incredibly successful both creatively and economically. Fashion designers exist is what one might call a "low IP equilibrium," where they are successful without strong IP protection. This is so for a variety of reasons, including some that do not affect other media. The same is true for food. People have continued to join the industry and chefs have created new dishes for generations without strong IP protection. In these cases then, the premise fails. The interesting question here is why. For food, one might look to the strength of non-legal norms in protecting creativity, such as this forum's use of photographs to allegedly expose copying. 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

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. ←

Maybe so, I expect to be taken apart for everything I've said - so let it commense. But regardless of what comes - I stand by my point of view. ← Perhaps it's worth specifying the way that copyright law protects original works. Original, in the copyright sense, means the individual conception of that author. This is different from original in the general sense, which means never before existing (this is the novelty standard of patent law). This means that copyright law will protect my creation of "oysters and pearls" if I had never heard of Thomas Keller's version. So perhaps you should specify which recipes deserve protection: those that are original to the author (the copyright sense) or those that are novel (the patent sense) or both.

I have been a reader of eGullet for a while, but this is my first post. I am currently working on a law review article that deals with intellectual property protection for recipes. As some have already noted, American courts are rather hostile to the notion that recipes can be copyrighted. They tend to view them as functional processes and therefore within the proper scope of patent law. This is, as some members here have suggested, entirely bogus and mistakes the true nature of dishes and recipes. The dish is a medium of expression for the cook which can then be, in the copyright discourse, "fixed in a tangible medium of expression," i.e. the recipe. Viewed in this fashion, the recipe is more akin to a musical score - a series of instructions for performing a work - than it is say a method for drawing pictures in linear perspective or a set of steps for efficiently creating medicines. Why have courts, and our culture in general, not recognized this? I have a number of theories stemming from aesthetic theory, the cultural status of cooks and cooking, and the behaviors of cooks themselves. I'd be happy to explain, but I'd like to know if anyone else has any ideas. For me, the most interesting thing is that cooking has done just fine without copyright protection. People continue to go into the field, new restaurants open, and while many of them fail, gastronomic creativity abounds despite formal protection. If this is so, and if most cooks don't feel very strongly about having monopolies on their recipes, should we really be so quick to give them monopolies, even if copyright law would, legally speaking, allow it? My answer, and, for what it's worth, Thomas Keller's answer, is no. Sorry for the lengthy post. Thanks for allowing me to join the conversation.