Sincerest Form

[Fat Guy]

I think it's more comfortable to think that the copying was necessitated by a lack of creative ability, but the evidence doesn't support that position. The chef in question appears to be talented and creative. Look at the elaborate tasting menu being offered right now. I haven't cross-referenced it against the menus at every other avant-garde restaurant in the world, but prima facie there appears to be plenty of creativity and skill there. The restaurant's accolades were earned at least partly (and probably mostly or even completely) on merit. That's a large part of why this plagiarism episode is so tragic: because it didn't have to happen.

Freeze Dried Pina Colada

Carrot, Cardamom, Orange Rind

Baby Squid, Garlic Flowers

Veal Sweetbread, Aged Goats Cheese

Jerusalem Artichoke and Tonka Bean Cream, Dehydrated Bacon

Tomato Explosion

Scallops, Chestnut, Malt Froth

Corned Bison, White Sauce, Salsify

Warm Garfish, Escabèche, Citrus

‘Bacon and Eggs’

Organic Duck, Parsnips, Bitter Chocolate

Pave of Flounder, Grapes, Sorrel

Dry-Aged Beef, Braised Pistachios, Hot Spiced Jelly

Roquefort, Grape, Walnuts

Rosewater Brulee, Greengages

Caramel Popcorn Icecream

Frozen Dandelion and Burdock, Burnt Almonds

Frozen Carrot Shavings

Petit Four with Gravity Coffee

[joesan]

Reachej - we're singing off the same hymn book.

FG - I now understand your nuance and we're back on the one true shining path of accord.

Except maybe I don't quite agree about those who plagiarise seldom needing to.

[joesan]

The menu above looks nice but nowhere near as avant garde as the one before with the Molecular Gastronomy Greatest Hits.

(Also could "Bacon and Eggs" be like Heston's? Now that would be an interesting one!)

[RyuShihan]

So how long till a menu becomes public knowledge and anyone can duplicate it?

[butterscotch]

i've been wondering the same thing.

i think most people feel it's okay if it's one thing on the menu and credited to the originator. of course then it must be done well. and it's doubtful any chef would make up a menu with others chefs names on every other dish, that would be embarrassing. so, doing the right thing would tend to prevent the kind of situation that occured here.

i also think if you are going to take others' work and tweak it, appropriate aknowledgements should be made in interviews, press releases, etc- where ever the chance arrives to describe the cuisine it would be only fair to cite inspiration somewhere people who cared to know could easily find it.

i think the major courtesy is not to falsely compete for the same customer, or steal another chef's thunder by presenting new, not well known works to the same market- thus increasing the possibility of confusion. By the same token, i think it's okay to use a published recipe as is- with attribution- because it's out there, the chef has chosen to share it for PR value instead of making it a "secret recipe" , and now anyone can make it. But of course it's not nearly as exciting for the same reasons.

So how long till a menu becomes public knowledge and anyone can duplicate it?

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and fat guy,

it's occured to me that this chef might have put himself in a postion where plagerism felt all but necessary by biting off more than he could handle. i seem to recall he had commited to an extrodinarily large menu, to be changed quite often. i think it could be possible he had intended to only use those dishes as a jumping off point, and was overwhelmed by the goals set, time contraints, etc. it could also be a bit of insecurity after all the attention or a temporary burnout.

i'm just thinking out loud here. for me, the most interesting part of this is the why? and i still just don't get it.

[butterscotch]

The menu above looks nice but nowhere near as avant garde as the one before with the Molecular Gastronomy Greatest Hits.

(Also could "Bacon and Eggs" be like Heston's? Now that would be an interesting one!)

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i was thinking more like maggie the cats. that's some good stuff.

[aussiechef76]

interesting write up in the age www.theage.com.au

[joesan]

In the Age article there's a quote from an owner of some restaurants, one of which is called Livebait. Interesting unique name.

Oh no hold on... there's a chain of restaurants in London that have been here for years. They're called - you guessed it - Livebait. Sincerest form again for Melbourne?

Edited April 1, 2006 by joesan (log)

[joesan]

...and another one is called Mo Mo. One of London's formerly hip places is a little place called Momo.

[shaunbyers]

im puzzled by reading this whole thread, which has taken a couple of days to do, to copy someones dish word for word as your own is plagerism and shouldnt be done. but to me cooking is all about learning new techniques on how to do things, and as chef or cooks we are obliged to pass on our knowledge to the next next generation and to our peers. so i dont get how you can patent methods or techniques.

now i have a question what if you go out and eat a dish, and you think wow i like this part, and could improve on the rest of the dish. so you change the whole dish except for a small part how does this fit in with this topic?

[MaxH]

I should mention a flip side to this whole subject (because I haven't seen it surface in this thread although, lacking the aforementioned couple days to do so, I haven't read all the middle pages).

I saw an eG thread a couple years back that accused a restaurant of plagiarizing an unusual appetizer dish. The details are extremely unimportant, what is important is that the discussion developed at length, among people who had not visited or talked to the accused restaurant, or otherwise "fact-checked," and therefore were unconscious that the place was known for crediting the source and paying homage to it. After this emerged, most of the people throwing the notions around apologized with grace; the subject died quickly, with no long searching discussion of ethics or fact checking, i.e., of how the problem arose. Again it's only a passing illustration, but that this particular Ockham's razor cuts both ways.

[PCL]

For those that may have difficulty finding the article in The Age website, the direct URL is http://www.theage.com.au/news/epicure/is-c...3441339484.html

It is interesting that they did not pick up on the Heston Blumenthal references with regard to Fenix... no comment then I guess.

[nathanm]

This is a very interesting thread, which I only just discovered. My business is inventing - I won't waste space on describing it further but here is a recent article from the Boston Globe on my company. I am a big support of inventor's rights - here is an op ed I wrote that ran in the Wall Street Journal last week. I also post to eGullet quite a bit on sous vide and other high tech cooking techinques.

Can you patent a dish? Absolutely you can, but most chefs won't want to unless the right situation exists for making it economically sensible. A good example is Dippin' Dots - a patented ice cream novelty product sold in kiosks and dedicated stores. Curt Jones, the inventor, has a patent and has made some money on it (but more on the story below).

Many commercial food processes by Kraft, Nabisco, Nestle or other big food companies are patented. If you have an idea that might be commercially viable at that sort of scale, and it is

Most high end chefs probably shouldn't patent what the do because the market is too small and too hard to collect. It costs $10K to $20K to get a patent in the US, and then approximately that much again in every other country. Could Wylie patent his shrimp pasta? At this stage probably not because it has been public for so long (in general in the US you can't patent more than a year after the invention is published). But even if he had patented it, and even it was truly novel in the patent sense (which is different than being novel in the restaurant world) he would only have US rights. Would he have spent the extra money to get an Australian patent? It's very hard to argue that. How much shrimp pasta will Australians eat?

Michel Bras is generally credited with creating the "molten" center chocolate cake. If he patented it (which would assume that it really was novel enough), and if he got the patent worldwide, and if he convinced every restaurant that makes it to pay him say $0.10 for each serving, then he'd make more money from it than he does from his restaurant. But that is a LOT of ifs strung together. It would have cost him upwards of $100K or more to file in the major markets. Then he would have to convince chefs to pay him - which would be a major undertaking. Practically speaking it wouldn't make sense.

Copyright and trademark are also means that one could concievably use to protect a dish. As one example, a number of iconic builidngs in New Yorky have copyright or trademark protection - for example the Chrysler Building, or the New York Public Library. They won't go after tourist snapshots but they will claim rights to any commercial use - for example advertising photos.

A food example is Roquefort cheese - you can't call just any blue cheese "roquefort". Within Europe there has long been an "appellation contrlee" or similar concept regarding naming a food product from a place. International law recognizes these trademarks, including the right of non-Europeans to file their food trademarks in Europe (see here). Roquefort is a protected trademark in the US - if you serve a salad dressing in a restaurant that you call "roquefort" on the menu when in fact it is Maytag Blue, then you're in violation and in principle you could be sued.

However, to get copyright or trademark protection, one has to register - it is not as expensive as a patent, but again WD50 and Alinea would have had to go through the registration process to claim actual legal protection.

Which takes us back to Dippin' Dots. They are currently embroiled in a lawsuit with two competitors on a combination of patent and trademark claims. The interesting thing is that Dippin Dots is claiming trademark protection on the "trade dress" - i.e. the general look and presentation, which is very similar to the case with Interlude. However, there is an interesting twist to the case, which is that the DD competitors claim that some of the features DD asserts are "trade dress" are in fact mentioned in the DD patent as being "functional". So it is an interesting case where patent law and trademark law collide. If you care about these things here is a legal brief that describes it - it is quite readable.

Trade secret protection is also available for culinary creations - the most famous example is the secret formula for Coca Cola. This is another topic unto itself so I won't go into it further here.

The practical matter is that legal protection for a new dish is available, but it is expensive and rarely makes sense economically. If you want the protection you have to register and file patents, copyright or trademark. In the case of patents, the invention has to truly be novel according to patent office rules on prior art and obviousness. Any chef (or eGullet-er at home) that has an idea that really has commercial potential at large scale should probably consider legal protection. But if you don't file the patent (and pay for it) then you can't later claim rights.

That's the legal and business side. There is also the question of moral and ethical outrage. Like it or not novelty and innovation has become a key element in a certain segment of the food world. As a previous post said, WD50 is not only a place you go to refuel when you are hungry, its a center of culinary innovation. Wylie, Heston, Sam Mason, Grant Anchatz and Ferran have staked a large part of their reputations and their professional standing on their originality.

Clearly every chef "stands on the shoulders of others" as Wylie was quoted. Actually this is paraphrasing a line by Issac Newton "if I have seen further it is by standing on the shoulders of giants". Of course Newton today is viewed as a giant himself. And although his quote sounds magnanimous, he bitterly contested credit for discoveries with his contemorary rivals, inculding Robert Hooke and Gottfried Leibnitz.

There is a somewhat ill defined, but nevertheless real line between learning from others and directly copying a dish and its presentation. Many of the posts try to explore that and ask where the line is. You can quibble about the gray area but Interlude clearly seems to have crossed the line, wherever it is. It seems amazing to me that Chef Robin could be so blatant in his copying without acknowledging that he copied them wholesale. He's made an ass of himself among his peers.

What amazes me about this is that this kind of cooking is not easy to do (I've tried!), If he can really execute them well (the photos look like he can) then why couldn't he either acknowledge the origin, or make up his own. Anybody who can execute these surely could come up with some of his own dishes. How could anybody who cares about this kind of food just copy and think that he wouldn't be at the center of a firestorm of criticism?

I recently came up with a new technique and told a couple chefs about it. The immediately asked me if they could use it - I said yes, but I was honored to have been asked. Especially since I have learned a lot from them in the past.

As another post suggests, El Bulli is at the forefront of the trend in two ways. First because Ferran is so creative he is likely the most influential chef in the world - at least in terms of being copied. The fascinating thing is that in addition to his cusine he has also gotten the jump on the rest of the industry by publishing his recipes annually.

In academic circles the way you get credit (and thus a kind of ownership) is by publishing first. Tenure in a university, or the Nobel Prize hangs in the balance so academics have an urgency publish new results to avoid being scooped by a competitor. Academics like to say to say that they freely share ideas, but that sharing only takes place AFTER they have been published and credit for publishing has been established. The race to publish helps settle disputes on who came first, and gives everybody incentive.

Chefs typically haven't done this. Periodically they will publish cookbooks or recipes but the idea of rushing out in print just hasn't been at the forefront. Ferran Adria has taken the lead here in committing to publish a new book every year at the end of the season. Adria also dates his recipes - so there is Omlete Suprise 2003, for example, reinforcing the idea that the dish is from the 2003 season - very much like the concept of a "model year" for cars. I have talked to several chefs that have some heartburn about this - they feel that it puts a lot of pressure on them to do the same, and perhaps to disclose things that they'd rather not disclose.

Unfortunately you can't have it both ways. If you want to be known for being first with new ideas, then it will be hard to resist a push to publish in this fashion, and also to give credit to others, with an ethical system on plargarism similar to what you find in academics or journalism.

[Fat Guy]

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.

[bleudauvergne]

In academic circles the way you get credit (and thus a kind of ownership) is by publishing first. Tenure in a university, or the Nobel Prize hangs in the balance so academics have an urgency publish new results to avoid being scooped by a competitor. Academics like to say to say that they freely share ideas, but that sharing only takes place AFTER they have been published and credit for publishing has been established. The race to publish helps settle disputes on who came first, and gives everybody incentive.

Nathan does bring up many good points to ponder upon. My question is what would be the restaurant equivalent of publishing a dish.

[cdh]

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.

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Copyright can and should be ignored in this context for the simple reason that the statute enumerates the forms protectable expression can take, and food is not included amongst them*. Calling a dish a sculptural creation is about as close as you can get, and that would only protect its visual appearance, and not its constituent parts. Extending copyright to a culinary dish would require congressional action.

* See here for the list.

[docsconz]

In academic circles the way you get credit (and thus a kind of ownership) is by publishing first. Tenure in a university, or the Nobel Prize hangs in the balance so academics have an urgency publish new results to avoid being scooped by a competitor. Academics like to say to say that they freely share ideas, but that sharing only takes place AFTER they have been published and credit for publishing has been established. The race to publish helps settle disputes on who came first, and gives everybody incentive.

Nathan does bring up many good points to ponder upon. My question is what would be the restaurant equivalent of publishing a dish.

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Having photos and a description posted on eGullet?

Why not?

[Fat Guy]

Copyright can and should be ignored in this context for the simple reason that the statute enumerates the forms protectable expression can take, and food is not included amongst them. 

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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:

These categories should be viewed broadly. For example, computer programs and most "compilations" may be registered as "literary works"; maps and architectural plans may be registered as "pictorial, graphic, and sculptural works."

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."

[nathanm]

My point wasn't to eliminate copyright as an alternative - it probably is one, but I think that it is fair to say that using copyright is not traditional or established in this area.

One could make a copyright argument, and if you sought to enforce it you may be making new caselaw. But it is possible. The registration is cheap - but you generally have to do it, and/or mark it. So, the menus would have to say "Culinary creations copyright © 2006 all rights reserved" or something like that. It is unclear that an Australian chef would be legally bound by that appearing on a NY or Chicago menu without additional registration in Australia.

The key issue with copyright is that you'd be making a new argument (at least new to me). Likely it would be viewed with suspicion by the plagarist. So, you'd better be prepared to make that argument in court. So while the initial registration is cheap, the fact is that actually getting the proteciton would likely involve a court battle that would not be cheap.

This is exactly what happened in the past with copyright protection of software - it wasn't traditional, somebody sought it, then proved it out in case law to the point that it is well established now.

Patents on the other hand are expensive up front. But patents on food items are well established for more than 100 years so nobody is going to contest on that grounds.

I don't think that point here is legal protection. Legal protection in many forms DOES exist for culinary creations. Exactly which forms apply depends on the case and the situation, and your budget.

High end chefs need to think about the mass market appeal of what they do. Shrimp pasta may or may not become the next big thing. But Dippin' Dots (creme anglais squirted into liquid nitrogen) is actually very similar to something that could come from Ferran or Wylie.

The situation with Interlude is more of an issue of plargarism and bad ethical behavior. It seems unlikely there is a legal case against him, but he acted badly and should be censured by the community of chefs for this. The guy could easily have created his own dish - inspired by the others. Or even easier yet, he could have given attribution - as was pointed out above that costs nothing.

[nathanm]

Nathan does bring up many good points to ponder upon.  My question is what would be the restaurant equivalent of publishing a dish.

←

Having photos and a description posted on eGullet?

Why not?

←

There are probably two important levels of "publishing" a dish. One is to show the dish and its ingredients to the world - and I think eGullet or other web means are fine. "publishing" in this context means having it appear in a permanent record with a date.

Many chefs will have pictures taken of a dish or have it appear in a travel magazine article.

The problem with just a picture is that people can then debate the question of how to do it, and can come up with lots of different ways.

The more serious verison of publishing a dish is to give the recipe - enough so somebody could make it. That is what a patent is supposed to be - you disclose the secrets in return for getting a temporary exclusive. That is also what scientific and academic publishing is about - you have to show how you got the data and publish the data so that others can reproduce the results.

It is the latter approach that Ferran Adria is doing - he publishes photos and the recipes.

[cdh]

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."

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Read on to the bottom of the section where it says

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

Making a dish is certainly a process, arguably a procedure, and it might be a concept.

[docsconz]

Nathan does bring up many good points to ponder upon.  My question is what would be the restaurant equivalent of publishing a dish.

←

Having photos and a description posted on eGullet?

Why not?

←

There are probably two important levels of "publishing" a dish. One is to show the dish and its ingredients to the world - and I think eGullet or other web means are fine. "publishing" in this context means having it appear in a permanent record with a date.

Many chefs will have pictures taken of a dish or have it appear in a travel magazine article.

The problem with just a picture is that people can then debate the question of how to do it, and can come up with lots of different ways.

The more serious verison of publishing a dish is to give the recipe - enough so somebody could make it. That is what a patent is supposed to be - you disclose the secrets in return for getting a temporary exclusive. That is also what scientific and academic publishing is about - you have to show how you got the data and publish the data so that others can reproduce the results.

It is the latter approach that Ferran Adria is doing - he publishes photos and the recipes.

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This is precisely what I meant when I suggested a description of the dish in addition to photos. I suppose a recipe is a more specific term than description, but the idea is the same. While Adria's books are wonderful chronicles, they are probably very costly to produce and beyond the reach of most less well-established chefs. The interest in his work is great enough that they probably recoup most of the expense if not actually make a profit. I doubt that would be do-able for the majority of chefs. eGullet or something like it presents a much more affordable alternative and actually lies within the mission of the organization as I see it. In fact a number of chefs have either directly or indirectly recorded their work here on eGullet already. Some who come to mind as being particularly well documented here and/or elsewhere include Grant Achatz of Alinea, Shola Olunloyo of Studio Kitchen and Alex Talbot and Aki Kamozawa of Keyah Grande with their ideasinfood blog.. Indeed this is a good way for some people to get on the radar with their work.

[Fat Guy]

Making a dish is certainly a process, arguably a procedure, and it might be a concept.

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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.

[Fat Guy]

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.

[cdh]

OK. Where is the line between protectable culinary expression and process, procedure and concept? Any judge who you ask to create this nasty piece of precedent will ask you that... I'd like to hear it too.