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[Fat Guy]

I wonder if any chefs "worthy" of copywrighting their work actually care to?

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.

Heston Blumenthal has started an online archive of his creations for the generations, Adria has published absolutely everything, WD can't be far behind on a book deal. These things aren't secret.

Copyright isn't about secrecy. To the contrary, publication is a requirement of copyright law.

No body is losing any money from this, customers aren't choosing to stay home in Australia instead of flying to Spain for dinner.

I'm not sure how this is relevant. Because Australia is far away, they should be allowed to copy everything and anything down there?

Food just isn't able give the full range of emotions to be a true or pure art.

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."

if it's done it isn't food anymore, it's art.

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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.

[joesan]

Steven - it's not "whining" just because it is an opinion contrary to yours.

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.

Seems to me this arguement is coming down to those who see the practice of gastronomy as a business and those who see it as civilising endeavour of mankind that is too important and fundamental to have the restrictions of commerce placed upon it.

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So there should be no copyright protection for art, literature or music either?

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My point is that calling it "whining" is unnecessarily pejorative to those peoples opinions and strikes a tone that is not required.

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.

I am not saying it's too hard - I am saying it is not a good thing to do.

Copyright for the other arts - perhaps yes. I think the super-extensibility of copyright can cause more damage than it is worth. There are many groups now arguing for a reigning in of copyright rather than an extension of it.

But really i don't think we should go off at too many tangents here Art, Literature and Music have some parallels but are not close enough too use in this arguement without leading us down some blind alleys.

I do also subscribe to the view that the good chefs do share - at least most of the ones at the top of their game do. And they seem to do well financially (judging by their cars anyway - Ferraris etc. ) Certainly those that publish get their rightful, and in IMO well deserved, kudos.

[Fat Guy]

But Fat Guy, I do not agree with you that it's a good idea to simply extend copyright protection to cuisine without first devising clear law that can be subjected to reasonable interpretation.

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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:

The history of copyright law has been one of gradual expansion in the types of works accorded protection, and the subject matter affected by this expansion has fallen into two general categories. In the first, scientific discoveries and technological developments have made possible new forms of creative expression that never existed before. In some of these cases the new expressive forms—electronic music, filmstrips, and computer programs, for example—could be regarded as an extension of copyrightable subject matter Congress had already intended to protect, and were thus considered copyrightable from the outset without the need of new legislation. In other cases, such as photographs, sound recordings, and motion pictures, statutory enactment was deemed necessary to give them full recognition as copyrightable works.

Authors are continually finding new ways of expressing themselves, but it is impossible to foresee the forms that these new expressive methods will take. The bill does not intend either to freeze the scope of copyrightable subject matter at the present stage of communications technology or to allow unlimited expansion into areas completely outside the present congressional intent. Section 102 implies neither that that subject matter is unlimited nor that new forms of expression within that general area of subject matter would necessarily be unprotected.

The historic expansion of copyright has also applied to forms of expression which, although in existence for generations or centuries, have only gradually come to be recognized as creative and worthy of protection. The first copyright statute in this country, enacted in 1790, designated only “maps, charts, and books”; major forms of expression such as music, drama, and works of art achieved specific statutory recognition only in later enactments. Although the coverage of the present statute is very broad, and would be broadened further by the explicit recognition of all forms of choreography, there are unquestionably other areas of existing subject matter that this bill does not propose to protect but that future Congresses may want to.

http://www4.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000102----000-notes.html

In 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.

[Fat Guy]

My point is that calling it "whining" is unnecessarily pejorative to those peoples opinions and strikes a tone that is not required.

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.

Copyright for the other arts - perhaps yes.

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 the super-extensibility of copyright can cause more damage than it is worth. There are many groups now arguing for a reigning in of copyright rather than an extension of it.

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.

I do also subscribe to the view that the good chefs do share

Many do, but it should be their choice.

[joesan]

Other than Inventolux I don't really hear many chefs asking for what you are trying to give them. What makes you think that they want what you are proposing?

[wesza]

Last night I watched my grand daughter perform in "Guys & Dolls" and after reading this thread again I thought how appropriate the song " Sue Me" was to it's application to this thread.

After being threatened to many times to mention thru the years being accused of copying various dishes that Chef's thought were unique enough to be proprietary it reminded me about our Attorneys responses to allegations.

In almost every instance we had no idea of exactly how the actual preparation of each dish was done, but my palette was such that I have almost always been able to come very close to copying anything described thru subtle variations without actually tasting the dish. Rarely did I actually need to taste the dish in person, but always could generally improve or break it down into a recipe or formula adaptable to our customers criteria.

I feel that almost anything being done today is not truly new, different or unique. Even though our list of ingredients, combinations and applications seems to be growing somehow I feel if it's edible it's probably been done before some where or some place.

Historically we haven't even come close in imaginative combinations to the dishes served in China, Europe, India or the Middle East, Africa or other places that we are aware about several hundred years ago.

It will always be feasible to improve on anything being cooked by a touch of this, or a little of that, timed my way or another way to improve any so called special dish to suit your customers taste. It's simply the magic of chemistry, touch and most important timing that makes something special.

So: Sue Me !

Irwin

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I felt that I had left out something I feel is important in my posting.

Just providing anyone with a recipe for any dish simple, or complicated doesn't mean it is easily duplicated. Almost anything done by a experienced Chef generally depends on the individuals timing and being experienced enough to marry all the ingredients together to attain the anticipated result consistently.

It requires intuition, timing and experience. In a competent kitchen, staff learns all the nuances required to duplicate this experience intuitively plus it's often checked by a expediter before being picked up by a server to deliver to the customer.

There award winning dishes I put together years ago that have had many attempts copied but to date none have even come close. Even when I provided recipes, since the finesse needed to put things together and finish off prior to being plated need to be acquired combined with the timing and utilization of cooking temperatures.

The only type of items that could be copy righted may be bakery formulas but even those may be constantly improved upon to become the next generations.

How often is anyone served dishes like a "Caesar Salad" or "Oysters Kilpatrick" that should be attributed to the source but as being served have evolved into something very different. I always prefer serving any classical dish as close as possible to the original. Anything else I require being placed on the Menu together with a simple explanation of " Our own adaptation of "Caesar Salad" or something similar.

Always respect any menu item that has stood the test of time long enough to be considered traditional.

Irwin

[Fat Guy]

Other than Inventolux I don't really hear many chefs asking for what you are trying to give them. What makes you think that they want what you are proposing?

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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.

[joesan]

Right - just a hunch - but I don't think a correct one as evidenced by the singular lack of vocal supporters.

Don't misunderstand my position. I am not saying that what these chefs do/create isn't worthy. Really and truly my position is quite the opposite. In fact few things matter more to me in life. It's very high up my hierarchy of needs.

What I am saying is that what you are proposing isn't needed, wanted or beneficial in toto to the art, and in fact would be counterproductive to the advancement of cuisine.

[Fat Guy]

needed, wanted or beneficial

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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.

[joesan]

Steven - the tone of my last post was a little terse for which I apologise. I do feel strongly about this but I am not intransigent and am open to reasoned arguement. You haven't persuaded me yet though, not by a long chalk.

I genuinely would be interested to hear some more chefs come out and say if they are in favour of it or not. I am not a professional chef and neither are you. We're informed observers at best so perhaps it is presumptious of us to opine on this. It would be interesting to hear more from the industry.

My biggest concern is that creativity would be hindered by your proposal. Can you address that concern?

[Fat Guy]

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.

[Pan]

Thanks for the quote from the House report.

[...]In 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.[...]

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No, but I am and have been suggesting that you start discussing them. I accept that it is just to provide protection for truly original culinary creations, but I do not accept that we should clamor for a legal extension of copyright without determining whether and how it would be practical and how the scope of the protection would be determined. So we need to see some discussion of what the limits of this extension of copyright should be and how the proponents of culinary copyright propose to define its scope.

I do have to say the suggestion that culinary copyright would damage creativity doesn't seem reasonable. I don't think that music copyright has damaged creativity. The one bad effect it's had is to make it difficult for ordinary musicians to perform contemporary works under ASCAP protection. When ASCAP approaches musicians who are playing recitals at a financial loss to work out terms of payment to ASCAP for performances of pieces they want to promote through performance, the reaction of these musicians is to simply stop performing such pieces. I know of at least one composer who is unhappy about that. The analogy would be that overbroad application of any future extension of copyright to culinary creations would cause many restaurants to take certain dishes off the menu (e.g., flourless molten chocolate cakes, Caesar salad, etc. -- to name a couple of dishes with apparently traceable parentage). That wouldn't damage creativity but would be bad for the diner.

[Fat Guy]

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.

[chankonabe]

Yeah, but really what is the point? Why do this? To be able to say "I invented this its mine" I mean really. Who's being protected and from what? From someone copying someone else? Cry me a river. FG you said this wasn't about money but is there any other reason to copywright something? It isn't for bragging rights. No chefs are losing any money over being emulated or even straight out ripped off. It's lousy and all that but isn't this all getting to be too much? I can see "underground" restaurants popping up all over where the food is "wickedly illegal" - shrimp noodles the new ortolan. I'll bet there is no support for this amongst professional chefs, especially among the names that have been thrown around on this thread. I think they would be seen as, I don't know...kind of traitors to copywright their techniques. Trends are trends, some people make them while others follow them

Edited April 10, 2006 by chankonabe (log)

[Fat Guy]

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?

[Swisskaese]

The bigger question is once they do have copyright protection, how are the chef's going to afford to police their work being stolen?

[sizzleteeth]

The bigger question is once they do have copyright protection, how are the chef's going to afford to police their work being stolen?

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They don't have to - you put a system in place like BMI or ASCAP that does it for them.

Actually Fat Guy - I wasn't implying it would be hard to put something in place - I was implying that ensuing clusterfuck after the fact is what should shoot this dead where it lays.

But, if it lives, I like your idea of excluding all prior art - meaning anything that existed before the system is in place is ineligble.

I also agree with Pan that strict definitions would have to be put in place.

Then you form a lobby group, shake some hands, get petitions signed to change the laws.

Then the system is easy - you license another copy of Invison Power Board and help the Government form the USCCA (United States Culinary Copyright Archive).

It works just like Egullet - except the moderators are Licensed Gov. employees with culinary degrees and a certain level of expertise determined by exam like becoming a Master Sommelier.

The Forums Titles are "Main" ingredients and each "thread" is a "dish".

The dishes get there by people signing up and paying a nominal fee to file online then they post a photo, full recipe including all technique in say, the Asparagus forum.

The thread is "Liquid Asparagus wrapped in Bacon Noodles".

The Moderators check against a database of "prior art" and the set rules and decide whether to let it "register" or delete the post because it does not qualify, an algorithm could be written to even do this automatically based on a point system like a FICO score.

Then from there it's king of the hill.

Anyone whom pays the fee and replies to the recipe thread whom can unequivocally "prove" they did this first knocks the previous person off and the last undisputed person in the thread owns the dish.

Prospective "creators" can search the "archive" for free before they start cooking.

Licensing grids could be put in place like Stock Photo websites do and people could license the recipes to use based on "terms of usage" so the creator makes money - or the creator could choose not to allow licenses.

And rights enforcing agencies like BMI could have restaurants pay a yearly fee "just in case" one of those dishes is made - just like music clubs do with BMI and ASCAP now. With the addition of an online spider component that searches websites for possible infringing menus and reg flags them to the agency.

No license, no payment and you're found in infringement? Well..... that's now a crime punishable by fine or upon multiple offenses - jail time.

Get along now... we have work to do.

edit:

P.S. while you guys get started on that I'm going to Incorporate the world's first official Major Culinary Label, I'll use your system to find promising chefs and "Sign" them and give them advances to open their restaurants. If you sell alot of units you're gonna be rich and famous baby - I'll meet you on the Yacht for cocktails... if you're not popular and you don't sell - tough luck Jackson. I'll keep my eye on the trends and give the people what they want at any given juncture and you better hope my marketing budget isn't bigger than yours cause then, well, hey it's all just business.

Edited April 10, 2006 by sizzleteeth (log)

[sizzleteeth]

Actually the more I think about it the better it sounds.

This whole thing would make being a "Cover Chef" OK.

Just think about a restaurant called "The El Bulli Experience".

Or chefs could just cook cover dishes in dive restaurants for all the free beer they can drink and a cut of the door.

Every era of cuisine would become even more categorized by label, Nouvelle cuisine would be like 70's Rock, Avant Garde Cuisine would be split into sub categories based on year like 80's Big Hair Metal, 90's Post Modern Rock.

It just gets better.

Like when we all dressed like early Van Halen David Lee Roth, I mean.. maybe you didn't.

Edited April 10, 2006 by sizzleteeth (log)

[sizzleteeth]

oops... got too excited and started quoting myself

Edited April 10, 2006 by sizzleteeth (log)

[inventolux]

oops... got too excited and started quoting myself

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Thats usually what happens when one decides to completely shut out any hint of problem solving and then becomes part of the problem. Do you have any ideas that can solve the problem or do you just plan on ridiculing our search efforts?

I realize debate is essential here but the hair band thing (while it is funny) is simply disrespectful and taking this into a child like direction.

[sizzleteeth]

Thats usually what happens when one decides to completely shut out any hint of problem solving and then becomes part of the problem. Do you have any ideas that can solve the problem or do you just plan on ridiculing our search efforts?

I realize debate is essential here but the hair band thing (while it is funny) is simply disrespectful and taking this into a child like direction.

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It wasn't disrespect it was satire - and meant to be ridiculous - it's not like I want any of that to happen - but that's the direction I see this moving in.

The solution I provided above, with some modification, would actually work - it wouldn't be much different than the US Patent Office or BMI or ASCAP or Stock Photo Websites with contributors and licensing. Those are all very real things and very serious things happening right now.

The kind of BS I'm making fun of is the exact reason I quit "the music business" and started cooking and I don't want to see any of this happen to cuisine.

In the other thread you said:

"I dont think that by registering specific dishes in some sort of culinology copyright system is going to do the food world any good."

http://forums.egullet.org/index.php?showto...dpost&p=1168359

You rail against the practice of big business but there's a big full page photo of you in this month's Restaurant Hospitality with a big Nestle Food Services Logo and "Sponsored By Nestle".

So which is it? Where exactly do you stand?

Because like I said before I see a-lot of contradiction.

[Fat Guy]

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.

[sizzleteeth]

This isn't a debate between entrenched interests. This is much more of an open discussion and exploration.

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Allright - I can accept that - but I'll say that your viewpoint seems pretty entrenched to me, but

so does mine.

there's just too much going on to handle with anything less then a specialized licensing process.

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That's more or less the argument I was making earlier in regards to culinary copyright in my "population of the world cooking" example, not so much that it can't be done - but that it will be a monster.

I really don't see how you can see music this way but not what you are proposing - I personally think it would dwarf music copyright in scale.

But then I think we have different interpretations of "original culinary works".

I've probably contradicted myself somewhere - maybe even on purpose to make a point.

[Fat Guy]

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.

[butterscotch]

Steve, Is there an industry organization that you envision possibly assisting in this effort? When it comes down to deciding on what exactly is infringement, I'd imagine the experience of seasoned industry professionals would be invaluable. They could also be useful perhaps to assist in arbitration.

Could you imagine them willing to get involved in ethical disputes, or do you think this would conflict with their normal aims (which would, i imagine be more along the lines of promoting the industry)?

A similar movement is afoot in the fashion industry. (I'm thinking this is a result of retailers more and more becoming their own maufacturers- copying form designers instead of buying from them.) I'm wondering if there will be any lessons to be learned there. There are similarities, are you using the same materials/ ingredients and the same process to put them together for the same looking end result....well, then there you are, copying.

The CFDA (Council of Fashion Designers of America) is involved. There's a bit about it in this Slate article. Says fashion may be the last creative business to board the bus for "Lawyerville". Maybe, maybe not.

http://www.slate.com/id/2137954/?nav=tap3

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.

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