Sincerest Form

[Fat Guy]

I imagine a coalition of groups would need to be formed. IACP (International Association of Culinary Professionals) would be a logical core participant. There are also many other gastronomy groups that are more specific by subject-matter and region. If, however, the traditional industry groups lack the imagination to think in these terms, there's always the eGullet Society, and also the various avant-garde and molecular gastronomy groups would be important participants -- much of the affected work comes from them.

[nick.kokonas]

Just as millions of people play music every day for their own enjoyment without infringing on copyrights or patents -- I was just playing guitar myself at home -- so too can millions of people pick up cook books and make recipes at home without infringing, or watch a chef on TV and then copy the technique.

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.

The issue here isn't a transfer of knowledge, or the fact that a few billion people cook meals everyday. The issue here is copying the work of someone else and then utilizing that without acknowledgement or permission for financial gain.

I am not advocating that chefs begin copyrighting or patenting various dishes, but it does seem strange that we can get design patents and copyrights for the Alinea serviceware seen here, but can't get protection for the foodstuffs that are presented by those pieces. The process of creating them both is nearly identical.

At the very least a system as proposed by Fat Guy would allow for proper pubic attribution of a chef's work, which may not itself carry much intrinsic value, but which might offer tangential benefits -- many well beyond the ego variety.

[sizzleteeth]

Just as millions of people play music every day for their own enjoyment without infringing on copyrights or patents -- I was just playing guitar myself at home -- so too can millions of people pick up cook books and make recipes at home without infringing, or watch a chef on TV and then copy the technique.

The issue here isn't a transfer of knowledge, or the fact that a few billion people cook meals everyday.  The issue here is copying the work of someone else and then utilizing that without acknowledgement or permission for financial gain.

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In offering that example Nick I wasn't implying that home cooks would be infringing by making recipes at home, I was implying that copyright applies to everyone - not just professional writers or people selling books - everyone. Regardless whether they ever sell anything or not.

So yes, stealing others work for financial gain is AN issue - but it's not THE issue.

Stock photos are a great example, if you use a stock photo on your website without buying a license for it - it doesn't matter whether you sell anything or not, it's public display or in the case of music "public performance" of another persons work.

Money has nothing to do with copyright - copyright is about ownership of your own work - money is an afterthought.

I feel you guys aren't giving the world of cooks out here much credit, Fat Guy seems to imply that most original works would be coming from "Molecular Gastronomy" and you and others seem to imply that only chefs would benefit from such a system.

I feel that is simply untrue.

An original work, simple or not, is eligible both for patent and copyright, just look at paper clips - brilliant idea, simple idea, easily executed idea, massive impact.

The same applies to cuisine... simple or not, Avant Garde or not, do you think Thomas Keller's work is worthy of copyright?

If you can copyright a "Molecular Gastronomy" dish then you can copyright a unique BBQ sauce recipe - that's just the way it is.

Hundreds of thousands upon hundreds of thousands if not millions of "cooks" have their "secret family recipes" and recipes they would consider "original" or "their own". They are all passionate, hard working, some work in restaurants, some don't, some cater, some do other food related things, some are just serious home cooks.

I want to be around when someone tells them they are not good enough.

It's not just that chefs should be able to protect their recipes from chefs, if it's anything it's that people should be able to protect their recipes from other people - that includes the dynamic of chefs protecting their recipes from giant food companies and serious home cooks protecting their recipes from chefs and restaurants.

That is how copyright works - small guy and big guy alike, chef and me, Nabisco and you.

If you wrote a song on that guitar you were playing and recorded it on a tape deck, it's yours, whether I make money playing it or not, it's still yours.

Doesn't matter your level of proficiency - if you play like Hendrix or like my little sister.

Edited April 11, 2006 by sizzleteeth (log)

[sizzleteeth]

Speaking of playing like my little sister, that brings up another point, objective perception of what is "good" or "better" than something else in this issue is irrelevant.

I happen to think that an album by The Dazzling Killmen called "Face of Collapse" (though the short samples on this site are crap) is one of the finest pieces of music ever laid to tape, makes my toes curl after 10 years when I listen to it - a sentiment that approximately .002% of you will agree with and some would even argue that Brittany Spears is better.

Instrumentally these guys make most bands sound like little girls playing tinker toys and their music is often described in terms that reminds me of descriptions of Avant Garde food:

Dazzling Killmen's songs are constructed as huge open spaces that need to be crammed with energy-- any energy. Melodies and grooves appear to be stuffed next to others , all bouncing off the walls. They're not linear melodies that arrive predictably in their neat little spaces. Rather there is a center to each song and in this space the band attempts to reach it from different directions. A phrase appears for a moment then vanishes and orbits around the next phrase, hovering and waiting for it's next approach. Sometimes this center is the magnet that holds the whole sheebang together. At other times the center cannot hold and the space collapses. It's during these moments that Dazzling Killmen floor me. Their rapid fire jerks, so precise and measured occur in succession at tremendous velocity. The band, tightly wound and compressed like a brickwith phrases in and out from the hub like a roman candle.

The point I'm trying to make is... fuck what you think is the best, and for that matter - fuck what I think is the best.

We're both wrong.

Fat Guy is wrong.

My little sister is wrong.

The Pope is wrong.

Edited April 11, 2006 by sizzleteeth (log)

[Fat Guy]

If you can find someplace where I said so-called molecular gastronomy is "better" than other types of gastronomy, please point to it.

I believe what I've said, several times now, is that creative, molecular, avant-garde or what-have-you gastronomy is by its nature going to give us more in the way of "original works" than what might be called "traditional and contemporary cuisine" if we define original works to exclude most prior art, ingredients in their natural or near-natural forms, repertoire recipes and the standard range of adaptations, and anything else that is common knowledge.

This whole discussion didn't happen until the culinary avant-garde forced it, because the mechanisms and processes that produce avant-garde culinary works represent a break from traditional and contemporary cuisine. Concepts are explored in a laboratory/studio/workshop environment, creations are purposefully original, the emphasis is more akin to what we'd see in many of the visual arts today.

Do I think the work of Thomas Keller would be protected? Some of it, surely. There is plenty of originality there. But most chefs aren't creating anything original, not because they're "worse" but because that hasn't been their emphasis. Whether that state of affairs would be different if, in 1870, cuisine had come under the protection of the copyright laws will never be known.

So I think after 13 pages of this topic we may have finally caught up to the first paragraphs of the Daily Gullet editorial that started it. I recommend it to anybody with an interest in the subject matter:

In the days of Escoffier and classic haute cuisine, there was little controversy surrounding the simulation and proper execution of what appeared on the platter. Haute cuisine meant copying the dishes of Escoffier as faithfully as possible; the closer you got, the better you were. This approach was universally accepted, understood -- and appreciated.

Maybe it started with nouvelle cusine, maybe earlier. Perhaps the genesis of today's avant-garde movement gave it real focus. But there's no denying that traditional culinary attitudes have given way to advancement, augmentation and innovation. Among avant-garde restaurants and chefs, revolution is the norm. A laboratory milieu, an atmosphere of culinary invention, and careful documentation has permeated the professional kitchen. Online food media like eG Forums encourage diners to distribute photographs of new dishes found the world over -- within hours of their capture.

Our understanding of culinary ethics has not kept up with this evolution.

[sizzleteeth]

I believe what I've said, several times now, is that creative, molecular, avant-garde or what-have-you gastronomy is by its nature going to give us more in the way of "original works" than what might be called "traditional and contemporary cuisine" if we define original works to exclude most prior art, ingredients in their natural or near-natural forms, repertoire recipes and the standard range of adaptations, and anything else that is common knowledge.

This whole discussion didn't happen until the culinary avant-garde forced it, because the mechanisms and processes that produce avant-garde culinary works represent a break from traditional and contemporary cuisine. Concepts are explored in a laboratory/studio/workshop environment, creations are purposefully original, the emphasis is more akin to what we'd see in many of the visual arts today.

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I saw that coming Fat Guy - so I had a reply ready.

Allright, you guys want to diminish “traditional cooking” … let’s take on the subject of “Molecular Gastronomy” and “Avant Garde” Cuisine.

Look, I’m interested in pretty much all aspects of cuisine big and small, old and new, I try to learn as much as I can about everything and if I know anything at all that is the only reason – because I study it like a mad man. That’s how I know whatever it is I know about Avant Garde Cuisine, it’s techniques, it’s ingredients, philosophies etc etc even though I’m not a chef – much less an Avant Garde Cuisine Chef. I dabble with elements of it, I have a jar of No-Boil Agar S100 from TIC gums, but you'll probably never recognize it in anything I serve.

I think one of my major issues with you is that you say you’re so “forward thinking” when in reality all you’re really doing is catching up with already known and documented information. Chefs for the most part aren’t food scientists, they employ food scientists to tell them how food science works and the reason the food scientists have been able to tell you is because, for the large part, they already knew a long time ago – and now restaurant chefs are catching up with that knowledge.

Which is great, I love that, I think Avant Garde cuisine and more poignantly, the science of food, is extremely interesting, but I think chefs are secretive and I think the press, other chefs and people in general aren’t food scientists or commercial food processors and generally know little about either of those things. So we’re in a magician won’t reveal his secrets but the card is in his left pocket scenario.

If they knew how this stuff has been used, how old it is and what it’s used to make they wouldn’t be so blinded by stars.

If they realized that people rail against McDonalds but they are pretty much doing the same things with the same ingredients and those ingredients are why people rail on McDonalds... some opinions might change.

It’s all about information.

I’m sure all the food is delicious – but so is a lot of food and your crowning gem and claim to fame is that you are doing so many “new” things, using so many "new techniques".

I dispute that part of the equation.

Harold McGee published On Food and Cooking in ’85 which means he probably started writing it in 1980 or so – that means, even if you just measure by that book, the interest in and documentation of this type of food science goes back a quarter of a century already – not just in Spain - but commercial food and food science is way older than that.

Hell, Cool Whip has been around since 1967 and the only dairy it contains is less than 2% of sodium casienate - a protein derived from milk as a stabilizer – yet it has the mouth feel and arguably the flavor of whipped dairy, but it’s ingredients are:

WATER, CORN SYRUP, HYDROGENATED VEGETABLE OIL (COCONUT AND PALM KERNEL OILS), HIGH FRUCTOSE CORN SYRUP, ARTIFICIAL FLAVOR, XANTHAN AND GUAR GUMS, POLYSORBATE 60, SORBITAN MONOSTEARATE AND BETA CAROTENE

Does that not qualify as both a “foam” in 1967 that is not made from dairy and something as amazing as any Avant Garde creation?

If the first “foam” was at El Bulli in 1994 why were food scientists writing articles about foam stabilizers in 1992?

Food Product Design – 1992:

"The alpha-tending ability of emulsifiers such as distilled propylene glycol esters, acetylated monoglycerides and lactylated monoglycerides have the ability to promote and stabilize foams. Many food products, such as whipped cream, dessert toppings and mousses, are manufactured in the form of an emulsion and subsequently aerated to a foam. With these products, the protein present provides emulsion stability while the emulsifiers promotes fat crystal agglomeration which forms a matrix. This matrix provides structure and firmness to the foam."

http://www.foodproductdesign.com/archive/1...q=cool+and+whip

Why were people freaking out that a foam was made out of white bean puree and gelatin and put through a nitrous siphon (a device manufactured and sold at retail for making foams) and it kept its structure?

I understand why… because in the context of fine dining this was comparatively insane – but in other food contexts it was already being done, so in the bigger food picture it really wasn’t very significant, people were already eating non-dairy, protein stabilized foams at home on their apple pie. So the foams were savory instead of sweet… so what?

That is my problem… you keep yelling for recognition but even though some of you may not be reading cookbooks, you’re just doing things that have already been done, already been discovered, already been put into practice in food – with very few exceptions – just using different ingredient combinations - which, by the way, is the exact reason you say regular cooking isn't worthy.

Even all the sensory, “food memory”, effects of aroma on taste elements have been studied forever and used to design all of these products that so precisely hit a target demographic that you buy at Jewel.

NO CHEF OWNS ANY OF THIS. NOT FERRAN ADRIA. NOT HOMARO CANTU. NOT GRANT ACHATZ.

People don’t see it, they don’t realize and they stare in amazement like you pulled down the moon.

Here’s a primer for people who may not have much knowledge of this stuff, from a 15 year old Food Science Magazine called "Food Product Design". I already did the searches for you – all you gotta do is click on links and read about all of these “New", "Avant Garde” ingredients and techniques and research that are really just old commercial ingredients and techniques and research.

Pay attention to the dates of the articles.

Transglutaminase:

http://cgi.vpico.com/websearch/websearch.a...inase&Submit=GO

Carageenan:

http://cgi.vpico.com/websearch/websearch.a...&index=fpdindex

Gellan:

http://cgi.vpico.com/websearch/websearch.a...&index=fpdindex

Methylcellulose:

http://cgi.vpico.com/websearch/websearch.a...&index=fpdindex

Agar:

http://cgi.vpico.com/websearch/websearch.a...&index=fpdindex

Alginate:

http://cgi.vpico.com/websearch/websearch.a...&index=fpdindex

Chloride:

http://cgi.vpico.com/websearch/websearch.a...&index=fpdindex

Sorbitol:

http://cgi.vpico.com/websearch/websearch.a...&index=fpdindex

Diglycerides:

http://cgi.vpico.com/websearch/websearch.a...&index=fpdindex

Nitrogen:

http://cgi.vpico.com/websearch/websearch.a...&index=fpdindex

So…. when you come the fuck down off your high horse and join the rest of us on the ground, rejoin the ranks of all the other cooks on the planet, then we can talk.

Because that my friends is where you are - you just have your eyes closed daydreaming and have people hypnotized.

They are going to wake up eventually - are you?

On the back of Harold’s book jacket there is blurb from Jacques Pepin that states he has “used Harold MGee’s 'On Food and Cooking' for 2 decades.

Jacques Pepin schooled all you 20 somethings and 30 somethings by at least a decade.

[Fat Guy]

None of that has much to do with copyrights. We're not talking about the processes, but rather the expression of the cuisine -- what's actually on the plate. The reliance on various processes does inform the end result, but that would be an issue for patent law not copyright law.

[sizzleteeth]

None of that has much to do with copyrights. We're not talking about the processes, but rather the expression of the cuisine -- what's actually on the plate. The reliance on various processes does inform the end result, but that would be an issue for patent law not copyright law.

←

You're exactly right Fat Guy.

None of it has much to do with copyrights.

Expression exists in all forms of cooking, some take it more seriously than others, some view it as art and practice it as art even if it doesn't come out looking like Dali - some even talk about "cooking with love".

But it's all been done, just as in traditional cooking.

And I'm really tired of hearing people profess otherwise.

[Fat Guy]

Whether or not it's art is irrelevant to the copyright laws. The question is originality. It hasn't all been done. Some has, some hasn't. What hasn't been done should be protected.

[Gastro Nomos]

Whether or not it's art is irrelevant to the copyright laws. The question is originality. It hasn't all been done. Some has, some hasn't. What hasn't been done should be protected.

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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.

[sizzleteeth]

What hasn't been done should be protected.

←

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.

[Gastro Nomos]

What hasn't been done should be protected.

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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.

[cdh]

Just remember that historically, copyright was not a cookie given to the creative to make them feel good. Copyright was a legal solution to a technological problem. That problem, you ask? Mechanical copying.

Until Star Trek replicators are invented (go inventolux!), cuisine does not face the same technological challenges that books (printing press), visual art (photo-reproduction and materials that permit many casts of a sculpture), and music (player pianos, tape recorders, etc.) do. After those three got copyright protection (recorded music surprisingly late), folks made bogus arguments that copyright should be a cookie to give to the creative choreographers, boat hull designers, etc.

Copyright wasn't meant to be a cookie, and shouldn't be used as one today. So, to all of the accusations of "Why do you hate the cooks?" the answer is that they're differently situated, and don't need protection, even if they deserve a cookie.

Edited April 12, 2006 by cdh (log)

[Fat Guy]

Just remember that historically, copyright was not a cookie given to the creative to make them feel good.  Copyright was a legal solution to a technological problem.  That problem, you ask? Mechanical copying. 

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While the printing press historically triggered some movement in intellectual property law, however it's one point on a historical timeline stretching from Ancient Greece and Rome to contemporary international law. As far as the basis for much current intellectual property law, the purpose of United States intellectual property law, as stated in Article I, section 8, clause 8 of the United States Constitution provides that Congress shall have the power "to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The purpose is not cookie-based, nor is it limited to the notion of the printing press. The purpose is to promote progress by protecting original works. The point is that if you protect original works you encourage original works.

[cdh]

Very nicely taken out of historical perspective, both by misdirection and by myopia.

I'd rather see the law in its evolutionary perspective, rather than latching onto a moment and declaring that that moment's ideas should predominate. Not that I admit a passing citation to the language of the constitution even accomplishes that. Read the Federalist papers.

Where before the Statute of Anne was there ever anything like a copyright? All the way back to Ancient Greece, and Rome eh?? Show me.

This proposal turns copyright into a cookie for people you like. Nothing more.

Edited April 12, 2006 by cdh (log)

[Fat Guy]

This means that copyright law will protect my creation of "oysters and pearls" if I had never heard of Thomas Keller's version.

←

Independent creation is kind of hard to prove if you're a former stagiaire or customer of the establishment you're copying, as is the case here. Once access is demonstrated, it's pretty hard to mount an independent creation defense.

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.

Copyright protection does not apply to works all components of which are common property and contain no original authorship. Likewise, minor variations to common property or to something like a typeface don't qualify. In cuisine, I would think this would be tantamount to saying that all the dishes in the repertoire -- e.g., Caesar salad -- are common property and contain no original authorship, and that just making a minor tweak to a Caesar salad is insufficient to trigger copyright protection.

[Fat Guy]

Where before the Statute of Anne was there ever anything like a copyright? 

←

The Statute of Anne was in 1710.

According to ICLA, the Irish Copyright Licensing Agency:

In about the year 500AD, St Colmcille borrowed a book of the Gospels from St Finnian of Maigh Bhile and secretly copied it. On realising what had been done, Finnian demanded the return of the book and also the copy. Colmcille objected, saying that the copy was his. The matter was referred to Diarmaid mac Cearrbheoil, the high king. His judgement was le gach bó a buinín agus le gach leabhar a chóip, to every cow her calf and to every book its copy.

http://www.icla.ie/

The first historic mention of Copyright, which set the universal precedent, can be traced to 6th Century Celtic Ireland.

http://www.copyrightprotection.com/history.htm

However, as is acknowledged in most any history of copyright, concerns of authorship trace back to the Ancient Greeks and Romans, even before the corresponding property rights became entrenched during the Enlightenment.

What, you thought they just thought it up one fine day in 1710?

[Fat Guy]

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? 

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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. It seems that, today, whatever renewed interest there has been in the culinary arts has come from economic incentive: the chance at celebrity chefdom, a show on Food TV. If instead the incentive became to create original culinary works, who knows where we'd be? Moreover, to say that most cooks feel a certain way, after that group has been selected for 100 years from exactly the population that feels that way is tautological -- we know most chefs just copy, so of course they aren't going to say copying is wrong. At the same time, we have two of the foremost representatives of originality -- Homaro Cantu (chef of Moto) and Nick Kokonas (owner of Alinea) -- right here saying they support intellectual property rights for culinary artists. The copyright laws should not be based on what the uncreative want; they should be based on what will stimulate creativity.

[Fat Guy]

My answer, and, for what it's worth, Thomas Keller's answer, is no.

←

In what context does Thomas Keller's answer appear?

[cdh]

What, you thought they just thought it up one fine day in 1710?

←

Yes, about 1710 there were enough printing presses floating around that mechanical copying was becoming an issue. Before then, it was not an issue (except maybe in Ireland). How many instances of le gach bó a buinín agus le gach leabhar a chóip were invoked between the 6th Century and 1710? And what precedential value did a Celtic noble proclamation have in any other legal sysem?

You're not actually trying to make a natural law argument here, are you? If so, I'll leave your matters of faith undisturbed.

Edited April 12, 2006 by cdh (log)

[matthewj]

It saddens me that our industry forums have come to this.

This is not the reason I started working in the culinary field.

This whole thread will eventually detract anyone from creating anything, in fear of being called a cheat, a thief, and uncreative. Some people should ashamed of themselves. I always believed our work is and was for the guest first. Not some mudslinging king of the hill. Too Bad.

If the chefs in question have such of fear of being copied then they should not be producing cookbooks with descriptions and pictures of what they doing.

Now wonder the French guarded their secrets for so long, and only passed them to the best apprentice.

I also question, with an exception of large hand full that are blogging in, how many here actually work in the food industry, and how many are just soccer moms.

[Gastro Nomos]

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.

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[Fat Guy]

Of course gastronomic creativity abounds, and it has for a while.

←

A law review article shouldn't rest on an unsupported assertion. I hope when you write it you'll note that this is just your opinion, one with which some observers disagree. Would you like to propose a list of truly creative chefs of the past 100 years? Would it be longer than a page?

The reference to Chef Keller comes from my recent interview with him. I also spoke to Chef Cantu who, at least as far as I understood him, suggested that while he certainly enjoyed taking advantage of patent protection he found very little use for copyright.

Chef Cantu's thinking seems to have evolved during this discussion. I hope you'll note that as well.

[butterscotch]

so you are saying only visual arts that can be "replicated" are protected? are you sure about this because i never saw this stipulated before? you mean a person can't go out, buy supplies, and make an amazingly difficult to tell from the original copy because they're very skilled- and if they did and tried to pass it off as an original it wouldn't be a problem?

it seems to me you're not really grasping what copying is as far as this discussion goes.

Until Star Trek replicators are invented (go inventolux!), cuisine does not face the same technological challenges that books (printing press), visual art (photo-reproduction and materials that permit many casts of a sculpture),

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and the cookie thing, the only thing i'm getting from that analogy is an snide attempt to make creative people look somehow childish. if that's your intent, it's sorta backfired.

[Pan]

This means that copyright law will protect my creation of "oysters and pearls" if I had never heard of Thomas Keller's version.

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Independent creation is kind of hard to prove if you're a former stagiaire or customer of the establishment you're copying, as is the case here. Once access is demonstrated, it's pretty hard to mount an independent creation defense.[...]

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Is there any field in which variations on a theme are considered copyright violation? Certainly not music, and I think we agree that this shouldn't apply to cuisine, either. So the degree of variation would be more relevant than degree of access.