Sincerest Form

[Boris_A]

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.

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I seriously doubt that a protection mechanism is really triggering creativity or, more precisely, important progress. (At least not in the fields of art). Usually, it promotes a lot of transaction costs. (Computer) Software industry, for example, was highly productive and innovative with only poor protection of IP.

My intuitive conclusion is that when you're introducing rigid protection mechanism you encourage laywers to work at the expense of directly productive people.

[Fat Guy]

I seriously doubt that a protection mechanism is really triggering creativity or, more precisely, important progress.

What is clear is that it's the premise or a major premise of the intellectual property laws. If you're saying it's a false premise, you're saying we shouldn't have copyrights in any arts, unless you can identify some other premise that includes all the arts currently thought to be protected but excludes the culinary arts. If you're opposed to all copyrights in the arts, that's a more fundamental argument that has been extremely well covered in the literature and to which, I think, we can contribute exactly nothing. Assuming, however, that the intellectual property laws make sense in the first place, nobody has been able to articulate a compelling justification for including bumper stickers and artificial plants but excluding cuisine.

[Fat Guy]

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.

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This isn't really a "should" question. When testing for "independent creation," courts look at "access" because if somebody claims independent creation it's pretty hard to make that claim if you had access to the original. Even where access can't be shown, "striking similarity" can be important evidence to overcome an independent creation defense. There have over time been some successful independent creation defenses, but I wouldn't call it common.

In terms of variation, which is really a separate point, the requirement is "substantial variation." You can't just take a marble sculpture, make the exact same sculpture in granite, and claim it as your own.

I'm off for a few days. Someone else is going to have to carry the torch for chefs' rights.

[cdh]

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.

No. What I'm saying is that copyright law only came into existence at all when mechanical replication became widespread. Before that, there was no copyright (unless you're in some part of Ireland, maybe, and that still doesn't make sense, since Ireland was the famous homeland of scrivener monks who copied books generation after generation, preserving lots of early literature through the Dark Ages... not much creative literature was generated, but plenty of copying). It wasn't necessary, because only truly skilled artisans could make copies of anything, not just some schmoe with some movable type and a printing press.

Maybe in your world I am just stupid and amoral, but I firmly believe that if somebody invests in gaining the skills to hand-make an exact replica of something, that is a good thing and should not be punished, like you are so intent on. So, I have no problems at all with somebody hand-making a copy of something. The passing it off as an original, I do have problems with. And they are problems that are dealt with by trademark law, not copyright law.

Copyright is a hugely punitive area of the law today. You don't seem to understand that. You don't have to do a damn thing to prove any damage to yourself and the statute says that you're entitled to at least $30K and the attorneys fees needed to get your judgment. That turns copyright litigation into an extortion racket, see, for example, the tactics behind the recent rash of RIAA lawsuits.

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.

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You certainly don't deserve a cookie today for your hostile attitude. I see no backfiring anywhere except in your perceptions. Cookie was simple shorthand for unneeded reward. Not everybody needs a cookie, but everybody would like a cookie... until it turns out that you need an army of lawyers who will eat most of your cookie in the process of getting it for you.

[Gastro Nomos]

I seriously doubt that a protection mechanism is really triggering creativity or, more precisely, important progress.

What is clear is that it's the premise or a major premise of the intellectual property laws. If you're saying it's a false premise, you're saying we shouldn't have copyrights in any arts, unless you can identify some other premise that includes all the arts currently thought to be protected but excludes the culinary arts.

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

[inventolux]

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

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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.

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Yes, my thinking here has changed. However I am not 100% for copyright protection. I think this has the ability to cripple innovation in the restaurant world (as we currently have defined it for food in this forum). I have watched numerous local and non local restaurants use our ideas and not attribute us in any way. Now this is not a practice I support however in order to push the envelope there should be some level of open source (and completely free) involved here. Perhaps responsible journalism could help us out like in the merit of preservation thread. I also want the average working cook to have rights just as the patent familiar gastronome. I train all of my cooks to fully understand patenting their ideas. It has to start at the ground level with the individual employee.

I think if a chef has the ability to create, then that chef should accept the responsability that comes in today's world capitalism by following the path of patent protection from larger entities in order to preserve the tradition of freestanding restaurants and small businesses as a whole. If we continue to create without protection in any way we may see small restaurants waste away and larger food chains take over. I look at each dish we create not as a dish anymore but an entire concept on a plate. Larger entities generally dont have the agility with creationism that a small think tank has and arent able to come up with entire entire concepts on a daily basis. They move like supertankers and generally don't take too many risks. That deserves protection. Does each dish deserve a copyright? Not sure yet, but watching this thread unfold is fascinating.

I also think we should stop saying the food world hasn't changed for 100 years and nothing new has come about until recently. I have been guilty of making these statements as well but evolution is present in all time periods. How would we define the creative chefs that would only fill a page? There have been countless chefs who have contributed to evolution and I wouldn't be here had it not been for their efforts.

[Gastro Nomos]

Chef,

Thanks for the thoughtful comment. I'm very happy to be able to continue this discussion with you.

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

Thanks again for the response.

[joesan]

Chris, Gastro Nomos - I have to say I agree with your views here.

Sizzle - boy you can swear good - but I have to agree that there is a lot of prior art out there.

I can't see any real benefit coming to the culinary industry from the well-intentioned but misguided take up of these kind of laws. Quite the opposite to encouraging creativity I feel certain that they would stifle it.

Cooking today seems to be more than ever to be taking "greatest hits" from all over the place and combining them into a synergistical greater whole. This is different from more classical days of cuisine where the cannon was largely stable for decades at a time. Or even today in Italy where the cuisine is predominantly the same as it has been for decades or centuries even.

Today's chefs are more like the music samplers of our time taking little pieces of pre-existing creativity and adding their own flair and inspiration to come up with something new and better. Even those at the very pinnacle of creativity are building on pre-conceived techniques and bases on the whole. To me there is no denigration in this - it takes a very talented person to come up with the next steps forward.

I'd really like to have some idea of the relative support for the idea of copyright in cooking. It seems that there a three vocal supporters here - one chef (inventolux), one businessman (nick) and one interested observer (fat guy). On the whole it seems the rest of us don't think its a good idea. Is that a fair representation? Or is there a silent majority out there who would support it.

[mildbore]

I can't see any real benefit coming to the culinary industry from the well-intentioned but misguided take up of these kind of laws. Quite the opposite to encouraging creativity I feel certain that they would stifle it.

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I couldn't agree more. It would be a disaster. Imagine all these inventive chefs spending their time on lawsuits not on food. Inventive new dishes and techniques benefit us all, especially if free diffusion of these ideas is encouraged. My own feeling is that attribution is a good idea, just from common decency, not as a legal requirement.

(Fat Guy may not be totally disinterested since he is a lawyer. Lawyers are likely to be the big financial winners in such suits.)

Bill

[butterscotch]

In Ireland copying books was how the bibles were made and school library stocked, the authors were credited, it was not - as much as you hate the word in this thread- plagerism, and so I'm not sure the relevance here. Applying ancient laws to very different circumstances seems off point.

So you were just joking or something about the replicator, and understanding it's quite possible to copy a dish or many other things without one? That whole arguement was just a joke? I guess you could have used one of these.

It seems clear now that you're in favour of choosing yourself which creative endevours are worthy- and chefs and choreographers, according to your post, need not apply. It seems pretty arbitrary, and downright hostile to the artists you'd choose to exclude.

Although claiming so more than once, you've yet to explain to anyone why it hinders creativity or good business by protecting the work of creative folk. Should it just be easier for anyone to just steal anyone else's ideas? because it truly seems that this is what you are in favor of here.

I have to agree with Steve, to create such a hostile enviornment for creative people will dissuade many from choosing it as a profession and diminish our culture. Soon enough there won't be much out there worth being "inspired by" let alone stealing.

No one wants the stupid cookie, or for you to determine what's a "needed reward" or not, they simply want to keep the rights to what they created. They want to actually be able to profit from their labor if possible without unfair (and skipping the R+D and creative parts IS very unfair) competition for a while, because that's the appropriate reward. It's not an unreasonable request that's going to impact commerce, competing businesses are not somehow owed a piece of this new creation. That's an absurd notion. It would just encourage them to skip their own R+D and so discourage creativity.

And yeah, I'd say it was immoral to say just because someone is capable of stealing your creation, it's okay. That's not setting any sort of bar at all. Just because I can't cook it, or you can't paint it, doesn't meant there aren't loads of talentless hacks that can. Skills and creative talent are two compeletly different things, it's a mistake to confuse or equate the two .

so you are saying only visual arts that can be "replicated" are protected?  .

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

No. What I'm saying is that copyright law only came into existence at all when mechanical replication became widespread. Before that, there was no copyright (unless you're in some part of Ireland, maybe, and that still doesn't make sense, since Ireland was the famous homeland of scrivener monks who copied books generation after generation, preserving lots of early literature through the Dark Ages... not much creative literature was generated, but plenty of copying). It wasn't necessary, because only truly skilled artisans could make copies of anything, not just some schmoe with some movable type and a printing press.

Maybe in your world I am just stupid and amoral, but I firmly believe that if somebody invests in gaining the skills to hand-make an exact replica of something, that is a good thing and should not be punished, like you are so intent on. So, I have no problems at all with somebody hand-making a copy of something. The passing it off as an original, I do have problems with. And they are problems that are dealt with by trademark law, not copyright law.

Copyright is a hugely punitive area of the law today. You don't seem to understand that. You don't have to do a damn thing to prove any damage to yourself and the statute says that you're entitled to at least $30K and the attorneys fees needed to get your judgment. That turns copyright litigation into an extortion racket, see, for example, the tactics behind the recent rash of RIAA lawsuits.

You certainly don't deserve a cookie today for your hostile attitude. I see no backfiring anywhere except in your perceptions. Cookie was simple shorthand for unneeded reward. Not everybody needs a cookie, but everybody would like a cookie... until it turns out that you need an army of lawyers who will eat most of your cookie in the process of getting it for you.

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[cdh]

No, what I'm saying is that copyright started as a legal solution to a technological problem, and should remain one. If you can't see that from what I've said, there is no point in trying to explain it again. Read what I've written, think about, and you'll come around. Getting mad at me won't help that.

[Gastro Nomos]

It would be a disaster. Imagine all these inventive chefs spending their time on lawsuits not on food.

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

[butterscotch]

actually the fashion industry has been tanking in this country for many years. except for the high end luxury market (which is supported by sales of trademarked purses and perfumes) profits across the board, are down. people spend their disposable on gagetry these days, not fashion, and less and less innovation is happening in america.

the industry is in a situation where any low end retailer can have the Paris couture "looks" in their store well before said design house will.

and now the CFDA is lobbying for copyright protection for designs. (you can search back a few pages where i linked an article) this is largely because retailers have begun to "create" their own product and buy directly from overseas, bypassing design houses entirely. and by create, i do mean purchasing or photographing other people's designs and yes, asking the manufacturer to copy them. many retail operations produce clothing from start to finish these days without anyone at all claiming to be a designer. so technology as well as time and cost concerns have worked to eliminate real design across 90% of marketplace. being seen as derivitive is a real concern only for the few, the proud, and the seriously expensive.

i think there maybe a mistaken impression from all the Bravo programming that the business is thriving, but the reality isn't quite as glamourous or profitable as all that.

I do agree enforcing any sort of IP rights is going to take a great deal of cooperation and assistance form the industry. I am not sure how much the legal system can assist, but it's interesting to watch the speculation.

I

Fat Guy, you are absolutely right that the major premise of IP law (at least since Judge Posner has begun thinking about it) is that creative publication is encouraged by federal protection. This may (or may not) be true of a number of media, but there are some media where the premise fails to give an adequate description of what is going on. Consider the fashion industry. Despite a complete lack of copyright protection, the fashion industry has been incredibly successful both creatively and economically. Fashion designers exist is what one might call a "low IP equilibrium," where they are successful without strong IP protection.

For food, one might look to the strength of non-legal norms in protecting creativity, such as this forum's use of photographs to allegedly expose copying. If a restaurant gets a reputation as derivative, it will lose business anyway regardless of whether it is being sued by those who it copied from

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[sizzleteeth]

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

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Precisely my point in joking about starting a "Culinary Record Label" and earlier joking about paying Michael Jackson when you make mayo.

Though ridiculous notions, carry a stone center of truth.

Rights can be owned by anyone and anyone who owns rights can sell rights to anyone.

Money is a powerful motivator.

When it is involved you should not underestimate anyone.

I'm glad there are people who see this.

[butterscotch]

ok, let me see if i have it now...

you are of the opinion that copyrights were never intended to be extended to creative folk in the first place. (although they do serve that purpose now, let's just ignore that, becaue you'd prefer they didn't)

and that copyright law should be rolled back to cover only those items that can be reproduced technologically, because those reproduced by craftspeople are somehow different? is that the distinction you are making? why is this distinction so relevant? some original work is darned easy to copy, is it less okay if it takes less skill?

it's such novel concept, i can't say i'm slapping myself at all that i couldn't see it.

No, what I'm saying is that copyright started as a legal solution to a technological problem, and should remain one.  If you can't see that from what I've said, there is no point in trying to explain it again.  Read what I've written, think about, and you'll come around.  Getting mad at me won't help that.

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Edited April 12, 2006 by butterscotch (log)

[Tess]

For food, one might look to the strength of non-legal norms in protecting creativity, such as this forum's use of photographs to allegedly expose copying.  If a restaurant gets a reputation as derivative, it will lose business anyway regardless of whether it is being sued by those who it copied from

I was thinking that the "ick factor" of becoming known for massive copying would be the most effective deterrent, but then the people who are the worst offenders probably don't care, and I doubt whether a lot of customers do either. Look at all the people who like to carry knockoff purses.

[Gastro Nomos]

being seen as derivitive is a real concern only  for the few, the proud, and the seriously expensive.

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

[Pan]

Can anyone give any example of a person who chose not to become a cook or to create a new dish because of fear of being copied? I find that argument very dubious. If you really want to make the world of cuisine more attractive, improve the pay and working conditions.

On another topic, further to joesan's comments about traditional Italian cuisine, note that they have started to protect traditional dishes, such as "la vera pizza napoletana." We should question why we are stuck in the Modernist obsession with originality. Why does originality deserve legal protection and classic cuisine merit condescension? I take comments about the combination of sampled music advisedly, because it shows how we are thinking about these things. I do not think that music has "progressed" to become superior to Bach through these sampling techniques. Is it possible that there are sublime culinary classics from the early 18th century that surpass all modern cuisine? Or does this line of discussion show, once again, how inapt comparisons between cuisine and the fine arts are?

[sizzleteeth]

Why does originality deserve legal protection and classic cuisine merit condescension? I take comments about the combination of sampled music advisedly, because it shows how we are thinking about these things. I do not think that music has "progressed" to become superior to Bach through these sampling techniques. Is it possible that there are sublime culinary classics from the early 18th century that surpass all modern cuisine?

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There is always seems to be the perception that "newer is better" - but it doesn't always hold up to scrutiny, I think the term is Zeitgeist, but I suppose that could even apply to a bygone era.

We often end up returning to older things once the newness has worn off and then seek out newer things once the older things become tiresome.

It is simply a cycle that repeats itself over and over - and it always will and both extremes of the cycle are happening with different groups and different people within those groups simultaneously like gyroscopes inside gyroscopes - balancing things out.

The old cliche "those who do not learn from the past are doomed to repeat it" also comes into play.

My Jacques Pepin reference is a case in point, I think most people see him as a "classical chef" and there is a whole sector of people who look to that and love it - but Pepin also ran the R&D lab at Howard Johnson for 10 years - he was one of the original "chefs in an R&D lab" putting commercial processing techniques into practice. So at one time he was doing some of the newest things there were to do in that context. I think a-lot of people know that - but they just don't think about it.

I am a victim of this cycle as much as anyone, I see new cars while I'm in America and they look really nice but then I go to Bombay and see all the old cars they use for taxis and think they are more interesting and then back again.

I think the real truth is we all need both, new and old, we need to embrace that cycle of balance.

"Superior", "Surpass" are all relative terms and not only are they relative they are layers of

relative, to who you are, where you live, what you like, how you grew up etc etc.

There is no single correct answer - which makes figuring something like this out all the more difficult.

[joesan]

I think the truth is we need a mixture of both old and new. We get something different from each.

To go back again to my Italian example I have a friend who lives in Emilia Romagna. Every time I visit her I get to taste the most amazing Ravioli - they have been making the same ravioli in her area literally for centuries and they are truly delicious -they are ravioli perfected. I love them and can have them the 4 or 5 times a year that I visit with continued pleasure.

She however is sick of the perfect ravioli because the truth of the matter is that they are served all the time and there is not a great deal of other pasta that is served where she lives other than these perfect local examples. She longs to try Heston's Snail Porridge or some other Molecular Gastronomy marvel for some novelty or variety.

For my part the creations of the new chefs in the MG world are really a passion of mine but I can't help but feel if I was only allowed one type of cuisine for the rest of my life the Italian rural one, which is centuries old, would be hard to beat for satisfaction. There's life in the old cannon yet.

[akwa]

Can anyone give any example of a person who chose not to become a cook or to create a new dish because of fear of being copied? I find that argument very dubious. If you really want to make the world of cuisine more attractive, improve the pay and working conditions.

On another topic, further to joesan's comments about traditional Italian cuisine, note that they have started to protect traditional dishes, such as "la vera pizza napoletana." We should question why we are stuck in the Modernist obsession with originality. Why does originality deserve legal protection and classic cuisine merit condescension? I take comments about the combination of sampled music advisedly, because it shows how we are thinking about these things. I do not think that music has "progressed" to become superior to Bach through these sampling techniques. Is it possible that there are sublime culinary classics from the early 18th century that surpass all modern cuisine? Or does this line of discussion show, once again, how inapt comparisons between cuisine and the fine arts are?

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me

not from fear of being copied

fear of being ripped off

working conditions cannot be separated from protecting the livelihood of the suckers who provide the content

the correct obsession is with quality, but there has to be a reward for originality

comparing food and fine art is not an inapt comparison because you prefer something classical to something modern, it actually serves to support the grouping by showing preference for diverse members of the same class within a subgroup.

[nathanm]

The question of old versus new / original versus classical is somewhat beside the point.

Of course some people want excellent execution of classical dishes - that is perfectly valid. Intellectual property laws and conventions simply do not apply to dishes that are in the public domain - either because they are old, or because they were not brought into the intellectual property system (copyright registration, patent filing).

The issue is NOT whether all chefs have to be original. It surely doesn't. Look at all of the Italian restaurants that explicitly claim to be "traditional", "original", "authentic" and so forth. Many even make a point of saying that the recipes are from the chef's grandmother. Not that Italian can't be innovative - it can - but there is a clear segment of the market that is explicitly not interested in innovation. The same is true for every "comfort food" dish in any cuisine.

The fact is however that since Nouvelle Cuisine in the 1970s through to the present there has been a segment of the food world that is obsessed with originality. You can say it is a good thing (as I do) or a bad thing, but it is hard to deny that it exists.

Chefs like Ferran, Heston, Wylie, akwa, Homaro Cantu, Grant Achatz and many others in France (Marc Veyrat, Pierre Gagnaire), Spain (Joan Roca, Santi Santimaria, Dani Garcia, Sergi Arola) and elsewhere have explicitly made their careers rest on a foundation of their originality. Nobody goes to Moto, WD50, Alinea, Fat Duck or El Bulli for excellent execution of classical dishes.

If we don't respect their originality(whether through credit and attribution, or through intellectual property), then you thwart their ability to be successful within the segment of the food world that values originality. This isn't a question of whether all food needs to be patented (too late for that!) or that all food needs to be new and original (it doesn't). The question is whether chefs who really are original, and base their careers on it, should be allowed to pursue their vision of cuisine.

[Fat Guy]

The same is true for food.  People have continued to join the industry and chefs have created new dishes for generations without strong IP protection.  In these cases then, the premise fails.  The interesting question here is why.  For food, one might look to the strength of non-legal norms in protecting creativity, such as this forum's use of photographs to allegedly expose copying.  If a restaurant gets a reputation as derivative, it will lose business anyway regardless of whether it is being sued by those who it copied from

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You're failing to separate the notion of quantity from the notion of creativity/originality. People need to eat. Of course there's going to be a food service industry. And of course it's going to grow, because the population that needs to be fed is growing and people are eating at home less and less (and when they eat at home they're cooking less) for macroeconomic and socio-cultural reasons.

But what is the nature of that industry? Your claim that "If a restaurant gets a reputation as derivative, it will lose business anyway regardless of whether it is being sued by those who it copied from" is simply unsupportable. Not only do I think it would be impossible for you to show even one example of a restaurant that has lost business by being unoriginal, but also I could show you thousands of counterexamples: every bistro, brasserie and diner, for example.

The question is not whether the culinary industry is growing, but whether it is particularly original or creative. And there I think the answer is a resounding no. The creative subset of the culinary industry is tiny, and I think there's a reasonable inference to be drawn -- and certainly to be explored -- that says there's insufficient incentive to pursue creative cuisine.

I certainly agree that money is not a muse as such. It's not really possible to force creativity. As an author, I know this well: creativity comes when it comes. At the same time, as an author, I know that I can't do anything creative at all unless the preconditions for creativity first exist. In other words, I need to make a living. The fact that I can (sort of) make a living from creating means I can work in such a way that allows my muse to do her part. If I had to spend all my time writing catalog copy for Computer Discount Warehouse, there would be no opportunity to create.

And I agree that copyright becomes especially important as a response to technological challenges. But what we're seeing in cuisine today is very much a technological challenge. Advances in digital photography and printing, the instant communication provided by the internet, the ability to travel -- these all facilitate copying because the photos are out there, the cooks are apprenticing and so on.

Take a hypothetical example of an industry composed of thousands of small workshops that produce two types of widgets: widgets that are the same as other widgets, and widgets that are original. They produce them in quantities of a few thousand per week per workshop, and there isn't all that much growth available per capita because each human only needs so many widgets. And let's say the demand for widgets is such that people will pay $3 for the copycat widgets and $3.50 for the totally original, creative, unique widgets. Let's also assume that it costs $1 to produce each copycat widget and, when you add in the cost of creative resources (time, extra employees, a lab, product tests, whatever) it costs $1.50 to produce each original widget. Under those circumstances, with the margin on all widgets being equal at $2, there is no real economic incentive to set your widget workshop up in such a way as to encourage creativity and originality. Why bother? The only people who will bother are a few visionaries -- true believers.

Worse, if there is no intellectual property protection for original widgets, those who produce copycat widgets can just copy the original widgets and sell them for $3.50, even though their production cost is only $1. So the creator of the original widget earns $2 per widget and the copier earns $2.50 per widget.

However, if the copier is required to pay a fee to the creator for each copied widget, we have a totally different situation. Because if you create a widget that everybody wants to copy, you go from making a couple of dollars on a couple of thousand widgets per week to making a couple of cents on, potentially, millions of widgets per week. Under such circumstances, new entrants to the widget industry would be encouraged to pursue creativity. This is how the intellectual property laws are supposed to work to encourage creativity and originality.

[cdh]

In thinking over this whole situation I've not been swayed from my position that copyright is the wrong form of protection for culinary creations. Copyright is too big a mess as it is, and adding to it will only make it worse.

That said, I am beginning to think that some sort of sui generis protection might not be a bad thing, provided it has at least the following characteristics:

- limited time frame. 5 years seems about right to me. Certainly not the current 120+.

- inalienablilty, or an opportunity to reclaim. The creative individual should not be subject to negotiations that would strip all of their claims to the creation. Copyright has its 35 year reclamation right. That would translate into an 18 month reclamation right under this system.

- compulsory licensing. Being a creator should not be grounds for injunctive relief against an infringer in this sort of circumstance. A compulsory license (like the law requires for musical compositions, hence why cover bands exist) would set a price that anybody cooking the dish would owe to the originator. Probably a Harry Fox Agency type organization would come into existence to collect this, just like in the music business. Who gets to set the license price is an interesting question... for music, the Copyright Office has a tribunal that meets every so often to set this price. For musicians, this is traditionally the most lucrative part of the business since album production costs are recouped out of royalties on the phonorecords (hence no payments at all until the hundreds of thousands of dollars it cost to make the album are recouped out of the artist's 12% of wholesale royalty rate), but if the artist published their own lyrics, then they're entitled to a nickle (or is it a dime now?) for each song on the album that they published right from the start. That can add up.

- subject matter is covered only to within a narrow variance from its presentation at the originator's restaurant.

- subject matter must meet novelty and non-obviousness criteria.

- infringement only occurs when visual appearance and ingredient composition are within the narrow variance protected.

- NO derivative works protection whatsoever.

That is a method of protection for truly original culinary creations that I could happily live with.

Comments, please.

Edited April 14, 2006 by cdh (log)

[chankonabe]

I still wonder...why? What for? Who is being protected from what? what damage is being done? Can't this be a purely moralistic issue as opposed to a legal one? This discussion, although very interesting and thought provoking, seems to have become something that exists inside itself. It seems like a fun project, to figure out how to make it work, as long as it never does. No one worth their salt in the industry would want this.