Sincerest Form

[cdh]

I didn't think so, but what I've proposed is the least likely thing to become a huge mess. It is narrow, it should be optional, it avoids all of the current insanities of copyright law, and it won't trip up people just cooking like they always have.

I agree that the current state of affairs seems to be handling the situation fine, but for those with a mad hankering to expand the law, beefing up the Copyright Monster is not the way to do it... something new and sane and under control is. I'd hoped that the mad legal expansionists would at least comment on my suggestions... maybe there just isn't anything there that looks fun to attack.

Edited April 14, 2006 by cdh (log)

[chankonabe]

word. How about adding something like "...and free cookies for the owners of the first 100 dishes licensed"?

[cdh]

word, indeed. cookies for all!

[nathanm]

I am very much in favor of intellectual property protection as a general rule, but it is not clear to me that we need to create anythnig new here.

I don't think that chefs need somethnig new or special.

Most original and innovative chefs doing high end, low volume cusine probably will not use any formal legal means of intellectual property protection. It is just too expensive, for too little benefit.

This is especially true when the dishes cross borders so readily. The case that started this thread were US based chefs being copied in Australia.

When a chef invents something novel that has a sufficiently high economic value, then the current means of IP proteciton probably work reasonably well. So, a future Dippin' Dots, or future dish that could be adapted to industrial scale probably should be patented or othewise protected. Copyright, trade secret and patents are very far from perfect, but they work in various scenarios.

In addition to formal IP protection, I think that the food community should react as it did in the Chef Bruce / Interlude case and condemn people who copy without attribution. Having the informal culture support innovation is probably more important than the formal legal framework.

Toward that end, I think it is inevitable that chefs seeking to establish themselves as innovative will want to publish - on eGullet, other websites, and cookbooks and culinary journals (like Apicus in Spain, or Art Cullinare), or in frequent cookbooks (as with El Bulli). I am not suggesting that anybody be forced to do this - some will and some won't. However, when it comes to somebody taking credit it is very useful to be able to point to a publication of record and say "well, the dish was posted online on X date".

[cdh]

Indeed... the current state of affairs is entirely satisfactory, as far as I'm concerned.

BUT, for those who don't think so, the options become either:

1) to litigate this and get a judge in a court somewhere to start a precedent that will have no clarity or firm boundaries and will only be refined by further litigation, or

2) Statutory modification.

I'd always pick 2, even though it would be bad for business for me as a lawyer; option 1 would be terrible for the world as a whole. Since I live in the world, and don't have that business now, I'll happily forego that potential business in exchange for some certainty and lack of chilling effects.

Consequently, rather than modifying the copyright act to broaden it, I propose something new that handles the unique qualities of the culinary world.

Edited April 15, 2006 by cdh (log)

[Andy Lynes]

What possible harm could possibly have been done to anybody?  Has Alinea, or WD-50 lost a significant number of customers due to this occurrence?  Has anybody's reputation been damaged?  Have any brand names lost any goodwill in their marketplace?

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What harm? Well, how about that sickening feeling in the pit of your stomach when you see your creativity being palmed off by someone else as their own. And them profiting from it? That feeling of having been in some way violated. It's really not nice.

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What, so now instead of paying $160 for the tasting menu, we are going to have to pay $200 for the tasting menu to cover the royalties that the restaurant will have to pay to all of the chefs?

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Or alternatively - and this is just a wild, crazy, off the wall idea - they could create their own dishes and not have to pay royalties.

[Andy Lynes]

The main problem with your comparison is that the two examples are not similar.  A recording is a preserved example of the artist's work from the artist's own instrument.  A recipe or conception is not. 

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I don't want to get too hung up on this but maybe the royalties recieved by the composer when their a song is covered by an artist either live in performance or on record is a closer analogy.

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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. 

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Cdh - you didn't just plagerise my idea did you?

[cdh]

Cdh - you didn't just plagerise my idea did you?

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Absolutely, and unashamedly. This whole thread has provided all kinds of inspiration and food for thought about what is right and what is wrong with legal protections for creative expression. Now I've added value to your musing by specifying the mechanism behind it that makes it work.

Edited April 15, 2006 by cdh (log)

[andy83]

A.A. Gill comments in today's U.K. Sunday Times

"A chef can’t claim a recipe any more than a carpenter can copyright a tree.

What the Australian gastro-snobs are arguing about is not the combination of ingredients or which shelf of the oven they go on, it’s presentation — the absurd kitsch of fiddled food origami. Making dinner look edible is one thing. Making it look like you’ve got a team of gay goblin interior designers flouncing over every starter is something else. Food is the bottom line of life. Nobody can take the bread from your mouth or the meat from your table simply because they say they thought of it first. And anyway, we thought of Australia first."

http://www.timesonline.co.uk/newspaper/0,,...2121708,00.html

[kinichiwa]

thank you, andy83!

[nick.kokonas]

while I am a hopeless anglophile, I would respectfully submit that the reason Mr. Gill thinks there is nothing original in cuisine is precisely because he is in GBR.

(with the very obvious NB and apologies to chef Blumenthal)

Edited April 16, 2006 by nick.kokonas (log)

[Andy Lynes]

Now I've added value to your musing by specifying the mechanism behind it that makes it work.

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Not really - the model for the mechnaism already exists in the music industry. By failing to reference my earlier posts, you've effectively passed off my idea as your own. Oh the irony!

Edited April 16, 2006 by Andy Lynes (log)

[Andy Lynes]

"A chef can’t claim a recipe any more than a carpenter can copyright a tree.

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That doesn't make logical sense. "A chef can't claim an ingredient any more than a carpenter can copyright a tree" would do, or "A chef can't claim a recipe anymore then a carpenter can copyright a chair" might also do, except you've then got the issue of the carpenter actually designing a chair and then someone stealing that design. Back to square one really aren't we?

I think Gill is willfuly misunderstanding the issues here, partly evidenced by the fact that he appears to think we are all Australian gastro-snobs. Flaming cheek - I'm not Australian!

Edited April 16, 2006 by Andy Lynes (log)

[cdh]

Not really - the model for the mechnaism already exists in the music industry. By failing to reference my earlier posts, you've effectively passed off my idea as your own. Oh the irony!

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Good God, you're actually serious, aren't you?

No. I've not plagiarized from you or anybody else, and this kind of prissy prima donna BS is exactly why this sort of legal reform is insane.

You don't OWN that idea, you never did, and under the laws, you never will, nor will anybody else. Furthermore, I absolutely refuse to accept the ethical proposition that because YOU vaguely mentioned a meme already floating around in the environment first in this discussion that I owe something to you.

Compulsory licensing is a common meme amongst copyright reform folks and has been for years. The fact that you mentioned it without citing to the relevant copyright statutes where it appears, and to the articles that have mentioned it in the past indicates to me that you either don't know that, or were violating your own oh-so-high ethical standards by asserting that you own or created that thought. If you want to get into the game of idea auditing, you'll soon find that we're all quite guilty and that there is nothing new under the sun.

Get off your high horse and give it a rest. And have a happy Easter.

Edited April 16, 2006 by cdh (log)

[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?

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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.

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akwa, are you implying something about my food preferences?

I'm sorry and also interested to read that you decided not to create a new dish for fear of being ripped off.

[Pan]

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).[...]

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Nathan, aren't you talking past my point that in Italy, they have started to extend a form of denominazione d'origine controllata to traditional foods such as la vera pizza napoletana? Clearly, there are places where some people think traditional foods do need and merit protection. The idea of protecting only what can be demonstrated to be new and original instead of true to the possibly threatened old way is clearly a choice and an illustration of our values system.

akwa, to make my position on molecular gastronomy clearer, I have no position, because I have not tried any. And people's comparisons of work by people like you to combinations of sampled music that I find odious are very unlikely to deter me from trying the hot new cuisine. What could put me off for some time into the future is a combination of the high prices and the doubts that I will find the expenditure worthwhile. That's because money is worth more to me than it is to many other people, not because I actually have any reason to have anything against a type of cuisine I haven't tried. And the less worth I ascribe to my money, the more likelihood I would use some of it to take an interesting risk and try some of this intriguing cuisine. People can compare your food to Warhol's Campbell's soup cans, Jackson Pollock's drip paintings, rap with all unoriginal (!) sampled music -- that doesn't make any of those analogies tell me what your food tastes like. And the taste is the bottom line, because if your food doesn't taste good (obviously, most of the members who've tried it feel strongly that it does), I don't care how it looks or how people conceptualize it.

[nathanm]

Nathan, aren't you talking past my point that in Italy, they have started to extend a form of denominazione d'origine controllata to traditional foods such as la vera pizza napoletana? Clearly, there are places where some people think traditional foods do need and merit protection. The idea of protecting only what can be demonstrated to be new and original instead of true to the possibly threatened old way is clearly a choice and an illustration of our values system.

The denominazione d'origine controllata applied to Neapolitan pizza is not a method of protecting a recipe - it is a kind of trademark.

In the case of wine this is quite common in Europe - there are names like "Champagne" that you cannot use unless you grow your grapes in a in a particular region. The method of making sparkling wine is not protected - that is in the public domain - but the name "champagne" is covered. As discussed in previous posts, cheese names have a similar scheme - Roquefort can only be made in a certain region by certain producers.

In the case of the pizza certification they have rules that you must follow certain standards, use certain ingredients and so forth. As a result the certification is available to people outside a geographic region (there is a "Naples" VPN certified pizzeria here in Seattle, for example).

The system is described in articles in Forbes here and from a pizza weblog here . Actually there are two separate, but related efforts. One is an official Italian government law - which would only have legal force in Italy. The other is an international trade association that certifies "authentic" pizza anywhere. Note that BOTH are trademark schemes. One is a private trademark, the other would be in effect a government controlled trademark.

This is classic example of trademark protection - use of the NAME is restricted. The process, method and appearance can be used by anybody. However, you can only use the name and claim to be a VPN certified pizzeria if you follow their rules.

So, even if the law passes in Italy, nobody will stop you from making a pizza greater than 35 cm in diameter (one of their rules) - but they will stop you from calling it a Neapolitan pizza.

The point in protecting a name is to create a brand that the consumer can follow to get a guaranteed quality of experience. It is one of the only forms of intellectual property proteciton available to a traditional technique, because patent protection is only available for a limited time, and you have to file the patent promptly etc.

The most common commercial use of this strategy is in chain restaurants - you can't call your hamberger joint "McDonalds" unless you follow their rules, and have an agreement with the company that controls the name. You can't lcall a dish a "Big Mac" if you're not an offical McDonald's franchisee.

Although Europe has famous names like Champagne, government controlled trademarks similarare very common in the US for agricultural products. So, there are similar standards on what you can call "ice cream", what is "low fat" and so forth. Here is an official USDA document CFR 21 Part 135 on the official definition of what you can call "ice cream" and other frozen desserts.

This kind of trademark or name protection is nothing new at all - these definitions have been around forever for food - both official government controlled names, and privately controlled trademarks.

Relais et Chateau is a private trademark scheme for hotels and restaurants - any hotel or restaurant can apply, pay a fee, get your place inspected, and if you pass inspection and so forth then you can put a plaque on the wall that says "Relais et Chateau", and get listed in the book.

Trademark protection is available to chefs for their creations. I and others have pointed this out in previous postings in this thread. It is not often used by high end chefs, but it is very common in franchized restaurant world - both for the name of a dish, and for the name of a restaurant.

Note that brand new creations are just as suitable for trademark protection as traditional methods. Dippin' Dots is a trademark for example, and the lawsuit that I referenced in earlier posts is in part a trademark dispute.

[sizzleteeth]

The most common commercial use of this strategy is in chain restaurants - you can't call your hamberger joint "McDonalds" unless you follow their rules, and have an agreement with the company that controls the name.  You can't lcall a dish a "Big Mac" if you're not an offical McDonald's franchisee.

Note that brand new creations are just as suitable for trademark protection as traditional methods.  Dippin' Dots is a trademark for example, and the lawsuit that I referenced in earlier posts is in part a trademark dispute.

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That may be the point that all this comes to, many are making arguments that Molecular Avant Garde cuisine is so far removed from any type of "regular food"

that it not only deserves a category of it's own but that it should be viewed in an entirely different fashion than food cooked by traditional methods.

This completely reminds me of the universal distinction between Commercial Food

and Haute Cuisine but it seems two things are happening simultaneously.

One is that the commercial food industry is entering the "organic and sustainable" food market at a very fast pace, as well the "Haute Cuisine" market is entering the territory that used to be isolated to Commercial Food companies.

So it seems a type of segmentation is coming into existence in both arenas, the "Whole Foods" segment of the Commercial Food Industry and the "Processed Food" segment of the Haute Cuisine world.

So perhaps some of the Trademark applications that we see with companies who have so "highly designed" their food and by proxy it's brand recognition like McDonalds and the "Big Mac" should be applied to this segment of fine dining - as the use of food additives and processes that were once largely isolated to Commercial Food so pervades the genre of cuisine and it produces such highly distinctive forms, tastes and textures that are so far removed from nature.

I still don't know if I can completely agree with that viewpoint - but after thinking for a bit I can see how it might apply.

Or maybe we're just talking about the "wrong" kind of protection, perhaps we should be more concerned with "Brand Identity" in this case than we are with actual dishes, which only make up a small part of the overall identity.

[Fat Guy]

Some high-end chefs and restaurants have registered trademarks for individual dish names. The example that comes to mind is David Burke's "Swordchop," which is a registered trademark (number 2597887). You can serve a swordfish chop anywhere, and you can call it a "swordfish chop," "swordfish steak," or "Grandma's Own Swordfish Chop," but you can't call it a "Swordchop."

This seems to be of limited utility, however, for a single-establishment restaurant or small restaurant group. It's not likely that the name will catch on to a great enough extent for it to be a commercial advantage to use it as opposed to some other name. Maybe in exceptional circumstances, but not often.

[cdh]

AH... but trademark law goes so much further than just product names. If a product is truly unique to one particular chef, so much so that it serves a single source identifier, then the configuration of a dish itself may be protectable. If three tones (NBC's chimes) or a shade of the color green (Qualitex dry cleaning products), or the interior decor of a chain of taco stands (Two Pesos v. Taco Cabana) are trademarkable, then why not a particularly unusual dish. It might not be easy legally, since the attempt to trademark an odor has stumbled... but it seems within the ambit of this part of the law to preserve the source-identifying nature of a particular dish.

This would be a fine way of accomplishing what people here seem to be clamoring for. Trademark rights are only violated when the mark is used in commerce... hence no spillover into private kitchens. Trademark rights are premised on the idea that the mark identifies the source... the dish would identify the chef.... It would be incumbent on the chef to police his mark, however... and licensing it would be tough too, since trademark law requires that a licensee be in some way supervised by the licensor... but all in all this seems better to me than a full copyright treatment, and wouldn't require much in the way of statutory meddling at all.

Edited April 17, 2006 by cdh (log)

[slkinsey]

To a certain extent, I do think that the question of whether "culinary works" should be entitled to copyright or similar IP protection does involve a value judgment.

I think copyright and the idea of IP protection in general came out of the idea of recognizing the special nature of artistic works and giving consideration to both the moral rights of the artist as well as the economic rights of the patron and/or artist, owner of a copy, etc. This clearly started in earnest with the invention and widespread adoption of the printing press, and so it makes sense that the written word led the way. Subsequently, other classes of creative work have been added under the umbrella of this concept.

As Steven points out earlier, within a given class of creative work, the system only works equitably if it is value-neutral. This is to say that anything I write is afforded the same protection as something written by, say, William Faulkner.

That said, I think there has to be a certain value judgment about a class of creative work before one decides it is approproately made part of the copyright/IP protection concept. So, for example, at some point we decide that the works of Faulkner, Stravinski and Picasso are so important and so clearly artistic and so clearly deserving of this moral/economic protection that we are willing to make writing, music and painting part of the copyright/IP protection concept even though the value-neutral nature of the system means that anything written, composed, painted by, say, me would be afforded the same protection despite the vastly lower inherrent value of such work. But, clearly there is a point beyond which kind of protection is less well and properly applied, and the decision has gone the other way with respect to other classes of creative work. We simply do not have a workable system if everything that might possibly be deemed creative is afforded this level of protection.

So, as others have pointed out, the fashion industry does not have copyright/IP protection. To a certain extent this involves a value judgment. This is saying that we, as a society, do not think the creative work of Oscar de la Renta and Jean Paul Gauthier is as much "art" as the creative work of William Faulkner, Igor Stravinski and Pablo Picasso. More to the point, we have decided that fashion is not "art enough" as a class of creative work for us to afford such extraordinary value-neutral protection to this class such that the sweater your grandmother knit for you is just a protected as Calvin Klein's Spring line.

For me, while I can accept the argument that the body of work from, say, Ferran Adria is pushing the envelope more towards art than artifice, I'm unconvinced that his creative work belongs on the same pedestal with the works of Faulkner, Stravinski and Picasso. I am rather more inclined to think it belongs alongside the creative work of Oscar de la Renta. And if this leading light in the "food as art" movement does not quite equal the same standard as Faulkner, et al, and if indeed I am not convinced I see the possibility of any "creative work in the culinary medium" aspiring to that pedestal -- then I am not sure I believe the "culinary arts" should be afforded this kind of extraordinary IP protection, with the wide-reaching implications it must have in the value-neutral system. I guess I simply don't feel that Adria's work, as brilliant as it may be, and perhaps more importantly, the medium of food, are quite important enough and "art enough" for me to have automatic IP protection for every new cocktail I might invent.

[Fat Guy]

The standard is not whether the work of Ferran Adria is on the same level as the work of Faulkner. The standard is whether the works of Ferran Adria are "original works of authorship."

The following are categories of works that, according to the Copyright Office, are protected by the copyright laws. Many of these examples would seem to refute your analysis.

• Advertisements, commercial prints, labels

• Artificial flowers and plants

• Artwork applied to clothing or to other useful articles

• Bumper stickers, decals, stickers

• Cartographic works, such as maps, globes, relief models

• Cartoons, comic strips

• Collages

• Dolls, toys

• Drawings, paintings, murals

• Enamel works

• Fabric, floor, and wallcovering designs

• Games, puzzles

• Greeting cards, postcards, stationery

• Holograms, computer and laser artwork

• Jewelry designs

• Models

• Mosaics

• Needlework and craft kits

• Original prints, such as engravings, etchings, serigraphs, silk screen prints, woodblock prints

• Patterns for sewing, knitting, crochet, needlework

• Photographs, photomontages

• Posters

• Record jacket artwork or photography

• Relief and intaglio prints

• Reproductions, such as lithographs, collotypes

• Sculpture, such as carvings, ceramics, figurines, maquettes, molds, relief sculptures

• Stained glass designs

• Stencils, cut-outs

• Technical drawings, architectural drawings or plans, blue- prints, diagrams, mechanical drawings

• Weaving designs, lace designs, tapestries

See: http://www.copyright.gov/circs/circ40.pdf

I also respectfully submit that most of those who would deny that the works of Ferran Adria are serious art have probably not spent much time examining his work as documented in the El Bulli books. He is routinely called "the Salvador Dali of cuisine" by artists and observers the world over. I think by any standard that could be named, his work could be shown to be art to whatever extent it's ever possible to show anything like that. It would be an interesting exercise, but, for the purposes of the copyright laws, totally beside the point.

[slkinsey]

Well, some of the things I don't see on that list are "food" and "fashion" -- the two examples I used. I could just as easily say that "those who would deny that the works of Oscar de la Renta are serious art have probably not spent much time examining his work." And yet, high fashion does not have the kind of IP protection you are arguing should be extended into the class of culinary "works." Adria's stuff is great. But do I think it's in the same class as Faulkner or Verdi? No.

Just about everything on your list, by the way, boils down to "writing" and some form of "plastic art" (e.g., drawing, sculpture, painting, etc.) -- two areas that, as I mentioned before, we as a society have determined are worthy of special protection.

[akwa]

Well, some of the things I don't see on that list are "food" and "fashion" -- the two examples I used.  I could just as easily say that "those who would deny that the works of Oscar de la Renta are serious art have probably not spent much time examining his work."  And yet, high fashion does not have the kind of IP protection you are arguing should be extended into the class of culinary "works."  Adria's stuff is great.  But do I think it's in the same class as Faulkner or Verdi?  No.

Just about everything on your list, by the way, boils down to "writing" and some form of "plastic art" (e.g., drawing, sculpture, painting, etc.) -- two areas that, as I mentioned before, we as a society have determined are worthy of special protection.

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actually many of the items on the list refer directly to components of "fashion"

• Advertisements, commercial prints, labels

• Artwork applied to clothing or to other useful articles

• Jewelry designs

• Models

• Stencils, cut-outs

• Original prints, such as engravings, etchings, serigraphs, silk screen prints, woodblock prints

• Patterns for sewing, knitting, crochet, needlework

• Technical drawings, architectural drawings or plans, blue- prints, diagrams, mechanical drawings

• Weaving designs, lace designs, tapestries

in addition it would be straightforward to incorporate food into the preceeding (or other) categories

whether faulkner is more "worthy of special protection" than garfield the cat is personal taste, not a question of fairness of protection of original ideas.

incidentally, mentioning the books of ferran, which are indeed copyrighted, is the irony lost on no one that the copyright for original idea is only obvious in a retrospective?

[Fat Guy]

As explained above, 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."

The reason there is no specific protection for fashion design has nothing to do with the artistic merit of fashion design. In early copyright law theory, clothes were categorized as utilitarian articles. As fashion design has become more creative, the law has not yet caught up -- same story as with cuisine. But almost every legal academic who has studied the matter has written emphatically that fashion design is exactly the type of thing that should be protected by the copyright laws. The reason there has been no specific protection is that, until recently, the fashion industry never lobbied for it -- and indeed may have taken the short-sighted view that piracy can help with brand awareness. Now that the industry has largely gotten past that and is lobbying for copyright protection, there will surely be protection eventually. This is a good article from the New Republic summarizing the situation: http://www.tnr.com/doc.mhtml?i=w050314&s=raustiala031505