The merit of preservation

[Fat Guy]

"Plagiarists, at least, have the merit of preservation."

--Benjamin Disraeli

Over the past couple of weeks, we’ve seen significant discussion of culinary plagiarism and intellectual property issues. Most of those discussions have been at the expense of a lone Australian chef, whose copying was so thorough it made for a useful starting point for discussion: there were no shades of gray.

It’s time to move on from Australia. Culinary plagiarism is not endemic to Australia. It is a global problem.

In the time since we exposed the aforementioned incidents, several other examples of brazen copying have come to our attention. One in particular is, I think, worthy of close examination. The information came to me from the Washington, DC-based Proximo Restaurants organization, which is the creation of chef Jose Andres.

Over the past couple of years I’ve developed several ties with the Proximo organization, first as a customer pursuing a recommendation, then as a writer covering Andres’s restaurants online and in my book, and recently, when my book came out, we had the opportunity to do some joint promotion: a party at Cafe Atlantico, a joint television appearance, working together on a charity event. The extent of my relationships with Proximo gave me pause, however those relationships also gave me access, and I think you’ll see that this situation is not really a matter of opinion.

The links sent to me were to two reports (part 1, part 2) on a culinary blog site called tastingmenu.com. The reports chronicle a multicourse meal at a restaurant called Tapas Molecular Bar. The Tapas Molecular Bar is located on the 38th Floor of the Mandarin Oriental, Tokyo, hotel. The hotel website describes it thus:

Take a seat at our Tapas counter for a unique molecular-cuisine experience. In the course of about two hours our chefs will prepare 21 plates of bite sized delicacies before you, sushi-bar style, creating intriguing new textures and flavour combinations. This is the ultimate gourmet tasting menu, exploring the science of cuisine.

Looking over the extensive photography in the tastingmenu.com report (several of those photographs will be reproduced below under the Creative Commons license), one photograph jumped out at me right away:

This dish, called lobster injection at Tapas Molecular Bar, looked remarkably similar to a dish Ellen and I enjoyed, and photographed, at Jose Andres’s Minibar in Washington, DC, in February 2004, called lobster Americaine. The injection bulb is filled with a rich lobster stock, which you squirt into your mouth as you eat the lobster. Here’s our snapshot:

Another similarity seemed remarkable from the get-go, not so much for the photograph (are there any haute cuisine restaurants left that don’t serve a dish in a demitasse cup?) but for its totality. Tapas Molecular Bar calls this dish foie gras soup “chaud froid.”

At Minibar in February 2004, we were served “hot & cold foie gras soup.”

Needless to say, chaud is French for hot and froid is French for cold (although a chaud-froid dish is one that is cooked and then chilled, not one that is simultaneously hot and cold).

The chef at Tapas Molecular Bar is Jeff Ramsey. It should come as no surprise that Ramsey worked at Minibar from, according to Proximo, 1 July 2004 through 30 June 2005. Prior to that, Ramsey had been making sushi at Signatures, a restaurant around the corner from Cafe Atlantico, in which Minibar is located.

After befriending Minibar’s chef, Katsuya Fukushima, Ramsey was invited to work at Minibar and stayed for a year. In addition, according to Proximo, the executive chef of the Mandarin Oriental, Tokyo, Hide Yamamoto, dined at Minibar a number of times as a guest of Jose Andres when in Washington, DC.

Several additional photos in our collection of Minibar photos matched up against the Tapas Molecular Bar dishes shown in the tastingmenu.com report. I then asked the Proximo publicist for a full set of photos of the current Minibar menu offerings, as well as a copy of the current menu, as we have not had a proper Minibar meal in the past two years (though we have been to Cafe Atlantico several times since, and had some Minibar dishes).

All told, 15 courses of the Tapas Molecular Bar menu turn out to be near exact copies of Minibar dishes. Some have minor plating variations, but they are fundamentally copies. Here is a list, with the Tapas Molecular Bar dishes on the left and the Minibar dishes on the right. This list also reflects the order of service.

Sidecar = Passionfruit Sour

Crispy Beets = Beet Tumbleweed

Pineapple and Salmon Ravioli = Pineapple and Salmon Ravioli with Avocado & Quinoa

Glass of Wine = Desconstructed Glass of White Wine

Melon Tenderloin = Melon Tenderloin with Almond Espuma & Micro Salad

Linguine with White Sauce = Feta Linguine

Frozen Beet Soup with Scallops = Frozen Beet Soup with Bay Scallop

Foie Gras with Cotton Candy = Cotton Candy Foie Gras

Deconstructed Zucchini =Zucchini in Textures

Lobster Injection = Lobster Americaine

Foie Gras Soup - Chaud Froid = Hot & Cold Foie Gras Soup

Fish and Chips = Breaded Cigala

Niku Jaga = Meat and Potatoes

Vanilla Pate de Fruit = Saffron Gumdrop

Red Currant Marshmallow = Maracuya Marshmallow

Niku-jaga is Japanese for meat and potatoes, it turns out.

So far, I've been unable to contact the people behind Tapas Molecular Bar, however we would certainly welcome their comments.

Here are a few additional photographic illustrations, with Tapas Molecular Bar photos on top and Minibar photos underneath. Some of the Minibar photos are ours, and some are courtesy of Proximo. The Tapas Molecular Bar photos are all from the tastingmenu.com report.

In addition to the dishes and overall menu, the restaurant Tapas Molecular Bar itself is fundamentally modeled on Minibar. The counter arrangement, the small number of seats (6 at Minibar and 8 at Tapas Molecular Bar), the format and duration of the meal.

In short, Tapas Molecular Bar has copied not only a few menu items, but an entire restaurant.

The point of this examination, however, is not to single out Tapas Molecular Bar, though it surely deserves to be singled out. Rather, it is to demonstrate that there is a global culinary plagiarism problem that demands the attention of those who take the culinary arts seriously.

[Pan]

I think that since this is clearly an area that will be getting more attention on these boards, it is on-topic for there to be a short description of the definition and scope of the "Creative Commons license."

[pedro]

Would the situation change if proper credit would have been given? Recently, Adrià said (interview at Lo Mejor de la Gastronomía):

But also, the young chef often risks too much when it comes time to cook, wanting to invent his own cuisine on the first day. When I was coming up, we would take a dish from Girardet and the most we would ever do to it would be to add a little something here, or take a little something out. But the original reference always remained clear. Nowadays they don’t copy recipes, but rather techniques and concepts, hence the reference is far more abstract and if the young chef doesn’t already have clear ideas and a solid foundation, it is a dangerous path.

Well, now it's clear that there's some people out there copying recipes, but Adria seems to imply that there's a stage in the development of a chef when he has to become familiar with the foundations of cooking and that is done (or at least was done) through, essentially, copying. A different problem is how to market that.

Edit: Typo in the link. Thanks, sizzleteeth

Edited April 6, 2006 by pedro (log)

[andrewB]

Pedro,

This was an very insightful quote from Adria, thank you. It does raise a different idea of plagarism, that of technique. But can the word 'plagarism' be given to something like technique? Could we not compare raising a child to a chef raising a little cooky? Our children grow in our shadows, walk like us and talk like us; the same can be said of the chef/ cook relationship. How then can technique be plagarized?

The forementioned chef steven used as an example is a blatantantly plagarism in the fact that he used both a 'borrowed' technique AND didn't change the recipes or ingredients. what if he were to have done the lobster dish with cod and then filled the pipette with hlasle(spiced hungarian soup). Would this in an egullet opinion be indeed plagarism?

[FabulousFoodBabe]

Makes me think of my favorite TV show from 'way back, "Frank's Place." Set in New Orleans; two chefs claimed the same bread pudding recipe, and fought about who owned it. Finally, they duked it out. In a boxing ring. It was great!

BTW, children tend to have minds of their own; cookies pretty much do what we tell them to do.

I don't believe in "culinary plagiarism." The industry is based on teaching, training, spreading the word. I do believe that credit should be given as a matter of professional courtesy and morals. If it's not, well, it's not. But if it's made a 'law' in some way or other, that benefits plenty of attorneys and kills the spirit of the business.

Burger King used to base their expansion on McDonald's: saved them a bunch of money on site searches. That could be location plagiarism. And whoever tries to copy the Colonels' recipe is attempting to plagiarize. There's a good reason that, when people send "ideas" for products, ad campaigns or anything to a company, it's bounced back immediately. Too many people have the same ideas at the same time and getting them to the public can take a long time, or not.

More coffee, please. I'm rambling.

[Fat Guy]

Just to be clear on the locus of plagiarism: if the aforementioned chef had done the lobster dish with lobster -- exactly the same -- and said "This is a dish made at Jose Andres's Minibar in Washington, DC, USA," it would not have been plagiarism. Indeed, I'm hoping the Mandarin Oriental, Tokyo, writes to me today and says "Oh, we actually have a sign, prominently displayed at Tapas Molecular Bar, that credits Minibar with 15 of our dishes." Such credit isn't on the menu or anywhere else we could find.

The question of the degree of change necessary to make a dish one's own is a complex one. It's confused further by the nature of avant-garde dishes, where there's no uniform "main protein ingredient, sauce and two veg garnishes" arrangement. If every dish had those four components, one could draft a simple rule, e.g., "change the main ingredient or change any two of the other ingredients and you've changed the dish enough such that you're not copying it." With avant-garde dishes it's not as clear cut, but certainly in the lobster dish doing the same thing with beef would have taken it into the realm of inspiration rather than copying. I'm pretty sure there are a few restaurants out there using the injector now, and I think they all got it from Minibar or they and Minibar got it from some other common source, but as far as I know they all try to do their own thing with it. And on the rare occasion that Minibar copies a dish -- and I don't think this is even a real copy -- Minibar says so, for example the Minibar dish "Apples with red wine 'Freddy Girardet.'"

Pan, the Creative Commons license is used by some websites as a way of giving automatic permission for reproduction under certain circumstances. The tastingmenu.com license grants permission for reproduction so long as there is attribution, the reproduction is non-commercial and the originals are not altered.

[andrewB]

Wasn't it mozart who said there was no new music for there are only so many notes to be used and so many progressions?

[sizzleteeth]

Would the situation change if proper credit would have been given? Recently, Adrià said (interview at Lo Mejor de la Gastronomía):

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Pedro your link is off, remove the http://h, in the mean time it is here:

http://www.lomejordelagastronomia.com/ENG/...erran%20Adri%E0

I found this quote especially interesting:

Adria:

I also wanted to demystify the subject of “molecular cuisine”, which we think is basically a marketing ploy, not to mention the fact we have no idea where the term came from in the first place.

Though there is much throughout the interview to speak of.

Also:

Certainly abroad, when a new generation of young chefs comes on the scene that threatens the older generation with their strength and vigor, these established chefs and their loyal defenders wield my name around and associate it with the youth to attack them.

Which I've certainly been guilty of, when others have jumped on people's cases for copying.

Interesting to see his perspective on that issue.

Also the editorial that led up to that interview may be of interest:

http://www.lomejordelagastronomia.com/eng/...elec.asp?key=19

Edited April 6, 2006 by sizzleteeth (log)

[Pan]

Pedro,

This was an very insightful quote from Adria, thank you. It does raise a different idea of plagarism, that of technique. But can the word 'plagarism' be given to something like technique? Could we not compare raising a child to a chef raising a little cooky? Our children grow in our shadows, walk like us and talk like us; the same can be said of the chef/ cook relationship. How then can technique be plagarized?[...]

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I suppose if a technique could be patented, someone could violate the patent. But from my standpoint as a musician, the idea of plagiarizing a technique is ludicrous. All good musicians try to learn techniques developed by others.

[Sugarella]

With all due respect Fat Guy, I think you're flogging a dead horse here. I agree with FFB, there's no such thing as culinary plagiarism. A chef invites a stagiere into their restaurant to tutor them, to mentor and inspire them to take their culinary knowledge to new heights, or rather, the chef's ideas of new heights, in exchange for free work. This is not an employer-employee relationship, this is an apprenticeship, and apprenticeship means you're supposed to model yourself after your mentor. The stage is expected to copy their work exactly during service night after night, is expected to model themselves after the chef's style when developing new ideas, and it is assinine to then not expect that stage to be influenced during the time they've put in.

With your examples above, I think you're stretching. The terrine dish I'm sure I've seen elsewhere anyways, and the broad rice noodle dish is not even close. And how dare they consider using cotton candy (is that what that is?) if someone else has done it before!? So what if one restaurant looks similar to another? Maybe that's because that restaurant design works, the stage turned chef liked it, and also saw a similar restaurant design in dozens of other places he's visited.

You know, in the wedding cake world we have cake designers, and we have cake decorators, who by far outnumber the designers. Those of us who do design original ideas for clients occasionally put photos of those original designs on our websites, and we understand that by doing so, by putting a picture of an original design on a website, we have essentially published it. And at any given time a future bride will peruse cake websites, will find the cake she wants, go to someone local to her, and pay that person to make an exact copy of the cake we designed. Do we get pissy that we were copied? No, we get flattered, and 99.9% of us will actually help the other decorator out with the design if they choose to contact us as well.

I can't help but wonder if part of the issue here could have anything to do with the average levels of testosterone in haute cuisine chefs versus estrogen in cake designers.

[John DePaula]

I can't help but wonder if part of the issue here could have anything to do with the average levels of testosterone in haute cuisine chefs versus estrogen in cake designers.

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Touché !

[russ parsons]

yeah, i remember old augie escoffier, that dude would get a couple of cognacs in him and he'd start unloading on anyone who garnished consomme celestine with his damned panequets! bastards!

[PCL]

such a lot of fuss over a bit of floss

guys in white hats

arguing over who's the boss

just like dotty old bats

[Ducky]

Wasn't it mozart who said there was no new music for there are only so many notes to be used and so many progressions?

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And wasn't it Kierkegaard who remarked "If you steal from one source it's plagarism - but if you steal from several it's research."

[Fat Guy]

With all due respect Fat Guy, I think you're flogging a dead horse here. I agree with FFB, there's no such thing as culinary plagiarism.

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If people are persisting in the belief that "there's no such thing as culinary plagiarism," this horse is very much alive. It's not even injured.

To plagiarize is, per Merriam-Webster or most any other dictionary, to steal and pass off the ideas of another as one's own. It is fraud. To say "there's no such thing as culinary plagiarism" is to say that in cuisine there is no such thing as stealing and passing off the ideas of another as one's own.

Yet it has been demonstrated resoundingly now on two separate topics that culinary plagiarism is occurring: that chefs are stealing and passing off the ideas of other chefs as their own. Nitpicking a couple of the photographic comparisons when there is such overwhelming evidence -- menu comparison, ten sets of photos, restaurant comparison, biographical facts -- changes nothing.

Those who wish to grant the world a license to steal their work and not attribute, because they've allowed themselves to be convinced that there's no such thing as culinary plagiarism and no such thing as intellectual property in cuisine, are either very generous or very gullible.

[Ducky]

With all due respect Fat Guy, I think you're flogging a dead horse here. I agree with FFB, there's no such thing as culinary plagiarism.

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To plagiarize is, per Merriam-Webster or most any other dictionary, to steal and pass off the ideas of another as one's own. It is fraud.

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No - not on your facts.

If I copy someones particularly successful wardrobe am I committing satorial plagiarism? Perhaps - but so what? Does the person whose wardrobe I shamelessly copied have any legal remedies for my satorial plagiarism? No. Is this fraud? No.

"Passing off" (to which you refer) is not fraud - but rather a legal concept designed to prevent one person from misrepresenting his or her goods or services as having some association or connection with those of another when in fact they do not. So if Chef A copies a dish of Chef B, Chef A could only be credibly accused of passing off if, at the very least, he holds out his dish as having been created by Chef B - when in fact it was not.

Even if Chef A does hold out that his dish is one concocted by Chef B (when it was not) Chef B would still not have a proper passing off claim against Chef A unless Chef B could also demonstrate that he has suffered a financial loss because Chef A passed off his concoctions as being those of Chef B.

All of this is of course highly implausible on the facts you have provided. So this is not fraud. It is not passing off. It is perhaps rather simply an example of the old saw that "imitation is the sincerest form of flattery".

All first year law students learn the Latin maxim "des minimis non curat lex" - or "the law does not concern itself with trifles". And that is as it should be.

[Fat Guy]

Des minimis non curat lex was not part of the first year curriculum when I went to law school. In addition, it is false and it is irrelevant to the discussion of plagiarism.

Plagiarism is an issue of ethics, not of law. Many acts of plagiarism also involve breaches of the intellectual property laws, but they are not the same.

[inventolux]

FG is right.

There is 1 of 2 things happening right now in tokyo.

1. This entity has coincidentally stumbled upon a concept and close to exact replications of Jose Andreas's Mini Bar in DC. (Chances are maybe 1 in a billion)

or

2. This entity has royally screwed up and tried to make large sums of money by blatently copying a damn near entire concept right down to the recipe details of Jose Andreas's concept which has taken him over 8 years to create.

Im sure they are thinking we need one of these bars in every Mandarin Orient Hotel around the world! Think again.

My beef here is that its the Mandarin Orient Hotel (which is a very large entity)behind this and they need a good ass kicking for being so damn irresponsible and allowing this to happen. I remember JA talking about this concept over 5 years ago and trying to make it happen over the years through hard work and determination. So this isnt cool. Here is a classic case of the big guy thinking he can roll over the little guy. Thats just not going to work and I fully support this thread.

[Fat Guy]

1. This entity has coincidentally stumbled upon a concept and close to exact replications of Jose Andreas's Mini Bar in DC. (Chances are maybe 1 in a billion)

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Chances are 0 in a billion. The chef at Tapas Molecular Bar, Jeff Ramsey, worked at Minibar for a year.

What I don't get is why Mandarin Oriental didn't just offer Jose Andres a consulting fee to set up a Minibar branch at their hotel in Tokyo. It can't be because Mandarin Oriental is run by cheapskates. I wonder if anybody in upper management even knew this was a knockoff.

[inventolux]

1. This entity has coincidentally stumbled upon a concept and close to exact replications of Jose Andreas's Mini Bar in DC. (Chances are maybe 1 in a billion)

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Chances are 0 in a billion. The chef at Tapas Molecular Bar, Jeff Ramsey, worked at Minibar for a year.

What I don't get is why Mandarin Oriental didn't just offer Jose Andres a consulting fee to set up a Minibar branch at their hotel in Tokyo. It can't be because Mandarin Oriental is run by cheapskates. I wonder if anybody in upper management even knew this was a knockoff.

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They dont care, they only see dollar signs. Hopefully someone of integrity in that company will hear about this. If the chef of this Molecular Bar has any integrity then he will either change his menu into his own vision or give Andreas the credit and capital he deserves.

Edited April 7, 2006 by inventolux (log)

[Fat Guy]

Even if that's the case, consider all the hotels in Las Vegas that only see dollar signs. They understand that it's good business to license copies of restaurants from their celebrity chef creators. Surely a legitimate Minibar branch, especially in Tokyo, would bring prestige to the hotel. And when it comes to the dining program at a hotel, isn't that what it's all about? They're not making serious money from dining -- in fact they may be losing money. Rather, having prestigious restaurants in your hotel increases your hotel's stature and therefore allows you to charge higher room and conference rates.

[reachej]

FG, does the fact that the lobster on the pipette is an El Bulli dish (except that theirs was a prawn) affect your thinking? I'm not sure I think it's a bad thing, but where do you draw the line? Seems to me you're arguing against that kind of thing.

[Fat Guy]

The pipette technique definitely comes from El Bulli -- there were several El Bulli dishes that used pipettes, such as the cold prawn and prawn head on a pipette -- however Jose Andres has done his own dish. This is how inspiration and creativity are supposed to work.

Moreover, Andres has always credited Ferran Adria as his mentor and inspiration. He is Adria's man in the United States. Everything Andres does is above board and out in the open. There's no ethical issue, and were there a legal issue he'd clearly have permission from Adria to incorporate select El Bulli concepts into Minibar dishes -- as far as I know Adria couldn't be more proud of Andres and is totally aware of and supportive of all that Andres does. This description from the South Beach food festival of a dinner honoring Adria is a typical illustration of the Andres-Adria relationship:

Join Jean-Luc Naret, Director of the Michelin Guide, in welcoming Anthony Bourdain, emcee of this historic dinner spearheaded by Adrià's good friend José Andrés and featuring the creations of some of the world's top Spanish-influenced chefs in a salute to the master of their cuisine.

However, while Adria and Andres have an ongoing mentor-mentee relationship, Andres is one of the most original chefs of our time. He's the ideal of the disciple who has made it big: he put in his time at El Bulli, he learned not just how to make El Bulli's food but also how to think about cuisine for himself, he kept in close touch with his mentor, he uses El Bulli as a springboard but goes in his own directions, he is open about his inspirations and his sources, and he has been an incredibly successful businessman. You don't have to lie and deceive in order to be successful. Attribution costs nothing.

[pedro]

Quoting Juli Soler, Adrià's partner, on José Andrés --or as the people at elBulli call him, JR (yes, referring to that JR)--: "we've always been in touch, he's like one more of our family."

PS: I don't know exactly where or when, but as expected, JA lost his middle name, Ramón, when he moved to the States.

[andrewB]

What I don't get is why Mandarin Oriental didn't just offer Jose Andres a consulting fee to set up a Minibar branch at their hotel in Tokyo. It can't be because Mandarin Oriental is run by cheapskates. I wonder if anybody in upper management even knew this was a knockoff.

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i think this is an issue which happens on an international level: something borrowed from one continent or another with the thought that the distance between the original source and its 'subsidiary' is great enough to mask its identity. This is a common thing in places in europe where i am...