The merit of preservation

[Fat Guy]

Actually, Steve, if someone were to steal, reverse engineer, or otherwise appropriate Coke's or KFC's trade secrets and try to use them for profit in a commercial venture, it would be unlawful and the aggrieved party would have a cause of action.

That's not what I learned. Stealing -- such as breaking into KFC's vault and stealing the recipe -- is of course stealing. But if a trade secret can be reverse engineered, that's just fine.

REVERSE ENGINEERING

A trade secret may be lost by selling or displaying a product, outside of an obligation of confidentiality, where the "secret" of the product can be discovered upon inspection or by reverse engineering. It is not a misappropriation to discover a trade secret "properly" by reverse engineering.

--From patentideas.com

Also, with a cookbook, it is not the recipes themselves, but the publication that is protected.  I you publish a cookbook containing Tex-Mex recipes and I publish a cookbook of "Cowboy Cuisine" and they both have chili recipes that are virtually identical, then there is no compensable injury.

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A listing of ingredients, without more, is not eligible for copyright protection. A cookbook certainly is, as should be, I believe, a dish served in a restaurant. What is being protected is expression. In the case of a book embodying culinary creativity, what is protected is the expression of that culinary creativity. For processes and designs, patents are available. And for names, trademarks.

[Fat Guy]

Uhhh, I'd say creating a dish is exactly like a piece of music.  The music only exists as long as your ears can hear it, then it's gone.  You fix it on sheet music (or in a recipe) to preserve it so it can be reproduced.  But the copyright is on that first performance, of music OR food.

Uhhh, no it isn't. There is no copyright on "that first performance" of a piece of music. There is only a copyright on the score of the music. The only time a performance can sort-of be copyrighted is when it is recorded. And, even then, the performance isn't copyrighted -- the recording of the performance is.

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Yes, I don't think the parallel to music copyrights will get us anywhere. Dishes served in restaurants are much more analogous to sculptural creations, like the works of Michael Graves sold in quantity at Target. This is surely the subdivision of the copyright act under which one would make a case for protecting a dish like prawn noodles. One might also patent the process. One might also trademark "PrawNoodle®."

[andrewB]

actually i have had to sign a confidentiality contract before so they are around!!!

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No way! Where? Did it apply to the food you cooked, or the people you worked for? What were the terms, if about the food?

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it was in the states and applied to the food and recipes used in the kitchens. It was an understanding that the recipe books which were used in the kitchen were not to be copied or re created. I vaguely remember an incident with someone 'stealing' the books, bringing them home and copying them after a shift. Can't remember what the consequences were however...

[Fat Guy]

no copyright was applied for and no trademark or patent was filed

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One does not apply for a copyright. Copyright exists the moment you create unique expression. What you can do is register a copyright by depositing a copy or rendition of your work (for example, a copy of your computer code) in order to have evidence on file with an impartial government source, in the case of the US that would be the Copyright Office:

Do I have to register with your office to be protected?

No. In general, registration is voluntary. Copyright exists from the moment the work is created.

[John DePaula]

I know that this is a serious topic… And I intend no disrespect… But there are some great zingers here! Maybe we should publish a book of eGullet Zingers (copyright protected and appropriate attribution given to sources, of course).

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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If I copy someones particularly successful wardrobe am I committing satorial plagiarism? Perhaps - but so what?

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Imitation is the highest form of flattery, blah blah blah.  I just can't get my thong in a twist over this.

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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.

Oh, please. just say "dumbass" and get it over with.

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[Fat Guy]

DumbAss

[russ parsons]

one question more: has the chef at the oriental ever claimed that his dishes were his original inspirations? or, as i think is probably more likely, has he credited him informally by saying in interviews that he learned a lot working for jose? this is not the same thing as crediting him on his menu, but if i recall, jose doesn't credit adria on his either.

this is a game that has been going on for decades (that i'm aware of) and possibly centuries (thank god i'm not that old). i once proposed a story tracing the family tree of some famous dish. didn't get accepted, but imagine trying to trace the lineage of robuchon's mashed potatoes?

certainly, it's frustrating for the chefs who are copied from. and certainly, they will bitch about it in private (and then, sometimes, smile abashedly when it's pointed out that their creation owes a bit to someone else's). it's part of the cooking game, just like complaining about no-shows.

[Sugarella]

One does not apply for a copyright. Copyright exists the moment you create unique expression.

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I'm well aware a copyright exists from the moment a work is created, but it's pretty much useless unless registered, or at least documented with a third party witness in some way.

I don't need a lesson on patents and copyright...I have 1 patent already and am working on making it international, and have 2 registered trademarks as well. (on a method/formula not a design) I have spent nearly 3 years getting the first patent and will likely spend another 2 on the next, and the entire thing will cost me about $40000 by the time I'm done, if I'm very lucky. I don't even make that much a year. I am a low income earner (hey - there's the "stupid" again) so that is an awfully big stretch for me to get all of this done without any financial backing or support. So excuse me if I don't think slapping some food on a plate and calling it intellectual property carries any weight.

[sizzleteeth]

The writing of literature, composition of music, sculpture etc etc. are all optional activities that are not essential.

Food is essential to living, as is arguably cooking - and cooking is practiced by nearly everyone on the planet, every day.

The writing of literature, composition of music, sculpture etc etc - are not and contain far greater individual expression than any dish ever will, including the platings.

Especially platings churned out by other people at the rate of 1 every 12 seconds.

When we cook, we cook in virtual ignorance of what every other person, at their home, in their restaurant, at their commercial R&D food job etc, is doing.

So really, if someone is the "first known" to do something with food, should they own it because they published it first - or are the odds overwhelming that similar - if not the exact same things are being done elsewhere - even if it is at Nestle?

Speaking of Nestle, I have another question....

There is little more research or technique in what any Avant Garde chef is doing than there is research or technique in what Nabisco, Nestle, Kraft and McDonald's are doing - better ingredients and prettier plating maybe - but that's about it.

There is little more art or technique in the food being produced than there is art or technique in Orbitz Soda, Dippin' Dots, Pizza Flavored Doritos, Cold Set Fish Kabobs, Pickled Pimento Loaf, Splenda, Tofurky, Quorn, Cool Whip Non-Dairy Whipped Topping, Mountain House Freeze Dried (Lyophilized) Emergency Foods, Edible Pictures on Birthday cake or the individually intricately designed elements of a Big Mac - are those things to be held in the same regard?

Are Cool Ranch Doritos "High Art"?

Are Orbitz Soda and Dippin' Dots "Haute Cuisine" or "Avant Guard Cuisine" in the same vein?

If not why not and if so... why?

And if so, do the giant corps deserve any credit in this?

Edited April 7, 2006 by sizzleteeth (log)

[Fat Guy]

one question more: has the chef at the oriental ever claimed that his dishes were his original inspirations? or, as i think is probably more likely, has he credited him informally by saying in interviews that he learned a lot working for jose?

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I agree that if the chef has been out there on the interview circuit crediting Andres, and if he speaks frankly about it to the customers, it does go a long way towards establishing good faith. We've been trying to get the Mandarin Oriental to tell us if this is the case. I'll report back as soon as we hear anything. What we do know, as stated in the first post on this topic, is that the hotel's website says:

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.

(emphasis supplied)

At the same time, I think the question "has the chef at the oriental ever claimed that his dishes were his original inspirations?" needs a little more examination. For example, have you ever actually claimed that one of your books is your original inspiration? Or, rather, is it understood that by putting your name on the cover you're claiming credit? In the culinary context, the chef isn't likely to come out into the dining room and say "Zees ees my creation!" (Actually, I think that happened to me once, but I can't remember where -- still, it's atypical). Rather, the claim is made by serving this sort of cutting edge cuisine under the restaurant's roof, from a menu with the restaurant's name on it. If the restaurant is also being advertised as creative, original, unique, etc., that's even worse.

(edited to add the quote)

[Fat Guy]

The writing of literature, composition of music, sculpture etc etc - are not and contain far greater individual expression than any dish ever will, including the platings.

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If you think the work of Britney Spears has more artistic merit than the work of Ferran Adria, you're certainly entitled to that opinion. But you're wrong. Not to mention, if you're visiting El Bulli because you're hungry . . . .

[sizzleteeth]

If you think the work of Britney Spears has more artistic merit than the work of Ferran Adria, you're certainly entitled to that opinion. But you're wrong. Not to mention, if you're visiting El Bulli because you're hungry . . . .

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Damn... why is everybody always connecting me to Britney Spears?

I said nothing about merit Fat Guy, but your comments give me pause on that part of my post.

[slkinsey]

The writing of literature, composition of music, sculpture etc etc - are not and contain far greater individual expression than any dish ever will, including the platings.

If you think the work of Britney Spears has more artistic merit than the work of Ferran Adria, you're certainly entitled to that opinion. But you're wrong. Not to mention, if you're visiting El Bulli because you're hungry . . . .

First of all, to the best of my knowledge Brittney Spears is a performer, not a composer. Therefore it is more appropriate to compare her to a line cook at El Bulli rather than Ferran Adria (or perhaps a cook at Olive Garden?). But here, as you have pointed out many times, we're talking about ethics and not law. Brittney Spears recordings have certain IP protections because of copyright law, but I for one don't feel that there is a great ethical obligation there.

If you're asking whether I think the work of Giuseppe Verdi and Pablo Picasso have more artistic merit than the work of Ferran Adria, if I feel that Otello and Guernica are far greater artistic expressions than melon caviar and carrot air. . . Yes. Yes, I do. And this is not taking anything away from Adria's brilliance.

[Fat Guy]

Britney Spears is credited as the or an author of many of the songs she performs, e.g., in the On the Line soundtrack:

"Let Me Be"

Written by Britney Spears, Brian Kieruff and Josh Schwartz

Performed by Britney Spears

Courtesy of Jive Records

Surely you know that trying to pull this back to the greatest composers and artists of all time misses the point. The worst composers, writers and artists of all time are equally protected under the law and by the conventions against plagiarism. No matter how bad your work sucks, it's protected just as much as the Mona Lisa and the Ode to Joy. Surely there are several million examples of copyright-protected and plagiarism-protected work that has far less artistic merit than Ferran Adria's worst dish on his worst day.

[slkinsey]

Heh... I forgot about your vast library of Spearsiana.

Steven, I absolutely agree on that point. But I have some question as to whether the works of Brittney Spears deserve the same kind of IP protection as the works of Giuseppe Verdi (which, ironicaly, do not have any such protection).

And, that's part of what I have been trying to say: People are arguing that Adria and Dufresne ought to have legal IP protection for their "artistic works" and yet, as you say, "no matter how bad your work sucks, it's protected just as much as the Mona Lisa and the Ode to Joy" (again ironically, both works for which I doubt any IP protection exists). So, here's the deal: You want to give Adria and Dufresne IP protection after they "publish their artistic works" by serving them in their restaurants. . . you had better be prepared to do the exact same thing for the guy who figures out a way to make cheese-stuffed hot wings.

[K8memphis]

I can barely see the other side of this. Cake deco people have been hounded for decades by copyright issues. And those issues cross purposes before we get zapped for thousands of dollars. We do not make money because we make a mass media, mass marketed Mickey Mouse cartoon or movie or t-shirt. We take a nationally loved character to adorn Susie's birthday cake and I'm telling you the lawsuit frenzy is for real. Movies to birthday cakes, t-shirts to cakes--it's not even close to equal.

If someone is making money on somebody else's designs to the tune of 15 equally created dishes in the same type of restaurant--directly plate to plate, that's gotta be at least unethical, if not much more than unethical.

[FabulousFoodBabe]

Okay -- some of the examples were total ripoffs. I'm sure most of us can think of a dozen more. However -- using the music and art examples, at what point would a chef lose his/her "copyright"? A song is written, played with, produced in a studio, cut, and out there, the same thing for everyone. A sculpture isn't produced fifty to a hundred times a day. What's done is done!

As has been said a dozen times before, food is fluid. What if a chef decides that the fennel is too fragrant NOT to use to scent a sauce? The food isn't the same every single day unless it's produced by a machine.

And while you might claim DumbAss, FG, I've been using thong in a twist for a while now. Hands off!

[Fat Guy]

You want to give Adria and Dufresne IP protection after they "publish their artistic works" by serving them in their restaurants. . . you had better be prepared to do the exact same thing for the guy who figures out a way to make cheese-stuffed hot wings.

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That guy is a genius!

Whether or not we think it makes sense (and I may think it makes sense), neither copyright law nor the ethics of plagiarism has anything at all to do with the merit of the work being protected. In the case of copyright law, governments have -- probably wisely -- chosen a value-neutral approach so as not to be in the business of judging the merit of art (though they turn around and judge the merit of art in many other government-administered programs...). In the case of plagiarism ethics, the offense of plagiarism is mostly about the doer -- in other words the failure to attribute; the passing off of someone else's work as your own. The quality of the work has little to do with it. If someone is stupid enough to choose to copy Britney instead of Verdi, that doesn't make the person any more or less ethical or any more or less of a plagiarist.

[slkinsey]

Okay -- some of the examples were total ripoffs.  I'm sure most of us can think of a dozen more.  However -- using the music and art examples, at what point would a chef lose his/her "copyright"?  A song is written, played with, produced in a studio, cut, and out there, the same thing for everyone. A sculpture isn't produced fifty to a hundred times a day.  What's done is done!

As has been said a dozen times before, food is fluid. What if a chef decides that the fennel is too fragrant NOT to use to scent a sauce? The food isn't the same every single day unless it's produced by a machine.

Well... not exactly. It was once commonplace for operatic composers to rewrite, rescore or reconfigure their operas in order to suit the singers and orchestral players who would be performing them. Mozart's Don Giovanni, for example, actually exists as two discrete versions of the opera -- the original version for performance in Prague with a strong tenor, and an adjusted version for performance in Vienna with a weak tenor and a strong seconda donna (interestingly, the currently performed "standard edition" is a combination of both versions, which was never contemplated by the composer). This is roughly akin to your example of deciding to use a little fennel one day because it is so fragrant (or to not use any fennel one day because it isn't very good).

Whether or not we think it makes sense (and I may think it makes sense), neither copyright law nor the ethics of plagiarism has anything at all to do with the merit of the work being protected. In the case of copyright law, governments have -- probably wisely -- chosen a value-neutral approach so as not to be in the business of judging the merit of art (though they turn around and judge the merit of art in many other government-administered programs...). In the case of plagiarism ethics, the offense of plagiarism is mostly about the doer -- in other words the failure to attribute; the passing off of someone else's work as your own. The quality of the work has little to do with it. If someone is stupid enough to choose to copy Britney instead of Verdi, that doesn't make the person any more or less ethical or any more or less of a plagiarist.

Right, but that's what we're saying here. In the other thread, I brought up the example of Outback Steakhouse's "Bloomin' Onion" which has been widely copied and never credited (if indeed theirs is the original). People seemed to feel that the Bloomin' Onion is not deserving of the same legal or ethical considerations as Dufresne's prawn pasta. You're saying here (and I have been saying) that, given a value-neutral approach, it is.

[Swisskaese]

Copyrights usually last 70 years, with the exception of Mickey Mouse.

[Fat Guy]

A sculpture isn't produced fifty to a hundred times a day.  What's done is done!

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Many sculptures are produced twice, a dozen times or even hundreds or thousands of times a day. You might find "An artist and her copyright story" interesting in this regard. It tells of a sculptor, Impala Lechner, who created a bronze sculpture, "Geese in Reed," which was widely copied, including in mass-production scenarios. She had registered the copyright, and she pursued many successful legal actions around the world.

[slkinsey]

Yep. And there are many castings of Rodin's "The Thinker."

[Fat Guy]

And when those sculptures are reproduced, if the process involves hand labor, there are going to be variations from sculpture to sculpture. So long as they're within a range, it's still a copy. The technical aspects of how much variation is required to make a new work need to be worked out per art form, but it's not an insurmountable intellectual challenge.

[Ducky]

Food is essential to living, as is arguably cooking - and cooking is practiced by nearly everyone on the planet, every day.

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This is an important point. We need to eat to live. Only the most narcissistic of chefs could seriously maintain his creations should have some sort of protection as intellectual property. Good God, are our heads that far up our collective bums?

Someone also made the art/craft distinction upthread. Articulating what that distinction is will of course open an enormous can of worms - but I think that most thinking people have a sense for the difference.

The preparation of food will for me always be a craft - not an art - and as such not a proper subject for intellectual property protection. I suppose reasonable men could differ on this point. Actually, I take that back: reasonable men could not differ on this.

[Fat Guy]

People seemed to feel that the Bloomin' Onion is not deserving of the same legal or ethical considerations as Dufresne's prawn pasta.  You're saying here (and I have been saying) that, given a value-neutral approach, it is.

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I should probably be more precise:

I'm saying that anyone's opinion saying that the Bloomin' Onion® (the name, including a backwards apostrophe, is a registered trademark) is not particularly good or brilliant (actually, it's not bad either -- it's just about the only thing at Outback that isn't bad) is neither here nor there when it comes to copyright law or the ethics of plagiarism.

There is still, however, a question of originality, both in the sense of first and in the sense of creation. Just as there can't be copyright protection for the statement "1 + 1 = 2" there probably shouldn't be copyright protection (or any plagiarism ethics issues) surrounding a fried onion. There's probably a legitimate debate to be had on the issue of just how different the Bloomin' Onion® is from a run-of-the-mill fried onion, just as there are similar debates all the time with respect to paintings, sculptures, songs, etc.