The merit of preservation

[FoodZealot]

It seems to me that what is needed is something like the Creative Commons license for cooking endeavors. People who create media (in this case, food) choose what protections they want. In most cases, chefs would grant automatic license to use their work product, and in return, they probably would only want attribution (credit).

The major difference is that the majority of the time, attribution would be assumed and implicit. For instance, if a chef had worked or staged at TFL or Urasawa or el rey de hamburguesas, everyone would know that that relationship was mentor-mentee, and some influences, great or small, are naturally part of that process.

For the most part, the only people that would know or be interested in the CV of the chef in question would be food enthusiasts, and so they would know the provenance of famous dishes. They would understand that cooking is a complicated system of homages to heroes, history, the vagaries of nostalgia and interpretation (as well as the problem of not all tomatoes tasting like all other tomatoes), and thus the attribution would be understood (being assumed and implicit). Since that is the case, it would not be strictly necessary to attribute on menus, but doing so judiciously would be considered "good form."

If called upon to make such relationships explicit, whether by an interviewer or a patron, the chef should absolutely disclose any such relationships, e.g., "I worked at ________ for a year, and I learned a lot there." Failure to do so would be considered "unethical, and bad form." Possible consequences might be public embarassment, bad publicity, and a faulty conscience.

Wholesale reproduction of dishes, menus, and the restaurants themselves without attribution would be to be a violation of the license, and considered "unethical, and bad form." Possible consequences might be public embarassment, bad publicity, and a faulty conscience.

Net change from current system: none, except lawyers can create an organization and the requisite documentation.

Unfortunately, it would still be less than perfect.

~Tad

edit: changed the tense of the last sentence

Edited April 8, 2006 by FoodZealot (log)

[Fat Guy]

While we could certainly discuss whether the Creative Commons license is an idea that chefs should embrace, they can't embrace it without first having copyright protection. Without copyright, the Creative Commons license can't exist. The underlying premise of the Creative Commons license is the "all rights reserved" notion of copyright. And the Creative Commons license is voluntary: the copyright holder can, out of generosity or any other motive, grant a Creative Commons license, or not.

It all has to start with copyright protection for culinary works. And as I think has been demonstrated many times over now, it is absurd to single out cuisine for exclusion from copyright protection. Idiotic bumper stickers like "Frankly scallop I don't give a clam" can have copyright protection. The piece of crap artificial plants they sell at the dollar store can have copyright protection. "Believe in yourself!" greeting cards can have copyright protection. The ugly quilts my aunt makes can have copyright protection. The cover "art" on every talentless garage band's homemade CDs have copyright protection, as do any original songs. All the ugly dreck they sell from carts in the middle of shopping mall concourses -- the stuff that's too ugly and lame even to make it into a real store -- can have copyright protection. Every post on this topic -- even the ones that are ill-informed and completely inaccurate -- has copyright protection. But the works of serious artists like Ferran Adria shouldn't?

[mark922]

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.

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Why shouldn't there be protection for a fried onion, Steve? If you are going to take the position that creative food craft (yes, it was me I who made the distinction) should be protected, why isn't the creativity that went into conceptualizing the cutting of an onion in a blossom pattern, followed by battering and frying as worthy of protrection as thinking of taking an emulsion and sticking it into a squeeze bulb? Either way, it's an original use of a known quantity.

That's why I made the point about cooking being a craft and not an art.

I should pint out that there is one exception to my argument that I am aware of. Homaro Cantu's use of edible papers and inks to create printed food is truly a quantum leap from anything that has previously been thought of as food or food preparation. I would argue that it is an example of something that should be protected as truly new art in an intellectual property sense.

[mark922]

The protection applies to every single person on earth for every dish they make every day of their lives.

Chefs and home cooks alike - just like all other copyright.

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Awe c'mon - isn't anybody gonna disagree?

Isn't somebody gonna step up and become the culinary Hitler that will implement a blanket "Culinary Caste System" that divides cuisine into categories and levels beyond an individual's perception, write down the rules and decide who deserves protection and who gets excluded?

Surely there is someone among us willing to take on that responsibility, yes?

OK.... I'll make it easier - how about we make it a council?

A panel of judges????

Or how about we just go by whatever the James Beard Foundation says?

Or why don't we just leave it that everybody gets protection and watch the knives fly?

This is gonna be fun... get me my "Stabbin Knife"!!!!!!!!!!

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Nope. Ilike your original premise. Even Sandra Lee and her "semi-homemade" recipes are original works.

[Fat Guy]

There couldn't be protection for a fried onion as such, but there might be protection for a unique variant of the fried onion. Is the Bloomin' Onion® such a unique variant? I imagine Outback didn't invent the idea of cutting off the top of a Vidalia onion, battering it and frying it so it looks like a flower. I think I remember seeing "blooming onion" on restaurant menus before Outback even existed, but I'm not sure. Perhaps someone else would know. If it is truly an original creation of Outback, then yes, I think it deserves copyright protection. If they made a distinctive sculpture of a flower out of plastic -- say a rose with dogs on the end of each petal or something unique -- they'd have copyright protection. If it is their original work, why should they all of a sudden lose that protection because they made it out of an onion instead of out of plastic?

[mark922]

So who get's to decide who is Haute enough for protection ? Whole new can of worms.

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Finally, Grandma's secret biscuits and gravy recipe is gonna get the protection it deserves and she might tell us all the secret - knowing she can sue our ass.

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Sorry but thats already public domain, in fact I think I will print out an exact copy of them and then throw on some sausage while Im at it. There is a major difference here.

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But will the copies taste like Granma's biscuits and sausage gravy? Andif so, can I come try them?

[BubbleheadChef]

I am certainly not a lawyer. Not a chef (is that word trademarked? Chef ?) I am simply a cook. The title Chef impies (to me at least) that a person has completed a certain amount of schooling, externship, and considerable work experience. Upon graduation from Culinary School, I don't believe that gives you the title Chef. I am the leading Cook onboard a submarine and I copy menu ideas from all of my peers everyday. How I interpret them is completely up to me and my guys will not make things the same way as the guy I "borrowed" the menu idea from. I don't put credit on my menu that I sign and post for everybody onboard and visitors alike to read. Perhaps that makes me a plagarist and worthy of being publicly humiliated and considered that is considered bad form. I certainly don't claim to be Haute Cuisine but in my humble opinion, my operation is at least one step up from a large burger chain with a clown or a king as thier mascot. I don't know if we consider that and elBulli equal, either, but like I said, I am simply a cook. I think the issue here is less legal and more personal. One of the things that keep me going to work everyday is the fact that I can look MYSELF in the mirror and know that I did my best. If I was making money off somebody else's idea, passing it off as a "unique experience"; I would be a thief. Maybe not by a court of law or a jury of my peers, but by myself. If you feel that strongly about something that somebody else does, make a personal choice not to patronize that particular company.

On the flip of that coin:

For the people that may not have access to the original, isn't the copy a unique experience to them? Isn't it still the chef/cook/owner that has to live with the fact that he is a fraud?

Sorry about the ramble, just wanted to chime in.

[FabulousFoodBabe]

I'm really hoping that this whole thread was started out of the desire to discuss/debate something, not because anyone really thinks it's a good idea -- recipe registration, forcing credit to be given, and punishing in any way when it's not. I am SO with Bubbleheadchef: it's a personal moral thing. Legislating that behavior in any way is bound to backfire ...and bound to not change people who don't have it in them to begin with.

However. May I please, please please, be in the room when you tell chefs who is considered "copy-protection-worthy" and who isn't?

[butterscotch]

the way i see it bubble, is that your dining room is not a commercial enterprise and not attempting to compete in any sense with the places whose recipes your using. you are hired to feed those people as best you can, not choke everybody with exhaust fumes (how do you do that, anyway?) and you're doing that the best way you can.

you're not pretending your submarine is the hip new creative epicenter of the food world and gassing off on how YOU devised these recipes, are you?

i hope not, because i have a feeling those on the sub don't have much personal choice in who to patronize.

I am the leading Cook onboard a submarine and I copy menu ideas from all of my peers everyday.  If I was making money off somebody else's idea, passing it off as a "unique experience"; I would be a thief.  Maybe not by a court of law or a jury of my peers, but by myself.  If you feel that strongly about something that somebody else does, make a personal choice not to patronize that particular company. 

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[robyn]

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.

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I'm in Japan now (Osaka - just spent almost a week in Tokyo) - and I doubt there are 100 people outside of the international restaurant community (people like Bruno Menard at L'Osier - who we ran into the other day) who have ever heard of Minibar or Jose Andres (of course - it's not exactly a household name in the United States either).

I am far from an expert in Japanese intellectual property law - but I think if there were any intellectual property to protect here - the Japanese would protect it. Much more than it would be protected in the United States. From what I have seen so far - this is a country where every Louis Vuitton purse (and there are tens of thousands of them) is real - every Disney watch in the electronics stores is authentic - and every DVD is a licensed copy. A far cry from the United States and other places - where fakes and knockoffs of various items probably outnumber the originals by 100 to 1. So if there are any chefs who are aggrieved by anything they see happening in Japan - I suggest they contact a Japanese lawyer. Robyn

[Vadouvan]

This is a great thread but the fact is at the end of the day, plates of food in restaurants are never going to be patented besides in a certain hypocritical way, arent all the supposedly "molecular gastronomists" in the US copying Ferran Adria/El Bulli ?

I mean really isnt that the pot calling the kettle black ?

So what if someone else served a lobster piece and bisque in a pipette, isnt it all copied from el Bulli anyway ?

I could very well be wrong, if I am someone please explain to me.....?

[Fat Guy]

As in any movement, there are founders. In the case of impressionism in art, you have Cezanne, Renoir, Sisley, et al. In the case of rock music you have Little Richard, Elvis Presley, Chuck Berry, et al. In the case of molecular gastronomy it's Ferran Adria, Herve This, et al. The paintings of later impressionists and post-impressionists are certainly inspired by those of the early impressionists, and decades of rock music owe a debt to Chuck Berry and the other early rock musicians, but you'd never say "All impressionist paintings are just copies of Cezanne" or "All rock is just a copy of Chuck Berry." The difference between working within a style and copying is similar to the difference between inspiration and plagiarism.

[sizzleteeth]

In the case of molecular gastronomy it's Ferran Adria, Herve This, et al. .

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Though I wouldn't completely dismiss the role of TIC Gums (which was established in 1909).

For $45 you can Order Their Book which they call a "culinary kit" - it explains all about hydrocolloids, gums etc etc.

Try some on your own at home.

[pedro]

In the case of molecular gastronomy it's Ferran Adria, Herve This, et al. .

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Though I wouldn't completely dismiss the role of TIC Gums (which was established in 1909).

Absolutely. I woudn't dismiss either the importance of whomever created oil painting in the history of painting back in the Middle Ages.

[Pan]

Cezanne was not an impressionist painter; the really big impressionist name that should be mentioned with the others above is Monet. Also, oil painting (at the very least for things other than shields) was an innovation of Jan van Eyck in the 15th century, and paintings from the Middle Ages used tempera, not oil. This Wikipedia article asserts that "[o]il paint was probably developed for decorative or functional purposes in the High Middle Ages," so Pedro, it looks like you are right about the date of its invention as a process, but keep in mind that tempera and not oil paint was used for paintings until van Eyck and his followers came on the scene. Sorry for the digression; it's a habit for me to address this kind of question because my father is a painter.

Edited April 20, 2006 by Pan (log)

[Fat Guy]

Cezanne was not an impressionist painter

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He was from 1872 to 1877. See, e.g., The House of the Hanged Man. Not that it changes the argument.

[RMeierdirks]

I have taken recipes and platings from one restaurant I worked and recycled it in another to varying degrees. Anywhere from subtle ingredient variations to to using the germ of an idea to go in a completely different direction. However, I have never reproduced a dish 100% identically from one place to the next.

On the other hand, there must be thousands of restaurants serving the exact same Eggs Benedict, or serving up the exact same smoked salmon platter at brunch, the same prime rib au jus. . Is that copyng or just giving people what they want?

How many restaurants buy desserts and plate them up with no mention of what company actually made them? Have you ever seen a menu advertising Anchor brand cheese sticks or poppers? Do you really think "Shenanigan's" or whoever is making them in house?

Sure, nobody goes to these places for their culinary daring, but we keep on going, don't we?

[Adam Balic]

AA Gill mentions this egullet thread in the Sunday Times.

The argument has reached a degree of pretentious po-faced pseudery that is almost beyond parody, even in Australia. A website called eGullet, which boasts a membership “including the world’s most avant-garde chefs and a broad range of consumers and commentators ... hopes that the discussion on recipe theft will influence the understanding of ethics in cuisine and perhaps worldwide public policy on such matters”. Oh puhlease. Pass the Alessi sick bag.

[FabulousFoodBabe]

Interesting. Over the weekend, I assisted a chef from a town in Italy at a workshop. He told me that a restaurant in San Francisco basically took his dishes, his recipes, and did the same menu. I asked if he was upset about it and he said, with a smile (through his translator), that he wasn't. That it would be nice if the guy told people more about his influences, but that he's happy and flattered. And he told the people at his workshop the exact same thing.

I think the people being imitated should be ones with a say-so in whether or not there's some sort of movement to protect something, or institute some sort of public policy. Not a bunch of us (wonderful, intelligent) types whose business it really isn't.

[Chris Amirault]

AA Gill mentions this  egullet thread in the Sunday Times.

The argument has reached a degree of pretentious po-faced pseudery that is almost beyond parody, even in Australia. A website called eGullet, which boasts a membership “including the world’s most avant-garde chefs and a broad range of consumers and commentators ... hopes that the discussion on recipe theft will influence the understanding of ethics in cuisine and perhaps worldwide public policy on such matters”. Oh puhlease. Pass the Alessi sick bag.

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Actually, Adam, I think that's the Sincerest Form article in The Daily Gullet, not this topic.

[Adam Balic]

That would be why AA Gill makes eGullet sound like an Australian site then. Those darn Australian rascals.

[fendi_pilot]

i know this is way too late - but in any scenerio you want - whether someone copies an entire tasting menu (the worst case) or a single dish (perhaps, one of the better) - what if the one who plagirizes actually does the dish better ?

j