The merit of preservation

[FabulousFoodBabe]

And what recourse would someone who is accusing others of "plagiarism" have? And how should it be prevented? I can't imagine any stage, line cook, or sous .. heck, anyone .. signing a no-compete or confidentiality contract. I can't imagine making (or paying anyone) enough to make it worth their while. One of the reasons people in the business work so hard for so little for so long, is to learn. And to be told that you can't take what you've learned elsewhere, and then be publicly criticized for it? You know what's been ripped off! I don't understand what the trouble is, if you feel like the restaurant in question should have to stand up and admit it?

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

[andrewB]

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

[FabulousFoodBabe]

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?

[Ducky]

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.

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My point is that unless there is a breach of a legal right - there will be no legal remedy for the person being "plagarized".

The concept of "plagarism" implies the breach of a legal right - for which there is a legal remedy. If this is not the case, this is not plagarism - but merely imitation or "research".

Think about it: How absurd would things be if culinary style and presentation were granted legal protection. Who would judge this? Who would enforce this? Think of the idiotic lawsuits?

And where would we draw the line on this kind of thing? If I tell a fine original joke at dinner, and one of my guests repeats this the following day with great success, do I sue him?

Rightly or wrongly (I think rightly) culinary creativity is not protected under intellectual property rules except to the extent genuinely proprietary formulae are involved (eg. eleven secret herbs and spices or the Coca Cola formula etc). Under the circumstances there is also no ethical issue involved in copying someone elses culinary creation - or if there is, it is one so minor as to not warrant any legal recognition.

[slkinsey]

Here's the question I have about this whole thing: Who says that when you walk into a restaurant and are served a certain dish that there is an inherent expectation that the dish is wholly original to the chef of that particular restaurant, from recipe to execution to plating? Where is this line drawn? Why does there seem to be the belief these principles are somehow correctly applied to lobster skewered on an injection bulb and not to, for example, the pizza-making process developed at Otto?

[Fat Guy]

The concept of "plagarism" implies the breach of a legal right - for which there is a legal remedy. If this is not the case, this is not plagarism - but merely imitation or "research".

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This statement is incorrect.

"Plagiarism is neither a tort nor a crime -- it is an ethical, not a legal offense. Accordingly, courts never handle plagiarism disputes." (From Charles Cronin of Columbia University School of Law).

Plagiarism is "not addressed by our legal system in any real way, except for some scientific circumstances. It is enforced by public censure and punishments by institutions." (From the NCTE).

This helpful grid may clarify the differences for you.

Rightly or wrongly (I think rightly) culinary creativity is not protected under intellectual property rules except to the extent genuinely proprietary formulae are involved (eg. eleven secret herbs and spices or the Coca Cola formula etc).

This statement is also incorrect.

The KFC seasoning recipe and the secret formula for Coke have no legal status. They are trade secrets. If they were patented, we'd know what they were, because it would be clearly stated in the patent. Instead, KFC and Coke have decided to keep the formulae secret. If you figure out the formula somehow and you use it, you're violating no law.

There are, however, many instances under which culinary creativity is protected. Try copying a cookbook and publishing it as your own and you'll see what I mean. There are also plenty of culinary processes that are patented, and plenty of names of culinary products that are trademarks. Culinary creativity in the restaurant kitchen has been slow to achieve copyright protection, most likely because creative chefs are a small, fragmented, low-resource group, however as a conceptual matter it's a no-brainer to understand that the culinary arts should be treated the same as the visual, performing or studio arts -- unless one believes the culinary arts are somehow inferior to all other arts.

[slkinsey]

. . . as a conceptual matter it's a no-brainer to understand that the culinary arts should be treated the same as the visual, performing or studio arts -- unless one believes the culinary arts are somehow inferior to all other arts.

At the risk of offending the core audience in these forums, I'm not sure I'd classify cooking in the same category as composing a symphony, writing a novel, directing a movie or creating a sculpture. One might conceivably equate cooking with an interpretive art such as a musician actually executing a composition, or an actor actually performing a role. But those interpretations have zero protection, only recordings of those interpretations have protection (and only in the US, for that matter). If someone performs the role of Othello and substantially imitates Laurence Olivier's interpretation, there are many ways this might be viewed -- but "plagiariam" isn't one of them. Personally, I am more inclined to equate cookng with building a really amazing chest of drawers than I am composing an opera, which is to say high artifice rather than high art. Needless to say, there are a few notable exceptions.

[pedro]

Here's the question I have about this whole thing:  Who says that when you walk into a restaurant and are served a certain dish that there is an inherent expectation that the dish is wholly original to the chef of that particular restaurant, from recipe to execution to plating?  Where is this line drawn?  Why does there seem to be the belief these principles are somehow correctly applied to lobster skewered on an injection bulb and not to, for example, the pizza-making process developed at Otto?

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Sam, quoting again Adrià:

In a creative restaurant creativity is held in the highest esteem

. . . . .

If in a creative restaurant the diner doesn’t value the emotion and excitement of trying something for the first time, there’s really no point.

If we admit that in creative restaurants creativity is the most important factor --to me, taste would be the most important-- then you have your answer. Keep in mind that Ferran believes that people wouldn't travel to elBulli --you already know the myths of the long winding road etc-- just to have an excellent meal, he believes that there's an extra variable needed to make them come, and that is creativity.

So, yes, there's a narrow segment of restaurants which are not competing to see which of them makes the most perfect fabada, suckling pig or other based on tradition dish, in other words, they're not mainly competing to see who executes the better but who comes up with new techniques and concepts. And in that context, there's such a thing a plagiarism, at least, in an ethical sense.

[slkinsey]

Very well stated, Pedro. Makes some good sense.

[Ducky]

There are, however, many instances under which culinary creativity is protected. Try copying a cookbook and publishing it as your own and you'll see what I mean.

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Well we see this a little differently. When I copy a cookbook and publish it as my own I am in the same position as if I copy John Grisham and publish this as my own. This is both plagiarism and violation of copyright. I am plagiarising the writer - and violating his copyright in the intellectual property that comprises the printed media.

The law recognizes violation of copyright in the case of printed media. However the law does not recognize violations of culinary creativity. If Chef A cooks a Coq au Vin, and Chef B deconstructs this and cooks it himself, this violates nothing unless Chef B "passes off" his Coq au Vin as having been prepared by Chef A.

This also illustrates the essential difference between passing off and plagiarism: In the case of the former you are passing off your own as being someone elses - while in the latter you are claiming someone elses as your own.

In theory the law should reflect social policy. In the past, certainly, intellectual property law largely ignored culinary creativity - presumeably on the basis that in our society culinary imitation is a good thing. How else, after all, do people learn to cook?

I think this is a good thing. Any other approach leads to absurd results. If I copy the serve of a particular tennis pro - should this be actionable? If my mechanic tunes my Ferrari by copying the technique of the factory's master mechanic - should this be actionable?

At my wife's hair salon the hairdresser often has a page from a glossy magazine on his dresser table and slavishly copies a particular look. Should this be actionable?

I personally think there are far too many lawyers in the world already - and I used to be one as well. I would hate to give these guys any excuse to proliferate by litigating culinary creativity.

[Fat Guy]

Needless to say, there are a few notable exceptions.

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The culinary artistry of Jose Andres, Grant Achatz, Wylie Dufresne, Ferran Adria or Heston Blumenthal, for example. Which is what we're talking about here -- at least it's what I'm talking about! I certainly agree that serving a Caesar salad (which so happens to be named after its creator, but that's neither here nor there) or most of the food that restaurants serve doesn't trigger the kinds of creative arts concepts that we're talking about. But here we have real artistry being ripped off and not attributed, and that's wrong.

[Fat Guy]

Here's the question I have about this whole thing:  Who says that when you walk into a restaurant and are served a certain dish that there is an inherent expectation that the dish is wholly original to the chef of that particular restaurant, from recipe to execution to plating?  Where is this line drawn? 

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This and other questions of communication (such as how a chef should attribute a source) are probably the trickiest ones in this conversation -- once we get past all the truculent confusion about the basic ethical and legal issues, that is. I think it starts with the distinction between repertoire cooking and avant-garde creative cooking -- the difference between Caesar salad and "anti-gravity upside-down cake in a bottle." The extremes are pretty easy to explain. Drawing the exact line, as always, is more challenging.

[Ducky]

Needless to say, there are a few notable exceptions.

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But here we have real artistry being ripped off and not attributed, and that's wrong.

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I agree with the sentiment behind this statement - but always have difficulty with arguments that ultimately rely on moral positions taken by one party or the other. Perhaps this is because I have such notoriously loose morals myself.

I guess the real question is whether the current lack of legal protection for culinary creativity is just fine, or whether this should be changed and if so, how?

I personally think that any move in this latter direction falls into the "too hard" basket. It is not worth the effort and would result in all manner of absurdities. The law is already enough of an ass.

[inventolux]

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 wouldnt write off the money making opportunity of the Mini Bar concept on its own. It is a very low labor operation that produces world class results.

I refuse to believe that this chef who worked at Mini Bar for a year just walked into the Mandarin and convinced some high level managers to change an entire room for some unheard - of - idea in tokyo or even the entire asian panhandle without looking at this guys resume and having a full understaing of what and where he was coming from. Getting a job at the Mandarin alone can require numerous interviews and they almost always check work histories and references. That is just for the average entry level employee. There is no way they went with the concept with blinders on. They knew who this guy was and where he came from.

I could be wrong but I did apply at the Mandarin in SF over 10 years ago and they checked every bit of my work history and after 3 interviews I determined it was too much leg work for a hotel job.

[Blanche Davidian]

Damn the lawyer haters, I think chefs who perform at that "haute" level of cooking deserve intellectual property rights. Under U.S. law, you cannot copyright an idea. I think that concept, coupled with the fair use doctrine, leaves plenty of room for chefs to "borrow" concepts for their inspiration.

If you're a chef who cooks in that rarified arena, you've spent a considerable amount of time and effort honing your cuisine into a unique and singular vision. You deserve to be protected from people who want to borrow on your success without doing any of the hard work themselves.

[slkinsey]

Damn the lawyer haters, I think chefs who perform at that "haute" level of cooking deserve intellectual property rights.

Well, here's the thing about IP rights: they apply to everyone irrespective of perceived "level." Danielle Steel's copyrights -- or mine for that matter -- are just as valid as Philip Roth's.

[mark922]

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.

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I have a confession to make. I don't really think about who has created a dish when I go to a restaurant. I think about whether or not I had a good meal. I suppsoe that is at least one reason I am not a fan of avant garde cuisine. I don't want to pay $200 for a variety of flavors of foam, I don't want to have no control over what I eat, and have certain things that I most definitely don't like, many of which seem to be in favor with the "food as art" school.

I suppose that means that I simply don't have a dog in this fight. But I think it also means that you're overstating the situation here. If I go to Gibson's and have a bone-in ribeye and a martini, do they have to credit Gene & Georgetti's? and who has the credit on bernaise sauce?

It's food. By its very nature, it's ephemeral, and its preparation is a craft, not an art. To claim any more is mere pretension.

[Sugarella]

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.

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Gullible means easily tricked or deceived, which I am of course not if I voluntarily do this.

I think perhaps the word you were trying to call me, Fat Guy, was STUPID.

There are, however, many instances under which culinary creativity is protected. Try copying a cookbook and publishing it as your own and you'll see what I mean. There are also plenty of culinary processes that are patented, and plenty of names of culinary products that are trademarks. Culinary creativity in the restaurant kitchen has been slow to achieve copyright protection, most likely because creative chefs are a small, fragmented, low-resource group, however as a conceptual matter it's a no-brainer to understand that the culinary arts should be treated the same as the visual, performing or studio arts -- unless one believes the culinary arts are somehow inferior to all other arts.

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I appreciate that the chefs in question here are innovators and are very excellent at what they're able to do. But we have 2 very major differences here between a chef's creation and another artist's creation, or a legally protected creation.

The first is that the food was put on a plate; no copyright was applied for and no trademark or patent was filed, so one cannot claim the food on the plate as intellectual property if one has not gone through the steps or gone to the expense to make it so.

The second problem is that culinary art does not deserve this protection because it does not carry the same weight as visual, performing or studio arts, because it is not a permanent art. Does an oil painting or a musical recording or a literary work have more value than a sidewalk chalk drawing? Of course it does, because the drawing will wash away with the rain, and the food on the plate, no matter how clever and innovative it may be, will eventually turn to shit.

[mark922]

The concept of "plagarism" implies the breach of a legal right - for which there is a legal remedy. If this is not the case, this is not plagarism - but merely imitation or "research".

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This statement is incorrect.

"Plagiarism is neither a tort nor a crime -- it is an ethical, not a legal offense. Accordingly, courts never handle plagiarism disputes." (From Charles Cronin of Columbia University School of Law).

Plagiarism is "not addressed by our legal system in any real way, except for some scientific circumstances. It is enforced by public censure and punishments by institutions." (From the NCTE).

This helpful grid may clarify the differences for you.

Rightly or wrongly (I think rightly) culinary creativity is not protected under intellectual property rules except to the extent genuinely proprietary formulae are involved (eg. eleven secret herbs and spices or the Coca Cola formula etc).

This statement is also incorrect.

The KFC seasoning recipe and the secret formula for Coke have no legal status. They are trade secrets. If they were patented, we'd know what they were, because it would be clearly stated in the patent. Instead, KFC and Coke have decided to keep the formulae secret. If you figure out the formula somehow and you use it, you're violating no law.

There are, however, many instances under which culinary creativity is protected. Try copying a cookbook and publishing it as your own and you'll see what I mean. There are also plenty of culinary processes that are patented, and plenty of names of culinary products that are trademarks. Culinary creativity in the restaurant kitchen has been slow to achieve copyright protection, most likely because creative chefs are a small, fragmented, low-resource group, however as a conceptual matter it's a no-brainer to understand that the culinary arts should be treated the same as the visual, performing or studio arts -- unless one believes the culinary arts are somehow inferior to all other arts.

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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.

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.

[K8memphis]

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 !

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Geez this is funny

Cake decorators are in general very helpful, but we do give credit to our inspiration or we as a group show our other side, we nail their ass for it. I've seen it done and it's not pretty.

If this was over ONE cake, much less fifteen, cake decorators would be alll over this and fast.

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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Just by common sense standards 15 near identical dishes is a bit much. Credit most certainly should surely be given at the least. And now with apologie$.

I have 2 small examples to bring it into focus. I am identifying with giving proper credit--not identifying with the chef's caliber in any way. I feel funny stating the obvious but there it is.

Umm, when I had my little place for that little time. I wanted to do a dessert called Oh My Ganache--the deep fried ganache encased in pate choux that I learned about in our pastry forum. I asked our fellow poster' Ohmyganache' if I could call it that on my menu & I would credit him. And when he opens his place later I would reference that as well. He was very kind. But I asked.

Another time I made a cake and copied a Kerry Vincent design. I have it for my avatar on another board. Someone emailed me & asked if that was Kerry's cake design. I realized that I had not properly explained my avatar and given proper credit. So I did quickly.

Shoot, the boys in the hotel world should do no less than I did. Co-ome o-on.

Stealing yes it is. Yes they did. And I'd give 'em the benefit of the doubt as to who did the actual stealing. I know FG doesn't give the benefit of the doubt there. That could sure get lost in the translation, but they need to totally 'fess up ASAP. Fork over credit and consulting fees too. And Fast.

[FabulousFoodBabe]

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.

Gee, and this wasn't a problem until now? So, who's going to sue whom first and get this thing rolling? What do real chefs say about this, and who is the first person Jean-Georges is going to sue for the molten chocolate cake? Or, what that THomas Keller who first did it ... or the home economists at Hershey?

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.

[Blanche Davidian]

If I go to Gibson's and have a bone-in ribeye and a martini, do they have to credit Gene & Georgetti's?  and who has the credit on bernaise sauce?

Nobody, those dishes exist in the public domain.

The second problem is that culinary art does not deserve this protection because it does not carry the same weight as visual, performing or studio arts, because it is not a permanent art.

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.

[slkinsey]

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.

[mark922]

If I go to Gibson's and have a bone-in ribeye and a martini, do they have to credit Gene & Georgetti's?  and who has the credit on bernaise sauce?

Nobody, those dishes exist in the public domain.

The second problem is that culinary art does not deserve this protection because it does not carry the same weight as visual, performing or studio arts, because it is not a permanent art.

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.

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The copyright on a piece of music is on the first publication, not the performance.

[Blanche Davidian]

Bah, y'all are right. You can still record a dish in recipe form in a similar fashion to the way music is written down, though.