The merit of preservation

[Fat Guy]

  Ducky said:

We need to eat to live.

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We need nourishment to survive, however we do not need to eat at Minibar to live. The experience of dining at a creative restaurant such as Minibar has nothing to do with survival. It is an aesthetic experience.

Nor is the necessity of nourishment something that should be considered a put-down. In religious traditions, in particular, the meaning and symbolism of food transcends the issue of nourishment.

There are always people who can't or won't appreciate a given art-form. Indeed, for every person there is probably at least one art-form that he or she can't or won't appreciate. In a pluralistic society, it makes little sense to tear down other people's preferred art-forms. We embrace them all, even when we don't understand why other people take them so seriously. Needless to say, the eGullet Society for Culinary Arts & Letters is based in part on the premise that there is such a thing as "Culinary Arts."

[slkinsey]

  Fat Guy said:

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.

Okay, but isn't part of the point that if you write a sucky detective novel that isn't all that different from a thousand other sucky detective novels, you still have copyright protection?

[Fat Guy]

It's a lot easier to create an original sentence than it is to create an original dish, because you don't have to eat your words (at least not today).

Seriously, the nature of words and language means that all but the most factual statements will be original works of authorship. In a lot of other art-forms, there's a much higher hurdle to clear. Writers have it easy in that regard.

[russ parsons]

i'm interested, fat guy, in what you would propose to remedy this (aside from the usual: play nice! i mean it!). surely you're not suggesting footnoting of menus: "the mashed potatoes for this dish were inspired by Joel Robuchon; the crisp-skinned salmon by Thomas Keller" (which, incidentally, pretty much how i write my headnotes ... maybe that's it--headnotes for menu items). and then how far back would the search have to go. would there be a statute of limitations?

[Ducky]

  russ parsons said:

i'm interested, fat guy, in what you would propose to remedy this (aside from the usual: play nice! i mean it!). surely you're not suggesting footnoting of menus: "the mashed potatoes for this dish were inspired by Joel Robuchon; the crisp-skinned salmon by Thomas Keller" (which, incidentally, pretty much how i write my headnotes ... maybe that's it--headnotes for menu items). and then how far back would the search have to go. would there be a statute of limitations?

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That would be a start. You would also need the usual FBI warnings against piracy that you have on your videos and DVD's. These should be printed prominently on your menu. I would also urge you to get each diner to sign a disclaimer to the effect that they will not attempt to recreate any dish that they order. It would of course be sensible to have a Notary Public on hand to legalize the disclaimer.

[annanstee]

  slkinsey said:

  Blanche Davidian said:

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.

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

[Ducky]

  annanstee said:

  slkinsey said:

  Blanche Davidian said:

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.

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

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Why the new Department of Haute Cuisine of course. Part of Homeland Security I think.

[sizzleteeth]

  annanstee said:

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

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That's the beauty of it....

No one.

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.

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.

[cdh]

  Ducky said:

Why the new Department of Haute Cuisine of course. Part of Homeland Security I think.

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Now that is a government job I'd love to land. Maybe all this extension of IP into the kitchen isn't so bad after all. Imagine how much fabulous food would be involved in doing discovery in one of these cases.

I'd imagine it might be tough to replicate the dining experience for the jury in the courthouse, so presentation of the evidence would have to be in situ... that would certainly increase the allure of jury duty too.

But the preservation of the evidence issues might be tough... given how long it takes to get a case to trial, keeping the evidence from turning into compost might be an issue.

Edited April 7, 2006 by cdh (log)

[sizzleteeth]

  sizzleteeth said:

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"!!!!!!!!!!

Edited April 7, 2006 by sizzleteeth (log)

[andiesenji]

In my opinion, the "crime" is not the copying, it is the claiming of the idea as one's own.

I am an artist and all my work is copyrighted, however there have been bootleg copies of a somewhat famous painting I did many years ago which was published as the frontspiece in a book. When these copies appeared on ebay I notified the publisher as well as ebay and the copies were pulled. I am sure some are floating around but I can't control it all.

What bothered me most was that on the copies, my signature had been covered and another name substituted. That's fraud. Other artists have painted copies of this painting and identified them as such, the reason being that there were few photos of this rather famous dog and I was the only one that had the original photo (a polaroid) from which I did the painting. That was okay, I didn't mind that, copying in that manner has been done and is accepted, for centuries. It was altering a printed copy of the original to change the signature that was the crime.

painting

Many years ago there was what could only be called a "copycat" restaurant in L.A. They offered menu items "Just like the Brown Derby" or "Just like Chasen's" etc. A local newsman once asked the then owner of the Brown Derby why he didn't mind this. He said he was flattered by it and many times patrons would mention that they had tried the copy and liked it so well they decided to order it at the Brown Derby to see what the original was like. The copycat place had generated business for the original.

In some of the photos shown, the copycats have copied the presentation. That is idiotic and makes them seem as if they have no original ideas of their own. Unless a chef is using a secret formula for a sauce or has a proprietary implememt or utensil for preparing a particular item, I can't see how it can be copyrighted or patented. Anyone can duplicate it if they can figure out how to get the same effect and taste. However they should give credit to the person who first developed it and they should show a little originality in presentation.

Some of the great masters were surpassed by their followers, their students who copied the master's work, or even did some of the painting in the work of the master. There are a lot of experts who can't agree who exactly painted some of the famous works by the great masters who had a stable of students. The style, the brushwork, the tonal patterns were so similar as to be indistinguishable from each other. However once the students were famous in their own right, they developed new and different techniques and presentations to make sure their work could be identified as their own.

[Fat Guy]

  russ parsons said:

i'm interested, fat guy, in what you would propose to remedy this (aside from the usual: play nice! i mean it!). surely you're not suggesting footnoting of menus: "the mashed potatoes for this dish were inspired by Joel Robuchon; the crisp-skinned salmon by Thomas Keller" (which, incidentally, pretty much how i write my headnotes ... maybe that's it--headnotes for menu items). and then how far back would the search have to go. would there be a statute of limitations?

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I think the most useful precedents are to be found on present-day menus, for example in the way Jose Andres names the dish Apples with red wine "Freddy Girardet." I've seen similar references on several menus in France.

[FabulousFoodBabe]

  sizzleteeth said:

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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The revenge of the Old People! You KILL me, Sizzle!

And to everyone who was kind enough to set me straight on my sculpture/music CD versus food thingie: Ehhhhhhh (I'm making an Italian hand gesture here; not an obscene one. I'm a nice girl!). You all know just what I mean! All those smarty-pants references to Opera notwithstanding. And really, if The Thinker had to be created hundreds of times a day, with only a sketch, a block of whatever, a chisel, and memory ...

[jmcgrath]

  Fat Guy said:

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"

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That may be true, but the Patent Office can be clueless at times. This may be an "urban legend", but I read that someone had patented the "hton" and "ntoh" software algorithms. That's about as basic as "1 + 1 + 2". Then there's "Ringnet", but don't get me started on that.

Jim

[Jensen]

  andiesenji said:

In my opinion, the "crime" is not the copying, it is the claiming of the idea as one's own. 

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And, unless I've missed a crucial post, that has not been proven to be the case here. All that we do know is that the website did not include attribution for the dishes. At this point, the argument is entirely academic, isn't it?

[Fat Guy]

We've seen the menu and it contains no attribution (there is a photo here), we've searched for attribution in news media (none found beyond claiming Minibar on his resume, which is particularly egregious if you're claiming the credential but not attributing the source, and if anything he speaks and is written about as though he's the creative force, e.g., "We simply apply this way of thinking with some less expensive ingredients and achieve some amazing results," and "Since moving to Tokyo in the fall, Ramsey has created a 25-course menu (¥8,000) that will change in part every two months."), the marketing language on the restaurant website takes credit (see above, claim of uniqueness), and there has thus far been no response from Mandarin Oriental (we will publish one gladly). In addition, as explained above, when you put your name on the cover of a book you're claiming credit -- you don't have to say "I claim credit." If you serve and market avant-garde creative cuisine in a restaurant, under the restaurant's roof, with the restaurant's name on the menu, you are claiming credit as well.

[Pan]

I think we should establish what rights craftsmen/-women have to their intellectual property. Can a table or chair be copyrighted? What about intarsial work, drapery, or stained glass windows? What would happen to someone who copies a copyrighted stained glass window or floor design, if such copyrights are indeed possible and enforceable? I have to say that while I can accept cuisine as an art, intarsial work would have to be at least equally considered an art. Yet to my knowledge, all the things I've mentioned above, plus pottery, are considered crafts.

[Fat Guy]

The copyright office says copyright protection applies to at least the following examples of the "visual arts" (I'd define some of these as studio arts and place others in various categories, but the copyright office lumps them all together as visual arts):

  Quote

    * Advertisements, commercial prints, labels

    * Artificial flowers and plants

    * Artwork applied to clothing or to other useful articles

    * Bumper stickers, decals, stickers

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

    * Cartoons, comic strips

    * Collages

    * Dolls, toys

    * Drawings, paintings, murals

    * Enamel works

    * Fabric, floor, and wallcovering designs

    * Games, puzzles

    * Greeting cards, postcards, stationery

    * Holograms, computer and laser artwork

    * Jewelry designs

    * Models

    * Mosaics

    * Needlework and craft kits

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

    * Patterns for sewing, knitting, crochet, needlework

    * Photographs, photomontages

    * Posters

    * Record jacket artwork or photography

    * Relief and intaglio prints

    * Reproductions, such as lithographs, collotypes

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

    * Stained glass designs

    * Stencils, cut-outs

    * Technical drawings, architectural drawings or plans, blueprints, diagrams, mechanical drawings

    * Weaving designs, lace designs, tapestries

Artificial flowers and plants currently enjoy more recognition than the works of Ferran Adria as subjects worthy of copyright protection. At least a bumper sticker that says "Roses or Bust" is protected.

There's also a distinction made between the creative and utilitarian aspects of something:

  Quote

Copyright does not protect the mechanical or utilitarian aspects of such works of craftsmanship. It may, however, protect any pictorial, graphic, or sculptural authorship that can be identified separately from the utilitarian aspects of an object. Thus, a useful article may have both copyrightable and uncopyrightable features. For example, a carving on the back of a chair or a floral relief design on silver flatware could be protected by copyright, but the design of the chair or flatware itself could not.

http://www.copyright.gov/circs/circ40.html

That doesn't mean there's no intellectual property protection for useful items. It's just that it has to be found elsewhere from copyright law. Typically one would look to patent law for that sort of protection.

[KatieLoeb]

This is all making me wonder whether original cocktail recipes I've posted here or recipes I've added to RecipeGullet are ripe for someone else to take credit for them. That wouldn't bother me in the least in a non-commercial context, and in fact that's why I share those things. But it might seriously piss me off if someone were presenting my ideas/recipe/cocktail as their own and benefitting from it monetarily.

[Ducky]

  KatieLoeb said:

This is all making me wonder whether original cocktail recipes I've posted here or recipes I've added to RecipeGullet are ripe for someone else to take credit for them.  That wouldn't bother me in the least in a non-commercial context, and in fact that's why I share those things.  But it might seriously piss me off if someone were presenting my ideas/recipe/cocktail as their own and benefitting from it monetarily.

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Well, but why, if this is a concern, would you post things you consider to be proprietary or private on a public forum such as this?

Surely by posting recipies on eGullet you are putting these into the public domain. Your reward is knowing that your creations are being enjoyed by others. There is some satisfaction to be derived from this - I imagine.

But, as a part of this, you must also accept that unscrupulous persons will exploit your recipies for their own gain - simply because you made these accessible to them - and because they can.

To claim anything else is a bit like the pop star (I honestly forget her name) whose photographs recently ended up in Penthouse - and who was horrified when an interviewer suggested to her that men might use those photographs to "pleasure themselves".

You make your bed - you sleep in it.

[inventolux]

  Ducky said:

  KatieLoeb said:

This is all making me wonder whether original cocktail recipes I've posted here or recipes I've added to RecipeGullet are ripe for someone else to take credit for them.  That wouldn't bother me in the least in a non-commercial context, and in fact that's why I share those things.  But it might seriously piss me off if someone were presenting my ideas/recipe/cocktail as their own and benefitting from it monetarily.

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Well, but why, if this is a concern, would you post things you consider to be proprietary or private on a public forum such as this?

Surely by posting recipies on eGullet you are putting these into the public domain. Your reward is knowing that your creations are being enjoyed by others. There is some satisfaction to be derived from this - I imagine.

But, as a part of this, you must also accept that unscrupulous persons will exploit your recipies for their own gain - simply because you made these accessible to them - and because they can.

To claim anything else is a bit like the pop star (I honestly forget her name) whose photographs recently ended up in Penthouse - and who was horrified when an interviewer suggested to her that men might use those photographs to "pleasure themselves".

You make your bed - you sleep in it.

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I agree with your statement however this does not excuse a professional chef from taking 15 dishes and an entire mini bar concept without authorization or credit due to its originator. There are unwritten rules here not being followed. Yes we all take chances by spreading innovation all over the media. But this molecular bar takes the whole act of carbon copying to new stratospheric heights and that is not in a good tradition of creativity and innovation.

[inventolux]

  sizzleteeth said:

  annanstee said:

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.

[gsquared]

I do not know much about patents and even less about US law, but could it not be possible to register a recipe as a business method patent? It appears that this has mostly been used for protecting e-commerce ideas, but it does not seem to be limited in principle to software.

  Quote

In order for a company or individual to get a business method patent, the business method or software must meet the following requirements:

1. The method or software must be of a subject matter that the patent office defines as patentable. This is said to be anything created by humans that falls into two classes; laws of nature, natural phenomena and abstract ideas.

2. The method or software developed must be of some practical use.

3. The method or software must be novel.

4. The method or software must be what they call "non obvious." What this means is that somebody who has ordinary skill in that specific technology would not have been able to think of it.

Click

[inventolux]

  gsquared said:

I do not know much about patents and even less about US law, but could it not be possible to register a recipe as a business method patent? It appears that this has mostly been used for protecting e-commerce ideas, but it does not seem to be limited in principle to software.

  Quote

In order for a company or individual to get a business method patent, the business method or software must meet the following requirements:

1. The method or software must be of a subject matter that the patent office defines as patentable. This is said to be anything created by humans that falls into two classes; laws of nature, natural phenomena and abstract ideas.

2. The method or software developed must be of some practical use.

3. The method or software must be novel.

4. The method or software must be what they call "non obvious." What this means is that somebody who has ordinary skill in that specific technology would not have been able to think of it.

Click

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I dont think that by registering specific dishes in some sort of culinology copyright system is going to do the food world any good. The chef world does not have time to search a database of possibly millions of dish registrations every time a new dish is created. Its way too abiguous and in this case the lawyers would be raping the already impoverished restaurant world. I do think extreme cases such as the one here should be made known to the egullet public (and then the media world) and made an example of.

I dont think software is a good example either. It takes many patents to protect even the simplest of software. Just look at Adobe Acrobat just before it starts up. There are perhaps 35 or so very in depth patents (and counting) to protect their programs.

Its a very basic question of ethics that comes into play here. I think if we make more laws that tax restaurants then we may be doing a disservice to the freestanding restaurant world and we will restrict creativity. This could get to a point that the medical profession is getting to where doctors are afraid to provide medical advice because of lawsuits.

No amount of culinary copyright protection can stop everybody on planet earth from using a dish or variations on a dish. Also no amount of legal protection can stop someone from "copying" a concept. Its about being first to market. Those sort of things are just part of this capitalist society. But that doesnt make it right or in good taste.

[K8memphis]

  inventolux said:

...Its a very basic question of ethics that comes into play here.

Yes it does. They are not playing nice at all are they.

Chefs and diners of the world, unite. Whup their ass.

Well placed phone calls and letters. We should be pleasant but we should be heard. Do they have an email address???

I'm gonna go find one. I mean I'll not be in Japan this month aheh, cough.

'Remember the AlaCarte' and all that good stuff.