The Knockoff Economy (11 page)

FIGURE 2.1 Molten chocolate cake
© Shutterstock.com

Why are dishes like molten chocolate cake (or less common ones, like Oysters and Pearls) not protected against copying? In the United States, copyright law protects only “original works of authorship fixed in any tangible medium of expression.” In principle, there is no obvious reason why a culinary creation is not a work of authorship. It has an author (the chef), and it is certainly fixed in a tangible, albeit edible, medium of expression—the recipe is “fixed” in the food itself.
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A painting of a molten chocolate cake would clearly receive copyright protection; so too would a sculpture of one.
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But as we will explain, under current law the molten cake itself would not be protected.

At the outset it is important to distinguish between the
recipe
for a given dish and what we referred to as the “built food.” The recipe is the ingredients and instructions: what a reader might clip out of the newspaper or pull up on Cooks.com. The built food is the actual, edible version that appears on a plate. This distinction is in many respects no different from that of the sheet
music for a song versus the sound recording of that same song, or the architectural plans of a building versus the actual building that you can enter and live in. As it happens, both sheet music and performed songs are protected by copyright. The same is true for architectural drawings and actual buildings. (In the case of buildings, this was the result of a specific amendment of American copyright law, the Architectural Works Copyright Protection Act, enacted in 1990).
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But despite the similarities to music and architecture, neither recipes nor built food are currently protected by copyright. And there has been no serious push to promulgate a “Culinary Works Copyright Protection Act” equivalent to the Architectural Works act.

Let’s consider recipes first. In 1996, the Meredith Corporation sued a company called PIL for allegedly poaching recipes from its cookbook
Discover Dannon—50 Fabulous Recipes with Yogurt.
The 7th Circuit Court of Appeals agreed that the recipes in the two books were very much the same. As the court stated,

There is not really any dispute that that salient PIL recipes are functionally identical to their counterparts in Discover Dannon…. [T]here are certain differences in the listing of ingredients, directions for preparations and nutritional information. However, it doesn’t take Julia Child or Jeff Smith
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to figure out that the PIL recipes will produce substantially the same final products.
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Yet as the appeals court noted a few pages later, American law does not protect every act of creativity. Copyright protection does not extend to any “idea, procedure, process, system, method of operation, concept, principle, or discovery.” A recipe certainly looks like a procedure or method of operation: it tells the cook how to combine a set of specified ingredients using a number of specified techniques, and in what order. And indeed most courts and commentators that have considered the issue have held recipes to be procedures. Consequently, recipes are not generally copyrightable. Again the 7th Circuit:

The identification of ingredients necessary for the preparation of each dish is a statement of facts. There is no expressive element in each listing; in other words, the author who wrote down the ingredients for “Curried Turkey and Peanut Salad” was not giving literary expression to his individual labors. Instead, he was writing down an idea, namely, the ingredients necessary to the preparation of a particular dish.
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Meredith v. PIL
expresses the dominant view of recipes in American law. Recipes are functional guides, not creative expressions. Nonetheless, the
Meredith
court was careful not to create any blanket or overly rigid rule. The recipes copied by PIL from
Discover Dannon
were not copyrightable, the court declared, because they did not contain “even a bare modicum of the creative expression” necessary for copyright to apply. This phraseology appeared to leave the door open for recipes that do contain such a “bare modicum” of creative expression.

What does this all mean? The court implicitly rejected the idea that a
recipe itself
can be creative—even if it combines hitherto-uncombined ingredients, such as sea urchin and ice cream. But, it suggested, some recipes might contain enough creative expression to be copyrighted. The US Copyright Office—the federal agency that administers copyright law—has taken a similar position: any “substantial literary expression” that accompanies a recipe “in the form of an explanation or directions” may be copyrightable.
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So writing that comments or expands upon the recipe, as distinguished from the list of ingredients and the bare description of the steps taken to prepare them,
is
copyrightable.

An example from English food personality and chef Nigella Lawson’s cookbook,
Nigella Bites,
illustrates this distinction between recipe and expression. In a prologue to her recipe for “Double Potato and Halloumi Bake,” Lawson claims that this seemingly simple dish has unappreciated virtues:

I first made this for a piece I was writing for
Vogue
on the mood-enhancing properties of carbohydrates…. It’s a simple idea, and as simple to execute. What’s more, there’s a balance between the components: bland and sweet potatoes, almost caramelised onion and garlic, more juicy sweetness with the peppers and then the uncompromising plain saltiness of the halloumi (which you should be able to get easily in a supermarket)—that seems to add the eater’s equilibrium in turn.
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This passage is protected against copying, and Lawson’s musings on the mood-altering qualities of the dish probably comprise part of the cookbook’s appeal. Indeed, cookbooks are generally full of such passages, which provide color and context and help tell a story about the dish and perhaps the chef or author. The addition of these sorts of discussions also transforms a cookbook from a collection of recipes—“mere listings of ingredients”—into a copyrightable book.
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Still, the parts of Nigella Lawson’s recipe that seem the most valuable—the actual instructions on how to prepare the Double Potato and Halloumi Bake—can be copied at will.

If we step back, however, we might ask: Are recipes really just procedures? The simple answer is yes. The very point of a recipe is to tell the reader how to recreate the dish in question. Yet as the legal scholar Chris Buccafusco points out, treating recipes as uncopyrightable procedures is not consistent with how we treat another widely used set of instructions: sheet music. Recipes tell cooks how to reproduce a dish for someone to taste; sheet music tells musicians how to reproduce a song for someone to hear. There is no obvious reason to treat a sheet of paper with a recipe and a sheet of musical notation differently.
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What would happen if recipes were treated like sheet music? Because sheet music is protected by copyright, public performances of the music by anyone but the creator require a license. Likewise, if recipes were copyrightable, then the public preparation of that recipe by another chef would require a license.

Such a system would not be hard to implement. Many restaurants are already required to pay license fees to publicly perform musical works when they play a CD for the entertainment of their customers. There is no obvious reason that they should not also pay a fee when they entertain their customers with someone else’s original recipe. After all, the food, rather than the music, is the restaurant’s primary product. Of course, all this is conjectural; at the moment, there is no copyright protection for recipes, nor any notable effort under way to expand copyright to cover recipes.

“Built” food, recipes made tangible on a plate, is even more removed from current copyright law than are recipes. Copyright is meant to protect creative expression. The dominant view of food in American law, however, is that it is a functional item, much like clothing is functional. We eat food because we are hungry, and the qualities of a dish are thought to be dictated by functionality, not aesthetics. A foie gras mousse with burnt caramel sauce
and Maldon sea salt, by this reasoning, is not an expressive statement, but instead a vehicle for a specific function: the ingestion of needed (or unneeded) calories.

This view of food has long roots. Well before the 7th Circuit Court of Appeals decided
Meredith v. PIL,
the influential legal treatise
Nimmer on Copyright
opined that recipes were unlikely to be protected against copying “because the content of recipes [is] clearly dictated by functional considerations, and therefore may be said to lack the required element of originality, even though the combination of ingredients contained in the recipes may be original in a noncopyright sense.”
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Though the Nimmer treatise did not consider the status of built food, presumably the same reasoning would apply. A dish is useful, not artistic; therefore it is not within the scope of copyright. This perspective—known generally as the “useful articles doctrine”—is one that we have seen before in the context of fashion, and is foundational in American copyright law.

Some have challenged the application of the useful articles doctrine to food, on the grounds that there is nothing functional that dictates the content of striped bass wrapped in potato with a Barolo wine sauce or maple-bacon ice cream. These dishes were invented by someone, and exhibit as much originality as any painting or short story. They surely serve a function—satiating appetites—but people don’t seek out haute cuisine to feel full. They do so for the aesthetic experience.

Indeed, the same is true of clothing. A woman who purchases an expensive and elaborate dress does so because she likes the way it makes her look, not because it might also keep her warm. Despite this, the law deems the dress a useful article, effectively the same as a smock. Whatever its aesthetic appeal or originality, under current law the fact that a dress, or a scoop of sorbet, might serve a useful function is sufficient to strip away all copyright protection.
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In short, the copying of recipes and dishes is entirely permissible. And since there is no law stopping it, copying is—as you might expect—not unknown in the culinary world. Chefs around the globe imitate the innovative and popular creations of others. Copying is similarly ubiquitous in cookbooks and in prepared foods. And though it is difficult to measure, some of the chefs we interviewed think that copying is more common than ever. The rise of the Internet has made copying easier; one no longer need eat a particular dish to copy it, at least when the dish is described and
photographed with enough specificity on a food blog or magazine page. Yet, in an interesting twist, at the same time the Internet has made copying easier to identify, since the same photo + blog combination allows originators to quickly ascertain whether their signature dishes have been referenced, or simply recreated, by someone else. What is clear is that the combination means more debate over the topic of copying.

The spat between Pearl Oyster Bar and Ed’s Lobster Bar, in other words, is noteworthy not because the underlying behavior was unusual. Instead, the dispute stands out largely because Rebecca Charles, the chef and owner of Pearl Oyster Bar, decided to sue her former sous-chef. Increasingly, however, chefs are following her lead and trying to assert some rights, however thin, over their creations. While the dominant story in this chapter is one of copying creative works, there are nonetheless some barriers to copying in the kitchen. Before more closely analyzing the patterns of copying among chefs, we need to understand what legal tools do exist to limit copying.

Chefs can copy recipes and dishes from one another. But they cannot copy the look and feel of entire restaurants. Nor can they freely use trademarked names or phrases, such as “Spago” or “I’m Lovin’ It!”
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In the Pearl versus Ed’s dispute, for instance, the press focused extensively on the idea that Ed McFarland had stolen recipes and dishes from Rebecca Charles. That was certainly part of the claim made by Charles in public. But a closer look at the actual legal complaint filed tells a somewhat different story. Charles’s lawyers, cognizant of the novelty and near-impossibility of claiming ownership over a dish—especially a type of Caesar salad—instead stuck to safer ground. They claimed that the “trade dress” of Pearl Oyster Bar had been appropriated.
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We discussed trade dress briefly in our tour of the fashion world. Trade dress is a legal concept akin to trademark. The idea is that the look or feel of a product (or service) can, like a brand name such as The Palm or Taco Bell,
signify the creator or maker. That feature makes the trade dress valuable to the owner and, most important, to the consumer who wants to purchase the item. As with trademark law, trade dress law aims to protect consumers from confusion. If a particular trade dress is associated with a particular producer, its use by a different producer might confuse customers about what exactly they are buying and who is responsible for it. At the same time, of course, trade dress law also protects creators from others who might closely imitate their products.

Trade dress disputes are nothing new in the restaurant world. The issue in these disputes is generally whether the design and décor of a given restaurant is generic, or instead somehow distinctive enough to evoke that particular eatery and no other. If the design and decor is distinctive enough, it is illegal to copy it.
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When San Antonio-based Tex-Mex chain Taco Cabana alleged that its Houston-based rival, Two Pesos, copied the distinctive Mexican-themed décor and open-kitchen layout of its restaurants, for instance, the Supreme Court had to decide the reach of trade dress law in restaurants.
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