The Knockoff Economy (12 page)

Considered today, the Taco Cabana trade dress looks fairly generic. But from the perspective of the Supreme Court back in 1992, the appearance of the Taco Cabana restaurants seemed distinctive enough. Two Pesos, the Court said, had illegally copied. (And the following year, Taco Cabana bought Two Pesos).
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Following the Supreme Court’s decision in
Two Pesos v. Taco Cabana,
many restaurants have asserted trade dress claims to prevent imitation of their décor, which can be as important to the restaurant’s appeal as the food. More generally, chefs can use the law of “unfair competition”—rules governing business conduct that are both broader and less specific than the rules of copyright and patent—to challenge the actions of those who take, or are overly inspired by, their restaurant’s look and motifs. A good example is the ongoing dispute between the Mr. Chow restaurants, famous along the New York-Los Angeles axis for very expensive Chinese food, and the upstart Phillipe Chow restaurants, which operate in the same pricey Chinese food niche. Phillipe Chow was started by a former employee of Mr. Chow named Chak Yam Chau; Chau was sued by Chow for a series of trademark and unfair competition violations.
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(Mr. Chau apparently changed his name to Phillipe Chow at some point prior to developing the restaurants.) The suit, which sought $21 million in damages, illustrates the economic importance of trademark and trade dress to restaurateurs.

The law of trade secrecy is another useful tool for chefs. Trade secret law protects valuable business information, which can include unpublished recipes. The most famous example is the formula for Coke. That formula has remained a well-guarded secret—even within the company, knowledge of the formula is restricted to a few key individuals—and none of Coke’s rivals have ever succeeded in perfectly replicating it. The law protects trade secrets against theft by those owing some sort of duty to the owner, such as an employee or business partner. Still, nothing in trade secret law prohibits a competitor from reverse-engineering the way a particular risotto—or soft drink—is prepared.

In short, American law already protects some of the key features of a restaurant via trademark and unfair competition law, and it provides some (usually narrow) measure of exclusivity over unpublished recipes and special ingredients via trade secret. Restaurant names (“Pearl Oyster Bar”) and the names of specific dishes—examples include Chili’s Big Mouth® Burgers, or, more exotically, the Crack Pie® and Compost Cookies® served in David Chang’s famous Momofuku restaurant in New York—can be trademarked. A restaurant’s design and décor might be protectable by trade dress, if they are distinctive and well enough known to the public.

The other major form of intellectual property (IP), patent, has not escaped the notice of chefs and restaurateurs either. In the commercial food industry, patenting is a central business tool, deployed widely—many would argue too widely—to protect inventive industrial processes and products. (One company has even tried to patent the peanut butter and jelly sandwich, albeit an allegedly special crustless version).
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Among restaurant chefs, patenting is much less common, but it is not unknown. The most frequently noted example is Chicago-based chef Homaro Cantu, of the Moto and ING restaurants. Cantu, who cultivates a sort of mad-scientist persona, is famous for highly innovative dishes often made with complex tools and techniques. At one time Moto even featured a laser in its dining room used for preparing certain items. Cantu has sought numerous patents on his dishes, cookware, and techniques. Consulting closely with attorneys as he works out new creations, Cantu seems to have taken the most aggressive approach to intellectual property protection of any major American chef.

Perhaps the most talked-about innovation at Moto is edible paper embedded with particular flavors. For example, Cantu has served small sheets of this paper imprinted with an image of cotton candy. The paper itself tastes
of cotton candy. Edible, flavored paper is interesting enough, but what is arguably most striking is what is printed below the image:

Confidential Property of and © H. Cantu. Patent Pending. No further use or disclosure is permitted without prior approval of H. Cantu.
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This (edible) language is intended to serve as a novel form of license. The language invokes intellectual property law, but the provision’s real force is not IP, but the customer’s
agreement
to Cantu’s terms. Cantu, in other words, has made creative use of contract law to protect his innovations and confirm the rules under which the customer may enjoy them. Like the more familiar “click-wrap” license, which we encounter every time we download a software update or buy an item on the Internet, this license employs the law of contract to limit the use of an invention by others. Cantu’s lawyer cleverly calls it “sit-wrap” (though it may be just as apt to call it “eat-wrap.”) This kind of license has never been tested in court. But most courts have enforced click-wrap licenses, and so the sit-wrap license is far from crazy. The effect of the license is, moreover, likely to be substantial even if it is never tested in litigation. It communicates the rules of the restaurant. Most customers, once they understand the rules, are likely to abide by them.

Sit-wrap licensing has not yet caught on in the restaurant community, but it illustrates a more general point. Cuisine gets copied. And increasingly, chefs are asking why their creations are not the subject of the same level of protection enjoyed by other artists. A few are seeking creative means to ensure that their work does receive improved treatment. While these chefs may not be interested in the details of copyright law, they recognize that there are good reasons to question the widely varying treatment of different art forms. A recent tempest over copying in the kitchen illustrates how the issues are being debated inside the industry today.

In 2005 a restaurant in Melbourne, Australia, called Interlude began serving food of a sort never seen before down under. Interlude’s young chef, Robin Wickens, was already well known when he started shaking up the Australian culinary scene, but the highly creative dishes he served—such as pureed shrimp turned into noodles—were unlike his earlier work. (Indeed,
a 2004 review of Interlude in the Australian newspaper
The Age
chided the original menu for being a bit stodgy.)
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Soon commentators on the Web site of the eGullet Society—which includes among its members and readers many famous chefs and food professionals—pointed out that the new dishes appeared to be direct copies of those served in famously innovative American restaurants such as Alinea in Chicago and WD-50 in New York. And as it turned out, Wickens had volunteered (a practice known in the industry as “staging”) for a short period at Alinea just a few months earlier.
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A volcano of hostile commentary soon followed on eGullet, with staff from Moto, Alinea, and many other top restaurants weighing in. Ultimately, a chastened Wickens removed several dishes from his menu, declaring that “I never tried to claim them as my own,” and apologized to Grant Achatz, the chef of Alinea.
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The eGullet fracas that led to this decision, however, is worth recounting because it reveals the emerging debate within the culinary community over exactly what sort of copying is permissible and what is not.

Less than an hour after a self-proclaimed “Australian chef” posted on eGullet that many dishes at Interlude appeared to have been copied directly from several innovative American restaurants, Wickens mounted a defense. Because the discussion on the site is so interesting and revealing, we quote it at length in its original (that is, often ungrammatical) form. First, Chef Wickens:

Thought i should post my reply. with regards to the prawn noodle dish this came about after getting hold of some ‘transglutiminaise’. Rather than just throwing it radomily into food, we had a recipe for the prawn noodles and started there, we then played around with recipes and new recipes to see what we could come up with. We now use it in completely new and original dishes. My trip to America and staging at Alinea gave me ideas and i saw new techniques that after cooking for over ten years in some pretty good restaurants i had seen before.

When i got back to my own kitchen of course we played around and saw how we could use these techniques in our own food…. We are always coming up with new and evolved dishes for our menus. I totally agree that Chefs Achatz [of Alinea], Cantu [of Moto] and Dufresne [of WD-50] are some of the top chefs in the world but I am sure they would agree that true originality comes from inspiration itself. If they do come up with a new technique as say someone like Ferron Adria [of El Bulli] has in the past. Of course people are going to imitate it and evolve it.

Many commentators on eGullet were highly critical of Wickens’s defense. One wrote:

Saying that replicating these dishes verbatim and then adding them to your menu (for profit, I might add) is the first step in an evolution would be like if I were to re-record Miles’s Davis’ “Kind of Blue” note for note, retitle it “Sort of Blue,” make no reference to the original composer, turn around and sell it for a profit, and later claim that it was just part of my evolution as a musician.

As this comment rightly points out, it is generally forbidden to remake a copyrighted work in a new form without first obtaining a license. It is not, however, impossible, especially if a court finds that the reworking is a parody of the original. Alice Randall famously rewrote
Gone With The Wind
from the point of view of a slave as
The Wind Done Gone,
and was slapped with a lawsuit in return. But she escaped when a federal appeals court ruled that her book was a parody and therefore “fair use.”
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Similarly, the rap group 2 Live Crew likewise was sued for remaking Roy Orbison’s “Oh, Pretty Woman” song in 1989, but it too prevailed before the Supreme Court on the grounds that the remake was a parody.
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While these instances suggest that remakes are possible, it is a dicey strategy and defending oneself in court is expensive. In any event, because copyright does not apply to food, reworkings of others’ recipes are generally permitted. But what is legal is not necessarily ethical—at least in the eyes of many chefs.

The tradition of staging in restaurants—in which a young chef works essentially as an intern under the tutelage of another chef—was widely recognized as part of the problem in the Wickens affair, because it created fertile terrain for this kind of behavior. As one commentator noted,

The tradition of welcoming stages into the kitchen is long held. The idea is that chefs can learn from one another, grow, and move the art forward. Chef Achatz has both benefited from this tradition, and now welcomes chefs from all over the world into Alinea’s kitchen.

But, several other participants in the debate pointed out, the stagiere system requires a set of rules about when and how to copy, since it is inherent in the staging tradition that the stagiere learn something useful to take with her. Unsurprisingly, then, the issue of attribution was central to many comments. For example:

I don’t believe the issue is that he copied the dishes or that he is unoriginal. The real issue is one of a lack of attribution. The apparent dishonesty is in claiming the creation of the dish for oneself. It seems that Chef Robin is indeed a fine technician and can run a fine kitchen. I very much doubt that we would be reading about this right now if he gave proper credit.

Alinea’s managing partner then weighed in, agreeing that from the perspective of the restaurant as a whole, the real issue was indeed one of attribution, not economics:

The stagiere tradition is long held, and by welcoming chefs into his kitchen at Alinea, Chef Achatz honors that tradition. The idea is to freely share information with others to promote the art and craft of cooking—and move cuisine forward. Visiting chefs learn technique, and then go home to apply these ideas to their own style of cuisine. The problem in this case is, for Alinea, not an economic one or a legal one. I don’t personally believe that we have anything to gain economically, nor do I think we have any sort of legal case. Even if we had one, we would not pursue it. What is at stake is another issue. A chef at Alinea said to me a few days ago, “The thing that bothers me the most, is that if a diner went to Interlude first and then dined at Alinea, that diner would think that we were copying him.” It would, however, be a loss for the industry if such a violation of
unwritten ethical guidelines endangered the “open source” nature of the industry and the stage tradition. I for one don’t believe it will—if anything, the freedom of information presented on the internet will tend to have the opposite effect.

While many commentators on
L’affaire Wickens
agreed that norms about attribution were central to the profession, others could not resist drawing comparisons with other art forms, as the preceding excerpts suggest. Several debated the similarities and differences with more conventional copyright disputes, such as in the music world. One thought Wickens’s copies were akin to the practice of sampling in songs, which is legally actionable in many circumstances. But another commentator thought that was not quite the right analogy:

The difference between sampling and this is that sampling is more like if I bought some food at Alinea and then took it to my own restaurant, reheated it, and sold it as part of one of my dishes. What’s happening here is more like George Harrison rewriting “He’s So Fine” as “My Sweet Lord” without licensing (which he somehow mostly got away with).
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Still another noted that the conversation was based on a set of named dishes and photographs, and that virtually no one outside of Melbourne had actually tasted these dishes. Who knew whether they tasted half as good?