The Knockoff Economy (40 page)

62
. In interviews, the designers told us of a woman returning to the store in tears with her dress, after discovering the existence of the Forever 21 version.

63
. We mention this retail outlet and this brand for illustrative purposes only. We do not mean to suggest that data from this outlet and brand are included in the BLS data, which is confidential.

64
. Nystrom,
Economics of Fashion,
26.

65
. David Colman, “Choices, Up to Your Knees,”
New York Times
, August 25, 2005, E1.

66
. Lauryn Howard, “An Uningenious Paradox: Intellectual Property Protections for Fashion Designs,” 32
Columbia Journal of Law & Arts
333 (2009).

67
. Horyn, “Is Copying Really a Part?”

68
. Ibid.

69
. Lau, “Can I Borrow That?”

70
. Lau, “Can I Borrow That?”

71
. A classic treatment of first mover advantages is Marvin B. Lieberman and David B. Montgomery, “First Mover Advantages,”
Strategic Management Journal
9, 1 (1988).

72
. “Dress War,”
Time
.

73
. Kenneth D. Hutchinson, “Design Piracy,”
Harvard Business Review
191, 198 (1940).

74
. Nystrom,
Economics of Fashion.

75
. Barnett, “Shopping for Gucci,” 30.

1
. Complaint at 1:3,
Powerful Katinka, Inc. v. McFarland,
2007 WL 2064059 (S.D.N.Y. 2007). This was not the first dust-up between Charles and a former co-worker; Mary’s Fish Camp, a little further uptown, engendered a similar dispute a few years earlier.

2
. Pete Wells, “Chef Sues over Intellectual Property (the Menu),”
New York Times,
June 27, 2007.

3
. Figures drawn from National Restaurant Association,
Restaurants by the Numbers
(2011),
www.restaurant.org/pdfs/research/2011forecast_pfb.pdf
.

4
. D
AVID
Kamp,
The United States of Arugula: How We Became a Gourmet Nation
(Random House, 2006), 15.

5
. Ibid. After the outbreak of World War II kept many French staff from wanting to return home, The Pavillion at the Fair became Le Pavillion in Manhattan.

6
. Malla Pollack, “Intellectual Property Protection for the Creative Chef, or How to Copyright a Cake: A Modest Proposal,”
Cardozo Law Review
12.5 (1991): 1477, 1490.

7
. For the full story see Jennifer 8 Lee,
The Fortune Cookie Chronicles: Adventures in the World of Chinese Food
(Twelve, 2008).

8
. Kamp,
The United States of Arugula,
70-71.

9
. Figures in current dollars from the National Restaurant Association,
www.restaurant.org/pdfs/research/2011forecast_pfb.pdf
.

10
. Lauren Sherman, “The Most Unusual Restaurants in the World,”
Forbes,
December 19, 2006.

11
. A quick (if that is possible) look at
Modernist Cuisine: The Art and Science of Cooking
(Cooking Lab, 2011), a nearly 2,500-page tome by Nathan Myrhvold, Chris Young, and Maxime Bilet, will explain what all the fuss is about.

12
. Adria himself disclaims the phrase, as do others. Along with Thomas Keller, Heston Blumenthal, and writer-scientist Harold McGee, Adria wrote an open letter to the UK newspaper
The Guardian
stating, “The fashionable term molecular gastronomy was introduced relatively recently, in 1992, to name a particular academic workshop … that workshop did not influence our approach, and the term molecular gastronomy does not describe our cooking, or indeed any style of cooking.” Ferran Adria et al., “Statement on the ‘New Cookery,’”
Guardian Observer,
December 10, 2006,

www.guardian.co.uk/uk/2006/dec/10/foodanddrink.obsfoodmonthly
.

13
. Katy McLaughlin, “That Melon Tenderloin Looks Awfully Familiar…,”
Wall Street Journal,
June 24, 2006,
http://online.wsj.com/article/SB115109369352989196.html
.

14
. Whether Vongerichten or Matsuhisa are really the inventors of these dishes is of course another question, about which there is some controversy. We have already noted that miso cod probably was not really pioneered at Matsuhisa; the same may be true for the molten chocolate cake. For example, Michel Richard, Michel Bras, and Jacques Torres have all been touted at some point as the true originator of the molten chocolate cake.

15
.
www.recipesecrets.net/forums/recipe-exchange/23906-chilis-molten-chocolate-cake.html
.

16
. Under US law the medium in which a work is fixed need not be especially durable. Any fixation of the work that is perceptible for more than a “transitory duration” is sufficient. We recognize that molten chocolate cake is usually consumed pretty quickly, but since the cake nearly always lasts for more than a transitory duration it would seem qualified to receive a copyright. As we explain, however, this is not the case.

17
. Architectural Works Copyright Protection Act (AWCPA), Pub.L. 101-650, Title VII, 104 Stat. 5133, December 1, 1990.

18
.
Publications Int’l, Ltd. v. Meredith Corp.,
88 F.3d 473 (7th Cir. 1996) at 476.

19
. Ibid., 480. Very similar reasoning, based on
Meredith,
appeared a few years later in
Lambing v. Godiva Chocolatier,
142 F.3d 434 (6th Cir. 1998).

20
. U.S. Copyright Office,
Recipes,
www.copyright.gov/fls/fl122.html
(accessed September 14, 2006).

21
. Nigella Lawson,
Nigella Bites—Comfort Food,
http://www.channel4.com/life/microsites/N/nigella/bites2.shtml
(accessed June 2, 2011).

22
. See U.S. Copyright Office,
Recipes,
101. See also Pollack, “Intellectual Property Protection,”. As David Nimmer pointed out to us, instructions merged with explanation in a cookbook are typically copyrightable. Thus when Lawson writes, apropos the Halloumi bake, “Season with black pepper, but no salt as the cheese will make it salty” that passage would probably qualify for copyright. Interview with David Nimmer, author of
Nimmer on Copyright
(Matthew Bender, 1978).

23
. “To say that a recipe is an uncopyrightable procedure or process is the same as saying that a schematic rendering of dance steps is a procedure or, more clearly, that the required instruments and notes for a symphony constitute [an uncopyrightable] process. In truth, the recipe, the drawing, and the musical notation are simply means for fixing a work (the dish, the dance, or the symphony) in a tangible medium of expression.” Christopher J. Buccafusco, “On the Legal Consequences of Sauces: Should Thomas Keller’s Recipes Be per se Copyrightable?”
Cardozo Arts & Entertainment Law Journal
24.3 (2007): 1121, 1131.

24
. Nimmer,
Nimmer on Copyright,
§ 2.18[I].

25
. Unless somehow the aesthetic appeal of the dress or the dish is “separable” from its function. For both dresses and food, the aesthetic appeal—the lovely appearance, the delicious taste—is infused into the article itself, and thus is not separable, and that fact defeats copyright protection. For this reason, food simply falls outside the scope of contemporary copyright law.

26
. Complaint,
Powerful Katinka, Inc. v. McFarland.
In addition, Charles claimed that McFarland had violated his fiduciary duties as a sous-chef at Pearl Oyster Bar.

27
. Trade dress is generally divided into packaging and product design. Trade dress that is only packaging does not always require secondary meaning to be protected, whereas trade dress that is part of product design must have it. See
Walmart Stores v. Samara Bros.
529 U.S. 205 (2000).

28
.
Two Pesos v. Taco Cabana,
505 U.S. 763 (1992).

29
. Ron Ruggless, “Taco Cabana Buys Rival Two Pesos,”
Restaurant News
, January 25, 1993.

30
. On February 23, 2012, a jury handed down a mixed verdict but nonetheless found that Phillipe Chau had engaged in unfair competition and false advertising. Details of the feud can be found in Aaron Gell, How Now Mr. Chow? The Sweet and Sour Saga behind the City’s Epic Food Fight,
New York Observer,
February 28, 2012,
www.observer.com/2012/02/mr-chow-02-28-2012/5
/.

31
. Sara S. Munoz, Patent No. 6, 004, 596; “Peanut Butter and Jelly Sandwich,”
Wall Street Journal,
April 5, 2005.

32
. Pete Wells, “New Era of the Recipe Burglar,”
Food & Wine,
November 2006.

33
. Ibid. The review in
The Age
appeared in March 2004; John Lethlean, “Interlude,”
The Age,
March 16, 2004,
www.theage.com.au/articles/2004/03/15/1079199150268.html
.

34
. McLaughlin, “That Melon Tenderloin,” reports that Wickens said that he would tell patrons of Interlude that the dishes in question originated in American restaurants. The apology is noted in the eGullet commentary, by an Alinea staff member.

35
.
Campbell v. Acuff-Rose Music
, 510 U.S. 569 (1994).

36
. Quoted in Buccafusco, “On the Legal Consequences of Sauces,” 1152.

37
. Ibid., 1153.

38
. Interview with Joachim Splichal, Chef, Patina Catering Company.

39
. Interview with Laurent Torondel, Chef, Bistro Laurent Torondel.

40
. With the exception of the Buccafusco and Von Hippel/Fouchart papers, which we’ve noted elsewhere in this book.

41
. Robert Ellickson,
Order without Law: How Neighbors Settle Disputes
(Harvard University Press, 1994).

42
. Emmanuelle Fauchart|Eric von Hippel, “Norms-Based Intellectual Property Systems: The Case of French Chefs,”
Organization Science
19.2 (2008): 187.

43
. Eric von Hippel, “Cooperation between Rivals: Informal Know-How Trading,”
Research Policy
16.6 (1987): 291.

44
. Emily Cunningham, “Protecting Cuisine under the Rubric of Intellectual Property Law: Should the Law Play a Bigger Role in the Kitchen?”
Journal of High Technology Law
9.1 (2009): 21.

45
.
Pete Wells,
“New Era of the Recipe Burglar.”

46
. Fauchart and von Hippel, “Norms-Based Intellectual Property,” 191.

47
.
Bridgeport Music, Inc. v. Dimension Films,
410 F.3d 792 (6th Cir. 2005).

48
. Bret Thorn, “Catch-22: For Celebrity Chefs, the Bigger They Are, the Less They Usually Cook,”
Nation’s Restaurant News,
April 26, 2004.

49
. Fauchart and von Hippel, “Norms-Based Intellectual Property.”

50
. Michel Orecklin and Laura Locke, “Food for Thought,”
Time,
2004,
www.time.com/time/magazine/article/0,9171,994185,00.html
(quoting Nancy Seryfert of the California Culinary Academy);
Chefography
(Food Network Broadcast).

51
. James Hibberd, Cable Year End Ratings,
The Live Feed,
November 30, 2011,
www.hollywoodreporter.com/blogs/live-feed/cable-year-ratings-usa-hbo-52808
.

52
. Michael Pollan, “Out of the Kitchen, Onto the Couch,”
New York Times Magazine,
August 2, 2009.

53
. Ibid.

54
. Katy McLaughlin, “Chefs Gone Wild: Where to Eat this Fall,”
Wall Street Journal,
September 17, 2005.

55
.
Twentieth Century Music Corp. v. Aiken,
422 U.S. 151 at 156 (1975).

56
. Adria et al., “Statement,”.

57
. Jonathan Gold, “The New Cocktailians,”
L.A. Weekly,
March 4, 2009.

58
. Chantal Martineau, “The Era of Copyrighted Cocktails?”
The Atlantic,
August 31, 2010.

59
. Jonathan Miles, “The Right Stuff (By Law),”
New York Times,
July 2, 2009.

60
. Nick Fauchald, “Secrets of a Cocktail Master,”
Food & Wine,
www.foodandwine.com/articles/secrets-of-a-cocktail-master
.

61
. Martineau, “The Era of Copyrighted Cocktails?”.

1
. Melvin Helitzer,
Comedy Writing Secrets: How to Think Funny, Write Funny, Act Funny and Get Paid For It
(Writers Digest Books, 1987), 4.

2
. This chapter is adapted from Dotan Oliar and Christopher Sprigman, “There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy,”
Virginia Law Review
94.8 (2008): 1787. All interview excerpts in this chapter are taken from the Oliar/Sprigman article, unless noted otherwise.

3
. Silo360, Joe Rogan and Carlos Mencia Fight,
www.youtube.com/verify_age?next_url=http%3A//www.youtube.com/watch%3Fv%3D5gVYfDCgYxk
(accessed June 6, 2011).

4
.
See
Silo360, Joe Rogan and Carlos Mencia Fight; nomencia, Mencia Steals from Cosby?
www.youtube.com/watch?v=lCixAktGPlg
at 1:18-2:03 (accessed June 6, 2011) (comparing Mencia and Cosby versions of a bit); deadfrogcomedy, George Lopez v. Dave Chappelle: Is This Joke Stealing?
www.youtube.com/watch?v=-OHMeDqhAgU
at 0:15-1:16 (accessed June 6, 2011) (comparing Mencia and Chappelle versions of a bit); deadfrogcomedy, Whose Joke Is It? Carlos Mencia? D.L.
[sic]
Hughley? George Lopez?
www.youtube.com/watch?v=kPuu_VE7KOA
at 0:14-0:27 (accessed June 6, 2011) (comparing a bit used by multiple comedians).