Who Is Bootlegging the Great Chefs of Europe?

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One of the many strange wrinkles in America's intellectual-property regime is that you can't copyright a fashion design or a recipe—an interesting fact for the music and movie industries to consider, since the fashion and restaurant industries have managed to do pretty well without such regulatory crutches. Unfortunately, some chefs have been catching the IP bug. Food and Wine reports:

Inarguably, Cantu's gonzo innovations place him among the shock troops of American cuisine, but it's possible that a more significant legacy will be his efforts to own the ideas that are born in his kitchen. He has already filed 12 applications for patents, including one detailing the process for making cotton-candy paper, and says there are more to come.

For all his originality, Cantu is not the only one who thinks that the ideas born in a restaurant should belong to the chef. There are at least two ways to claim legal protection for intellectual property. One is Cantu's route, through patents, but another, copyrighting a dish, could have much more far-reaching effects on the culinary world. Chefs have traditionally worked on an open-source model, freely borrowing and expanding on each other's ideas and, yes, sometimes even stealing them outright. But some influential people are now talking about changing the copyright law so that chefs own their recipes the same way composers own their songs. Under this plan, anyone who wanted to borrow someone else's recipe would have to pay a licensing fee.

The next step, I guess, will be work-for-hire contracts and suits against chefs who take their recipes with them when they get a better job. Don't tell Cantu.

Elsewhere in Reason: Julian Sanchez reports that similar ideas are infecting fashion designers.

[Via bOING bOING.]

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  1. Copyright is a “regulatory crutch”?
    Are the articles in Reason copyrighted?
    Or is the written (but not recorded) word still holy?

  2. Why wouldn’t the copyright model work for food? It has worked so brilliantly for music. Look at all the innovation and quality albums out these days. It goes hand in hand with a tightening of their grip on their IP. Fashion has a real problem, because we all know that the fashion industry doesn’t make any money because they don’t have copyright protection.

  3. ed:
    Nice snarky response. Does it actually mean anything?

  4. It’s a long established principle that chemical processes can be patented. Cooking is nothing more than a specialized chemical process. Chemical engineering curricula frequently include problems on food mass-production and ChEs are hired in great numbers by prepared-food producers such as Kraft and Hershey.

    In that light I don’t see why a chef, who is arguably doing a similar job to a chemical process designer (albeit with less hard science, although not less art, involved), should not be able to claim specific recipes and even perhaps innovative techniques and equipment.

  5. Yes, Lamar, it does.
    I’ll try to explain it to you.
    If the concept of intellectual property extends to the written word (e.g. Reason‘s copyrighted articles) why shouldn’t it also extend to those same articles (or poems or songs) that are recorded? Not a difficult concept, really. I approach it, however, from the perspective of the artist (me), not the consumer or outright thief (you).

  6. I can see McDonald’s copyrighting hamburger.

  7. I see an agribusiness copyrighting production of a certain strain of wheat. I see a bakery copyrighting baking a loaf of fucking bread. “Common use” you say? “no – our process is entirely different. We bake at 376 degrees.”

  8. Just what the world needs……..a bunch of primadonna chefs suing each other over the fact that they “own” a recipe. Give me a stinkin break. Many of todays “reveloutionary” dishes have been done at one time or another….This is the same kind of drivel that is infecting the Organic foods industry…. You cannot sell a product using the annoying buzz word organic if you are not certified by the USDA. Essentially the USDA “owns” the word organic, and if it is used by anyone who has not subjected themselves to the governmental anal probe then the USDA can levy a $10,000 fine………Totally absurd…. This is the same crap that would ensue if chefs could claim they invented the hamburger……. makes me want to vomit through my nose.

  9. Of course, fashion is still eligible for trademark and for design patents (which cover, roughly, any aesthetic design embodied in a material object), and the presentation of food might be as well. Triple-protecting with copyright as well is just silly — how many laws do you want people to have to dig through just to make dessert?

    Of course, copyright at least is less noxious than patent — an accuser has to prove actual copying rather than a mere coincidence — so it might make sense to trade the one for the other. Food can get copyright if it gives up its patent rights.

  10. The perceived problems with the current patent system can be traced not to the idea of patents/trademarks/copyrights themselves, but to several distinct issues including:

    The lack of true research into what constitutes prior art and public domain by patent and copyright examiners, resulting in blatantly invalid patents;

    and

    The egregious abuse of extension provisions of copyrights to include not only the original creator but the licensee/publisher and the creator’s heirs, well beyond the original lifespan of the creator.

  11. What good chef uses recipes anyway? So a copyrighted recipe calls for 1 gram of something, you put in .099 grams and your not in violation.

  12. “If the concept of intellectual property extends to the written word…why shouldn’t it also extend to those same articles (or poems or songs) that are recorded?”
    (1) The concept of IP started with the written word because of the written word. To say that copyright “extends” to the written word shows a lack of understanding. Copyright isn’t just the sound of ka-ching to an artist, it is about the germination of ideas as well, (2) It already does extend to recorded music, but it also extends to software that can be used to get your art without paying, any device that could be used to counter anti-copy devices, and reverse engineering. Innovation is stagnating because people like you put the goddam Artic Monkeys above progress, (2) I never said copyright shouldn’t apply to recorded music, and (3) what’s this have to do with expanding copyright to include everything everyone comes up with?

    “Not a difficult concept, really. I approach it, however, from the perspective of the artist (me), not the consumer or outright thief (you).”
    Though you claim to be an artist, you don’t seem to understand that no idea is purely original. Yet you seem to advocate a view of copyright that has the government regulating and restricting the very ideas that lead to your inspiration. For an artist, it’s weird that you don’t seem to know where ideas come from.

  13. db,

    “It’s a long established principle that chemical processes can be patented.”

    It has been even longer established that cooking is a field in which borrowing occurs.

  14. Borrowing happens just as much in chemical process design–borrowing from well-known processes not under patent.

    I guess I should point out that generally it is not the end product that is patented in chemical processing (with the exception of pharmaceuticals) but the process used to produce them. Improving the process efficiency by even 0.1% can mean the difference between a commercial winner and a money pit.

    Cooking is more like specialty chemical processes, in which efficiency is less to be sought after than quality. Of course, if one starts to talk of cooking in terms of specialty chemical processes, then the argument for treating recipes (which include not only ingredients but processes) is bolstered.

  15. So, someday, somewhere in America, a housewife might find herself running afoul of the law for adding a pinch of oregano to her meatball sauce?

    (And before one asserts that she’s not intending to make money off the recipe, may I point out that I’m not intending to sell any of the DVD’s I copy either.)

    We really, really need an ongoing national debate on the whole IP mess.

    (Disclaimer: I don’t copy DVD’s. Seriously.)

  16. My point, db, is that cooking is not a specific variety of chemical process.

    It is an art and discipline that goes back thousands of years before chemistry was invented.

    Cooking may resemble a sub-field of chemistry in some ways, but it is not. It is its own field, with its own long-established practices and traditions.

  17. Good point Joe. The IP community (i.e., the MPAA, the RIAA and their lobbyist ilk) believe that everything anybody comes up with should be protected by government regulations. If a chef came up with a meatball that sells like hotcakes, why shouldn’t he be able to stop the entire world from making that meatball? In fact, I’m going to copyright the mixed metaphor.

  18. ed, under the Berne Convention, the articles in Reason are automatically copyrighted. A more interesting question is whether the editors think this is proper. It would be consistent with a libertarian outlook to ask what right the state has to impose these monopolies. Your personal investment in this regime does not confer moral authority, but if you think it does, know that I am an author.

    Grant Gould, on the other hand, patent has a shorter term and (in theory) requires the disclosure of sufficient information to replicate the work.

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