Gelf Magazine - Looking over the overlooked

Food

August 6, 2008

Culinary Copyright: A Recipe for Disaster?

Chefs and cookbook authors are increasingly pushing lawsuits and plagiarism accusations on their colleagues. What separates culinary similarity from thievery? And who the hell owns mashed potatoes, anyway?

Adam Conner-Simons

English muffin croutons in the Caesar salad. When Rebecca Charles first showed her mother's recipe to her then sous-chef Ed McFarland, she warned him, "You will never make this anywhere else." Six years later, McFarland stood by as his lawyer declared, "I didn't know Caesar salad and lobsters are protected under the intellectual-property laws." Charles, chef of the upscale New York seafood restaurant Pearl Oyster Bar, had accused McFarland of appropriating dozens of recipes, plus the overall concept and lay-out of her New England-style seafood restaurant in his restaurant, Ed's Lobster Bar, just over a mile away. This past April the former colleagues settled out of court.

courtesy wd-50.com
"I understand the desire to protect intellectual property, but sometimes it gets to be a little too McDonalds-y for me." —Chef Wiley Dufresne of wd-50

courtesy wd-50.com

Charles is not the only chef getting, well, fed up with what she perceives to be culinary plagiarism; copyright cases are popping up all over the country. Earlier this year Jessica Seinfeld (wife of Jerry) was sued for copyright infringement by Missy Chase Lapine, who alleged that Seinfeld cribbed ideas from her book about sneaking healthy foods into children's dinners. (Charles, McFarland, Seinfeld and a lawyer for Lapine did not respond to Gelf's interview requests for this article). In 2006, Australian chef Robin Wickens was publicly disgraced for plagiarizing numerous dishes from American restaurants, including Wylie Dufresne's wd-50 and Grant Achatz's Alinea. And while nobody is expecting Le Guide Culinaire from politicians, potential first lady Cindy McCain found herself in hot water when The Huffington Post discovered that several "family recipes" posted on her husband's website were lifted verbatim from Rachel Ray's site. And those are just the stories in the news; who knows how many more chefs are being ripped off every day?

The sudden flurry of copyright accusations reflects several upheavals in the culinary world. One major change is that there has never before been more money and status in the high-end restaurant business. According to the National Restaurant Association, the restaurant industry is projected to reach $558 billion in sales this year, which represents a 47 percent increase since 2000. "Food companies have been protecting their creations for a long time," says copyright lawyer Charles Valauskas, "but it has finally gotten to the level of restaurants because now, with millions of dollars on the line, the stakes are higher." Also, the rise of cooking shows and celebrity chefs have made the culinary field hotter than ever.

Another major impetus for the dramatic increase in recipe plagiarism cases is also behind increases in piracy in the music, film, and yes, needlepoint industries. The internet has made it easier than ever to share recipes—and to pass them off as your own in your celebrity cookbook. At the same time, the more open dissemination of information on the web also makes it easier to identify a work of plagiarism—which has happened quite prominently on food blogs and forums like eGullet.

These two factors—the increasingly high stakes of the restaurant world and the ease of stealing and of catching thieves on the internet—are primarily responsible for the spike in food copyrighting cases. But how exactly does one define recipe copyright?

Should McFarland's lobster bouillabaisse come with a bibliography on the side?
The legal offense of copyright violation—to be distinguished from the ethical offense of plagiarism (using others' ideas without attribution)—is a relatively new phenomenon in the culinary world. "[Recipe copyright] is something people have only been thinking about for a few years, so there really are no universal rules we can look at," says Steven Shaw, co-founder of eGullet and a lawyer-turned-food writer who has investigated recipe plagiarism for Slate. Current laws do not cover "mere list[s] of ingredients" or "processes" unless they are accompanied by "substantial literary expression in the form of an explanation or directions" or as part of a larger work such as a cookbook. Many chefs consider such a definition to be a gross simplification of recipe creation, maintaining that the culinary arts require nuanced reflection about what permutations of flavors and procedures work best. They point out that the purpose of stricter copyright is not to encourage chefs to start suing each other, but to recognize that their work is as expressive as any musician's or writer's. "Chefs think of themselves as artists, so if other artists get copyright, they think they should get it too," says University of Illinois law professor Christopher Buccafusco, who wrote the culinary copyright paper "On the Legal Consequences of Sauces."

What makes the topic particularly thorny is distinguishing between instances of similarity and thievery. "It's tricky to establish how far you have to go to make your recipe unique," says Chicago chef Rick Tramonto of Tru. "If I sauté my garlic for three minutes, and you sauté yours for four, is that enough?" Such questions are further complicated by the countless dishes that have been standardized in modern cuisine. "Who the hell owns mashed potatoes?" asks Chicago Tribune critic Phil Vettel. "What can you add to it that makes it yours?" Contemporary cooking—from Julia Child to Emeril Lagasse—draws heavily from its own past, making the notion of a truly novel food idea somewhat unattainable.

The tradition of building off of old recipes stems partly from the ethic of sharing that Wylie Dufresne describes as "fundamental to the fraternity of chefs." The downside of such an open-source community, however, is that well-meaning chefs might not even realize that they are adapting others' recipes. "You look at a lot of recipes to get ideas," says Sara Moulton, who serves as executive chef of Gourmet magazine and hosts the public television show Sara's Weeknight Meals. "And before you know it—whoops!—you don't even remember that you saw it somewhere else." Can chefs really be expected to police themselves so stringently? Should McFarland's lobster bouillabaisse come with a bibliography on the side?

Two Dishes

A dish from Robin Wicken's Interlude (left) and its inspiration from Aliena. Image from eGullet.com

Aside from the difficulty of enforcement, another oft-cited anti-copyright argument is that the laws stifle creativity by reducing experimentation. Here, many culinary experts beg to differ. "If you can't protect what you invent, there's no incentive to invent," Shaw says. "Copyright allows people to profit from their inventions." This is certainly the case with the related topic of food patenting. High-tech chef Homaro Cantu, who has patented a number of food items, tells Gelf that he has made money on his edible paper patent, which he says cost him "well over six figures." Virtually all food-related patents, however, concern advanced processes and technologies rather than recipes. For most chefs, the process is impractical. "Patents are fine for Pepsi and Frito-Lay," says Shaw, "but the average chef isn't going to spend $600 every time he has a new dish."

Several chefs Gelf interviewed worry that the profession's friendly, open-door atmosphere will be sullied by its increasingly recipe-protective nature—Cantu, for instance, has ruffled some feathers for having employees sign non-disclosure agreements (NDAs) that hold them liable if they disclose food technologies developed at Moto. "I understand that he wants to protect his intellectual property, but it gets to be a little too McDonalds-y for me," Dufresne says. "It takes away from the spirit of the craft." (Cantu says that the NDA only applies to "about 3 percent" of Moto's dishes.)

The prospect of a lawsuit-filled future certainly gives some culinary artists pause, especially those who are used to working out problems in the kitchen, not the courtroom. "It's ridiculous to go to a lawyer before you sit down and talk with a chef," says John Kinsella, president of the American Culinary Foundation and senior chef at the Midwest Culinary Institute in Cincinnati. "Eventually it becomes too territorial."

Related on the Web

•Joyce Gemperlein's Washington Post story "Can A Recipe Be Stolen?"

•Pete Well's Food & Wine article "The New Era of the Recipe Burglar"

•Christopher Buccafusco's legal paper "On the Legal Consequences of Sauces"

Correction: Due to an editing error, an earlier version of this article incorrectly referred to Rebecca Charles as Rachel Charles.

Adam Conner-Simons

Adam Conner-Simons is a freelance journalist in Boston.







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Comments

- Food
- posted on Aug 13, 08
Stephanie

Article citing Chris!!

- Food
- posted on Aug 13, 08
Stephanie

The name is Rebecca Charles, not Rachel.


Article by Adam Conner-Simons

Adam Conner-Simons is a freelance journalist in Boston.

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