Some people eat to live. Other people live to eat. As I have gotten older, I have realized the error of my ways and moved from the former to the latter category. Most of my vacations with my wife revolve around, “Where are we going to eat?”In between culinary ventures to, among other stops, extravagant gelaterias in Rome, divine pâtisseries and boulangeries in Paris, and some of New York’s finest steak houses, we have managed to “squeeze in” the Eiffel Tower, the Coliseum, and various MOMAs along the way. A walk across the Brooklyn Bridge is nice and all, but it’s really just the most direct path to Grimaldi’s Pizzeria in DUMBO (and if you’re ever in the neighborhood, one of NYC’s best pastry shops, Almondine, is just up the street).
I have often wondered about what type of legal protection creative cooking receives. The law protects the look of a restaurant as trade dress, novel equipment as a patent, or formulas carrying a competitive advantage as a trade secret (see Coke and KFC), but what about the food?
Should Thomas Keller’s signature Salmon Cornets be copyrighted if he simply serves them to you at Per Se but has not printed the recipe in a book? Can another chef make Salmon Cornets without infringing on Keller’s rights? The short answer right now: yes, chefs can and do copy each other’s dishes. But should they? Currently, it is only in regards to recipes that copyright law extends potential protection. So when a dish is merely cooked and served by a chef it is not subject to copyright protection; however, if the chef reduces that recipe to writing, the writing itself is protectable, so long as it is more than a “listing of ingredients.” It should be noted that just making a copyrighted recipe does not violate the copyright. The protection is limited to the words, meaning that I could open a restaurant and serve food from Gordon Ramsay’s cookbook “Three Star Chef” all day long.
The likely justification for this stance by the courts and Copyright office is akin to the fashion debate: just as clothes are deemed functional, food has been relegated to a utilitarian status. No matter how you slice it, food fulfills a functional purpose—it is there to make us full. One could argue based on the idea/expression principle that chefs’ various renditions of food are expressions and not ideas themselves. But given the long history of human food consumption, i.e., since Day 1, it is also not too much of a stretch to say that everything we eat is based on something else; most recipes are modifications of another recipe. Originality is debatable. A Kobe beef burger with black truffles and Caciocavallo Podolico cheese is still a hamburger, just a really expensive one. As a policy matter, it would prove nearly impossible to separate food from its predecessors. Even in high-end restaurants, most chefs create food using similar recipes and concepts—that is until now.
Almost exactly 100 years ago, Pablo Picasso and a small school of artists, including Georges Braque, Juan Gris, and Fernand Leger revolutionized the art world with a movement known as “Cubism.” A radical departure from other movements at the time, starting in the early 1900s the Cubists began portraying their subjects as flattened and two-dimensional. This movement had a lasting effect as the world moved into the 20th Century and reshaped the way people think about art. Fast-forward to 2010, and a similar revolution is taking place in restaurant kitchens. Under the growing culinary movement of molecular gastronomy, chefs Ferran Adria of El Bulli, Heston Blumenthal of the Fat Duck, and Thomas Keller of the French Laundry and Per Se, among others, have turned their restaurant kitchens into one part food production center, one part science lab. While they likely would not proclaim themselves as influential as the Cubists, a strong parallel holds: these chefs are radically redefining the way people think about food.
Alternatively known as “New Cuisine,” “Progressive Cuisine,” or “Molecular Cooking,” molecular gastronomy uses scientific principles, materials, and equipment in the creation of food. At El Bulli in Spain, deemed by many critics as the best restaurant in the world, a typical thirty-course meal might include: crystal of parmegiano, a glass-looking substance that is actually cheese; “spherical olives” that look like olives but are actually olive oil bound in thin membranes; or mimetic almonds, where the almonds variously have ice cream textures, gel textures, and regular almond textures.
While typical diners may turn up their noses to molecular gastronomy, so did the average person in 1910 looking at a Picasso. Food experts and the fine dining crowd rave over molecular gastronomy’s unique combinations of taste and texture. And as with other forms of “high culture,” while many people understandably do not care for fine art, high fashion, performing arts, etc., various elements of these disciplines typically influence mainstream consumerism. So while the average person may not ever eat mimetic almonds, it would not be surprising to see some aspects of molecular gastronomy influence the masses. Chefs, it seems, should hold legal control over how their creations are used.
Gastro-molecular chefs have finally taken food out of the realm of “public domain” and “derivative work” and placed an undeniable stamp of originality on their culinary expression. Molecular gastronomy meets the Copyright Act’s § 102(a) requirements. The bar for originality is low, and a dish need only be independently created by a chef and possess some minimal degree of creativity. Clearly, “prawn spaghetti” and “glass cheese” are original and creative, as opposed to the hamburger discussed above. Moreover, these intangible works of authorship are “fixed” when the chef employs his culinary skills in preparing and then plating the dishes. Thus, the basic elements of copyright protection are seemingly met.
A main concern would be whether food arguably fits in any of the categories protectable as works of authorship under section 102(a). The most analogous category would be as “pictoral, graphic, and sculptural works.” Many have likened molecular gastronomy to fine art. It is hard to believe that a blurry, ill-composed amateur Polaroid photo could be protected but not a highly skilled culinary creation of the variety discussed in this section.
Alas, while there are convincing arguments that the time for food copyrights has arrived, the benefits of extending copyright protection still do not merit extending such protection. One principle reason for providing copyright protection is to spur innovation by providing financial incentive; yet sufficient financial incentives do not exist to warrant protection of food, even molecular gastronomy. Unlike movies, television, music, literature, and even art (and I think this is an area favoring copyright protection of fashion over food), food and restaurants have a more limited reach and commercial impact. Typically a chef only works in one or two restaurants, and there is likely no negative financial effect by allowing two or more chefs to make the same food. If I make Keller’s Salmon Cornets in Chicago, this will have little to no effect on his business in NYC or Napa Valley. Food is much more localized in terms of reach. Moreover, techniques, seasonings, and ingredients vary subtly or even substantially between chefs, and to the extent that people really do want Keller’s food, they will make the effort to go to his restaurants. Furthermore, the costs of a lawsuit provide another financial disincentive for extending copyright protection. The thousands of dollars potentially required for litigation far exceed the tens or hundreds potentially lost by competitor use. Additionally, many chefs actually do not own their restaurants. Unless otherwise agreed to in contract, any creations they make would constitute a work made for hire, which would actually give the copyright to the financer of the venture. This would not promote innovation.
Further, as mentioned, one of the main theories behind copyright protection is to promote progress and stimulate the production of creative works to benefit the public. While some argue that copyright protection is truly desirable and necessary, the restaurant industry seems to have been able to survive, indeed even to thrive and reach the point of heightened creativity seen in molecular gastronomy, without the protection of copyrights. While a limited few may desire to protect their culinary creations, many chefs enjoy sharing recipes and the innovation that comes from such collaboration. And for those chefs that blatantly copy, the stigma of an “outing” by the public, the media, and fellow chefs is likely a sufficient deterrent—a chef’s reputation is highly valued. So to the extent that the scientific processes behind molecular gastronomy are useful and non-obvious, perhaps patent law is a more worthy area of protection than copyrights.
*Rob Zawrotny is a third-year law student at Wake Forest University School of Law. He holds a Bachelor of Arts in English from Brigham Young University in Provo, Utah. Mr. Zawrotny is an Articles Editor on the Wake Forest Law Review and a member of the Moot Court Board.