From the shopping mall to the corner bistro, knockoffs are everywher
e in today’s marketplace. Conventional wisdom holds that copying kills creativity, and that laws that protect against copies are essential to innovation–and economic success. But are copyrights and patents always necessary? In The Knockoff Economy
, Kal Raustiala and Christopher Sprigman provocatively argue that creativity can not only survive in the face of copying, but can thrive.
Copying versus Creativity
In the spring of 2007 a chef named Ed McFarland opened a restaurant on Lafayette Street in downtown Manhattan called Ed’s Lobster Bar. For years McFarland has been the sous-chef at the very successful Pearl Oyster Bar on Cornelia Street in Greenwich Village. Pearl Oyster Bar was a small place, but it was well known and always packed. The chef and owner, Rebecca Charles, had built an avid following based on a simple formula: a short list of excellent seafood, elegant but spare New England coastal décor, a signature Caesar salad with English muffins croutons, and plenty of oyster crackers on the tables.
Eventually Ed McFarland sought to strike out on his own, and when he did, he took with him a lot of ideas drawn from his years working at the Pearl Oyster Bar. At least, so claimed Rebecca Charles. Shortly after Ed’s Lobster Bar opened less than a mile from Pearl, an angry Charles filed suit in the federal court in lower Manhattan. In her suit she claimed that McFarland had ‘pirated Pearl’s entire menu; copied all aspects of Pearl’s presentation of its dishes; [and] duplicated Pearl’s readily identifiable décor.’ According to Charles, Ed’s Lobster Bar was ‘a total plagiarism’ of her well-known restaurant. Perhaps most galling to Charles was the Ceasar salad. When she taught McFarland how to make her signature Caesar salad, she told him, ‘you will never make this anywhere else.’ Ed’s Lobster menu nonetheless featured a Caesar salad somewhat tautingly dubbed ‘Ed’s Caesar.’
McFarland saw things differently. ‘I would say it’s a similar restaurant. I would not say it’s a copy.’ Ed’s Lobster Bar, he asserted, was ‘more upscale…a lot neater, a lot cleaner, and a lot nicer looking.’
The suit between Rebecca Charles and Ed McFarland was eventually settled out of court. But the issues it raised continue to vex the cultinary community. What rights does a chef have to her creations? What makes a dish original? When does homage cross over to theft?
Recipes are not generally copyrightable
Like the fahion industry, the world of cuisine features extensive imitation–call it borrowing, copying, or, if you prefer, piracy. And, in a situation similar again to fashion, for the most part of American law grants chefs very limited rights over their creations. For all practical purposes recipes, no matter how original, cannot be copyrighted. So while a cookbook can be copyrighted as a whole, the individual recipes can be borrowed and republished by anyone–as a brief tour of the Internet, and popular cooking Web sites like Epicurious, will make clear.
Yet as the appeals court noted, American law does not protect every act of creativity. Copyright protection does not extend to any ‘idea, procedure, process, system, method of operation, concept, principle, or discovery’. A recipe certainly looks like a procedure or method of operation: it tells the cook how to combine a set of specified ingredients using a number of specified techniques, and in what order. And indeed most courts and commentators that have considered the issue have held recipes to be procedures. Consequently, recipes are not generally copyrightable.
Limits on copying
→Chefs can copy recipes and dishes from one another. But they cannot copy the look and feel of entire restaurants. Nor can they freely use trademarked names or phrases, such as ‘Spago’ or ‘I’m lovin’ it!’
→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 remain a well-guarded secret and none of Coke’s rivals have ever succeeded in perfectly replicating it.