The Knockoff Economy (10 page)

McFarland saw things differently. “I would say it’s a similar restaurant,” he told the
New York Times.
“I would not say it’s a copy.” McFarland pointed to some differences between the two establishments. Ed’s Lobster Bar, he asserted, was “more upscale… a lot neater, a lot cleaner, and a lot nicer looking.” Moreover, Ed’s had a skylight (Pearl had none) and a raw bar (though at the time, and still today, Pearl served oysters and clams on the half shell, as well as a shrimp cocktail). McFarland also noted that much of the décor in Pearl Oyster Bar was in fact common to seafood bars in New England, which was the ostensible homeland for the menu and the design of both Pearl Oyster Bar and Ed’s Lobster Bar.
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Nonetheless, it was undeniable that Ed’s Lobster Bar looked a lot like Pearl Oyster Bar. It was casual but crisply designed, with a long and narrow room and a bar as the centerpiece. The menu looked quite similar too, though Ed’s, as befitting its name, featured lobster more prominently.

The suit between Rebecca Charles and Ed McFarland was eventually settled out of court. But the issues it raised continue to vex the culinary community. What rights does a chef have to her creations? What makes a dish original? When does homage cross over to theft?

These questions, and others like them, are unsettled, but the stakes are not small. Like the fashion industry, the restaurant industry is very large—sales at American dining establishments alone were estimated at nearly $604 billion in 2010.
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Also like fashion, 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 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.

Perhaps more important, the “built food”—the edible dish itself—cannot be protected either. However good Rebecca Charles’s Caesar salad is, there is nothing in the law that stops the Ed McFarlands of the world from reproducing it. Anyone can taste a dish they like, apply their expertise to reverse-engineer it (by recognizing the taste and appearance of primary ingredients and reconstructing the steps taken to prepare them), and then recreate it elsewhere, including in a competitor restaurant. As any connoisseur of good food knows, this kind of copying happens all the time.

The contemporary culinary scene is nonetheless astonishingly creative. Globalization has brought us an ever-expanding palette of new ingredients from around the world, and made them ever more affordable. And new cooking techniques, such as those pioneered by the “molecular gastronomy” or “modernist cuisine” movement, abound. It’s no wonder that new dishes are invented and refined every day. In many respects we are living in a golden age of cuisine, with more choices and more creativity than ever before.

In short, cuisine presents much the same puzzle as fashion. How do chefs remain so creative while enjoying so little legal protection for their core product? Why doesn’t the mainstream view of copying—that it will squelch creativity—seem to apply in the kitchen?

For millennia, chefs throughout the world have labored to create delicious food. Yet for most of that history they labored in obscurity. In the West, only in the nineteenth century did a few great chefs, like Antoine Careme and Auguste Escoffier, achieve a public persona and some measure of fame. For many decades after these pioneers first entered the public eye, chefs were rarely treated as artists on par with their peers in the visual or literary arts, and for the most part restaurants, well into the 20th century, hardly noted their chefs. Today, of course, star chefs seem to be everywhere. Food lovers follow chefs from restaurant to restaurant, famous “consulting chefs” license the use of their names to kitchens that they may have never entered, and the Food Network has spawned an entire industry of chef contests and celebrities. The
New York Times
dining section documents the comings and goings of chefs as if they were baseball stars traded from team to team.

While countries such as France, Italy, and China have ancient and storied food traditions, for much of its history the United States lacked a robust culinary culture. Local cuisines have long flourished in obvious places like New Orleans, as well as in less obvious spots, such as the low country of South Carolina, where traditional ingredients and dishes were passed down and cherished. But for the most part it is fair to say that compared to Europe, the United States was a culinary wasteland for a very long time. In his engaging history of contemporary American food culture,
The United States of Arugula,
David Kamp recounts the story of James Fenimore Cooper, the novelist, returning in 1833 from several years in France. Commenting on the differences between the French and American diets, Cooper called Americans “the grossest feeders of any civilized nation ever known,” and a people who subsisted on a “heavy, coarse, and indigestible” diet.
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While by the Gilded Age of the late 19th Century it was clear that the rich in the major cities ate very well—think Diamond Jim Brady and his Brobdingnagian feasts of oysters, terrapin, and roast duck—there was no mass culture of food appreciation in the United States. Fine dining in restaurants existed in places like New York, but until the end of the Second World War most Americans seldom ate in restaurants.

This began to change by the middle of the 20th century. The 1939 World’s Fair in Flushing Meadows, New York, was arguably the birthplace of contemporary fine French dining in the United States; it was the source of Henri Soule’s Le Pavillon restaurant in Manhattan, which, until its closure in 1971, was the sun around which postwar haute cuisine revolved in New York—as well as the training ground of many top chefs.
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In the same era, the influential chef and food writer James Beard nurtured a growing appreciation of traditional American cooking and ingredients. The burgeoning American interest in fine cooking was exemplified by, and stoked by, Julia Child’s television show
The French Chef,
which debuted in 1963 and quickly became a cultural icon. The nation, increasingly richer and blessed with more leisure time, embraced cooking as a pastime and even a passion.

By the 1970s a new wave of chefs, both in New York and in California (as well as in France), was redefining fine cuisine, emphasizing local ingredients, lighter treatments, and more casual service. Americans in due course discovered hitherto-exotic provisions such as goat cheese, baby greens, and sundried tomatoes. Lawyers Nina and Tim Zagat introduced their populist (in the sense that they reflected the views of many discerning customers, rather
than a single critic) restaurant guide in 1979, as Americans began eating out in greater and greater numbers. By the 1980s a full-blown culinary revolution was taking place, led by names that are now well known: Wolfgang Puck, David Bouley, Danny Meyer, Alice Waters. Slowly, chefs were becoming celebrities and restaurants a site of art appreciation on par—in the view of many—with the museum and the opera house. Even the US Department of Labor took note of these shifts, changing their classification of chefs from “domestics” to “professionals” in 1976.
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The “chef revolution” of the late 20th century coincided with, and was driven by, changes in how great cooking was understood and evaluated. Creativity has always been a part of fine cooking, alongside skillful and precise preparations of time-honored classics. But increasingly, culinary reputations were being made by innovative and bold new dishes. A well-known example is Wolfgang Puck’s much-imitated smoked salmon pizza. Pizza had been around for a long time, but it took Puck, an Austrian working in tradition-flouting Los Angeles (and to a large degree—perhaps a very large degree—working with the assistance of his original Spago pizza-man, Ed LaDou) to create something truly new in the pizza world.
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Puck’s success spawned a rash of imitators, and pizza has never been the same. Along the way Wolfgang Puck became a very rich and famous man.

In short, from the 1960s onward, and especially during and after the 1980s, American food culture underwent a remarkable flowering. Across the board, a wealthier and more time-starved nation increasingly chose to eat out rather than cook in. To be sure, Americans overwhelmingly ate at fast-food restaurants, or at one of the thousands of simple Chinese take-out joints that dot the continent.
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(There are more Chinese restaurants in the United States than there are McDonald’s.) In parallel, however, the nation developed a more sophisticated restaurant scene, along with an increasingly food-knowledgeable populace that yearned to eat innovative, challenging cuisine.

Today, it is not too much of an exaggeration to say we live in an unprecedentedly food-centered nation—not for everyone, to be sure, but for a large
slice of affluent Americans. For these fortunate people, the search for creative and unusual meals is a way of life. Food is now art as well as sport.

The rise of the regular weekly restaurant review in the 1960s and 1970s perhaps best encapsulates this new reality. While the
New York Times
long had a food editor for what was known as the “women’s pages,” it was only with the advent of the legendary Craig Claiborne as food editor in 1960 that the make-or-break starred restaurant review, today so familiar a feature, came into its own.
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With it came a culture of seeking entertainment and pleasure from chefs, who now competed for public and private acclaim and the dollars a worshipping public brought. To do so, increasingly, ambitious chefs sought to either introduce novel cuisines to Americans or innovate within traditional idioms. And all the while the restaurant industry boomed: from $43 billion in food and drink sales in the United States in 1970 to over $600 billion today.
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Over time, nearly every great foreign cuisine, and many minor ones, became available, first in major American cities and then in smaller cities and towns, both in traditional and modern, tweaked, form. “American” food, usually dubbed New American, also became a religion for many as it updated traditional regional cookery to achieve a new, more sophisticated cuisine. A vibrant culture of culinary innovation took hold. Moreover, this culture was increasingly global, with chefs around the world frequently collaborating and sometimes borrowing from one another (or, less charitably, stealing). To be sure, some of this innovation has been less in the actual food than the atmosphere or design of the restaurant. (There is a restaurant in Brussels where diners are suspended in mid-air in a crane, and one, unsurprisingly now closed, in Tel Aviv where diners “pretended” to eat but paid with real money).
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But none of this flim-flammery gainsays the tremendous diversification of dining in the United States and around the world. Today, revered chefs such as Thomas Keller are known not just for their excellent restaurants but also for specific dishes they invented—such as Keller’s famous “Oysters and Pearls”: caviar-topped oysters on a bed of tapioca pearls.

The apotheosis of this trend toward extreme culinary innovation is what is often termed the “modernist cuisine” movement.
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Practitioners, such as Ferran Adria of the recently closed El Bulli restaurant in Spain and Homaro Cantu of Moto in Chicago, use complex and highly inventive processes to create flavored foams, liquid “olives,” edible inks, and various other savory special effects.
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Many of these dishes push the envelope of good taste; a few
are bizarre and arguably inedible. But they are unequivocally novel, and people pay dearly to experience them.

Even outside this rarified world, however, creativity in cuisine is prized in a way that contrasts sharply with the past. Chefs frequently seek to charge jaded palates through novel combinations of flavors, ingredients, and technique. The
Wall Street Journal,
for example, noted in 2006 “a big shift in high-end restaurant culture…. The past decade has seen the focus shift to innovation” and away from the apprentice-driven reproduction of classic dishes that anchored cuisine (especially French cuisine) for many decades.
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Not all restaurants pursue this approach, by any means, and the largest concentrations of highly innovative chefs are found in major cities like New York, Los Angeles, and Chicago. But creativity and variety are now prominent elements of culinary scenes throughout the nation. In short, it is difficult to dispute the proposition that we are living in a golden age of cuisine, with a far greater diversity of dishes—both innovative and traditional—available to us than ever before.

This tremendous output of creativity in contemporary kitchens has been accompanied by substantial copying, or more charitably, borrowing, among chefs. Now-ubiquitous dishes, such as molten chocolate cake or misoglazed black cod, did not just pop up like mushrooms after a storm. Each debuted in a specific restaurant but soon migrated outward in slightly altered form. The putative inventors (Jean-Georges Vongerichten in the case of molten chocolate cake, Nobu Matsuhisa for miso black cod)
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can claim no royalties on their creations. Nor can they effectively halt the interpretation of their creations by others.
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Indeed, today a molten chocolate cake is even on the menu at a mass-market chain such as Chili’s. (In fact, a recipe claiming to be for Chili’s Molten Chocolate Cake is readily available on the Internet).
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