The Knockoff Economy (13 page)

Ultimately the eGullet Society editorialized on the issue, opining—accurately we think—that the debate over Robin Wickens’s menu had tackled a major frontier in the industry:
“We believe the Interlude controversy is not a simple matter of a lone Australian restaurant copying a few dishes from halfway around the world. Rather, it’s one of the most significant issues facing the global culinary community today.”
Many of the chefs we interviewed for this book had a similar view on the phenomenon of copying. But there was by no means unanimity among chefs on how big a problem copying was, or whether laws regulating the copying of food were a good—or workable—idea.

As David Chang, of the famed Momofuku empire, declared—echoing the views of many others we spoke with—“There is nothing new under the sun. Our job is just to make [existing dishes] better.” Josiah Citrin of Melisse
in Los Angeles was similarly dubious about the role of creativity: “we are all taking from the wheel and reinventing it,” he said. “The wheel goes around. It’s very hard to say what is a copy and what is not a copy.” As this suggests, many great chefs are uncomfortable with the notion of true culinary invention. In an interview given in another setting, Thomas Keller of the French Laundry identified the central issue of origin in describing his very famous—and widely copied—salmon cornets:

Look at the cornets for example. Where did it really come from?… Did I really invent it? Did I create it? Or was it an inspiration from an ice cream cone that I just looked at differently? Do I have the right to say that this is mine and nobody else’s? I don’t know…. What happens to my salmon cornet if they copyright it? Does someone have to get my permission to use it? Does somebody have to pay me royalties?… I kind of have a problem with that. I really do.
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Charlie Trotter likewise said that “I honestly don’t care [about copying]. It doesn’t bother me because we did [it] first [….] It’s our point of view, and I think people know what’s up.”
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Even those chefs who are more positive about the idea of copyrighting food were generally skeptical that it is workable in practice. It is “too simple to change a few ingredients in a dish,” said Joachim Splichal of the Patina group.
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Laurent Torondel of the Bistro Laurent Torondel empire likewise thought copyright could not work in culinary world. (And in Torondel’s BLT restaurants, the complimentary—and addictive—popovers are even served with the recipe helpfully attached.) Tourondel echoed the views of several chefs in saying that while creativity was very important, “execution is everything.”
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Where this debate will end up is anyone’s guess. Perhaps the law of intellectual property will inevitably embrace the creations of fine chefs. Maybe there will be an amendment of the copyright statute to embrace recipes and built food—as has been done in the past for buildings and boat hulls. Or maybe through creative lawyering and the massaging of existing legal doctrine, chefs will obtain a bit more protection over their creations and recipes, as chefs such as Homaro Cantu are attempting to do. Such prognosticating is, however, not our primary interest in this book. We are instead interested in what we can learn from the creativity of the culinary world. How has
innovation thrived—indeed, arguably accelerated—absent meaningful legal protection for new creations? And what lessons can be drawn for other innovative industries?

Like many areas we explore in this book, culinary creativity has been largely ignored by those who study innovation.
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The challenge is to understand how creativity survives in the face of copying, and to map out the mechanisms that support this process. As with the fashion designers we met in the previous chapter, creativity among chefs seems to defy the notion that imitation kills innovation. Despite extensive copying, chefs continue to create at a high rate. Next we consider several arguments that together may help explain the unusual relationship between cuisine and copying.

One possible explanation for why copying in the culinary world appears to have few bad effects is that copying is actually less prevalent and less blatant than one might expect. Yes, it is generally legal to copy. But despite the weakness of legal controls, there is not a copying free-for-all. The relevant restraints are not generated by law, however, but by extra-legal forces: high-end chefs, at least in some places, self-police the most egregious copying via social norms. The result is some copying, but not an overwhelming amount. And the copying that is permitted by these norms is generally not very harmful. Legal scholar Robert Ellickson famously wrote about “order without law” among the cattle ranchers of Shasta County, California.
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Perhaps the same is true among high end chefs.

The best evidence for chefs’ use of social norms to police copying comes from a fascinating study of elite French chefs by two economists, Emanuelle Fauchart and Eric von Hippel.
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Fauchart and von Hippel studied French chefs who worked in Michelin starred and “forked” restaurants—that is, those restaurants especially renowned for their food.
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These chefs were all
very good and well regarded; some were famous beyond the confines of the culinary world. Fauchart and von Hippel conducted a number of interviews; they also sent out a detailed questionnaire asking about the prevalence of copying among French chefs, and about likely responses when copying comes to light. The researchers concluded that an effective system of social norms operates to restrain and police copying among the elite chefs of Paris. They identified three main norms that are in play in the world of French haute cuisine:

1. Accomplished chefs expect that other chefs will not copy their recipes exactly.

2. Accomplished chefs expect that chefs to whom they reveal information will not pass that information on to others without permission.

3. Accomplished chefs expect that chefs to whom they reveal information will acknowledge them as a source.

These three norms are fairly simple. The first does not proscribe any and all copying, just copying which is “exact.” As we discuss further, “exactness” in the culinary context is hard to define, and indeed Fauchart and von Hippel note that the boundary between an exact copy and a permissible reinterpretation can be blurry. But it is easy to see a link here to the debate in fashion over point-by-point copies versus mere homage.

The second norm shaping the behavior of French chefs essentially mimics the law of trade secrecy. The
creator
can reveal information to whom she likes, but there is an understanding that the
receiver
of the information will not spread it further without the approval of the creator. Moreover, the economists found that in many instances recipes and techniques were traded with the expectation that the recipient would reciprocate with something useful of her own—an arrangement sometimes dubbed “informal information trading.”
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This I-scratch-your-back, you-scratch-mine system helps promote both innovation and collective learning among the participants.

The third norm, that of attribution, is sometimes enforced by chefs through public acts against rule breakers: the wronged chef may write a public letter identifying herself as the true creator of the dish, or may simply let others know informally that she, and not someone else, is the originator. Often action by famous chefs is unnecessary since their work is well known
and copies that transgress the rules are easily recognized by other chefs. The threat of public exposure is enough in most instances to deter copying.

Together, Fauchart and von Hippel argue, these three simple norms provide an important bulwark against blatant copying. They deter most uncredited appropriation of signature dishes, and they ensure that at least some of the rewards for innovation go to the putative originators. And while the economists’ study only establishes that these norms operate among French chefs, similar norms may well exist more widely.

Formal codes of professional ethics within the industry support, or at least are consistent with, these norms. The Code of Ethics of the International Association of Culinary Professionals, for instance, states that a chef should credit a source for a recipe if only minor changes are made. If more major changes are made, one should indicate that the recipe is “based on” or “adapted from” another.
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And whether or not customers have read the Code of Ethics, as the Interlude saga shows, many intuit or appreciate the basic ideas of attribution and inspiration (as opposed to total imitation) and also work to police those norms through food blogs, outlets like Chow-hound, eGullet, and Eater, and word of mouth.

Legal scholar Christopher Buccafusco has undertaken another study examining the norms of elite American chefs. He concludes that at least some American chefs think much the same way as their Parisian peers—a viewpoint that the pillorying of Robin Wickens amply illustrates. Inspiration and homage are fine, or at least accepted, but attribution is crucial, and blatant and exact copying without attribution is bad. Our own conversations with chefs working on this side of the Atlantic broadly reflected this position as well. But not all chefs agreed that norms existed, or that they governed behavior effectively, or that they were as well defined and widely shared as those among the French chefs.

Again, social norms grounded in attribution and confidentiality certainly do not block all imitation. But they may provide enough of a check on copying to maintain adequate incentives to continue to create and to dampen any initiative to alter the existing legal rules. As we’ve seen, our culinary culture continues to create many fine and innovative dishes. Something explains the remarkable creativity of contemporary chefs; we suspect that norms play some role.

There is a broader lesson here. Social norms that operate alongside or in place of legal rules have long attracted interest from scholars. If social norms
are powerful enough, they can achieve much the same outcome that legal regulation would—they keep honest people honest, even if they fail to stop the determined violator, and they express the rules of a given community about what is allowed and what is not. Norms can probably achieve this at a lower cost to society than legal rules do, though measuring this is very hard to do.

Is this the case in the world of cuisine? Since a copyright system for recipes or “built food” is necessarily conjectural—as far we know, no nation has implemented such a system
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—we cannot directly compare the relative efficacy or efficiency of norms versus laws. But we do know a little bit about one side of the ledger. Informal discussions with chefs support the view that a legal prohibition on copying would be difficult to create and perhaps ineffective in practice. A 2006
Food & Wine
magazine story on copying in the kitchen, for example, quoted Grant Achatz of Alinea restaurant, whose cuisine is often emulated by others (such as by the ill-fated Robin Wickens). Achatz declared flatly that “chefs won’t use [a copyright system.] Can you imagine Thomas Keller calling me and saying, ‘Grant, I need to license your Black Truffle Explosion so I can put that on my menu’?”
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Perhaps Achatz is unusual in his views, but our discussions with chefs, and those in other studies, suggest that he is not. Most chefs do not seem to want a legal regime against copying.

But how effective are social norms at policing copying? A common critique of norm-based approaches to social regulation is that they lack effective enforcement. In Fauchart and von Hippel’s study, enforcement of the norms was largely accomplished via informal retaliation by other chefs. As one interviewee explained, “If another chef copies a recipe exactly we are very furious; we will not talk to this chef anymore, and we won’t communicate information to him in the future.”
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This not merely a loss of reputation,
in other words; the sanction is also denial of access to other innovations, and some degree of social shunning to boot. For the very best chefs, who by definition are a small group, this is likely to be an effective strategy. The more a chef sees herself as a member of a profession, with its own standards and mores of behavior, the more likely it is that norms enforced by social sanction and reputational penalty will effectively police her behavior.

As this suggests, however, there are obvious limitations to norm-based systems of control. Norms are generally thought to become less effective as the size of the relevant group grows. As chefdom rapidly becomes more global—think Britain’s Gordon Ramsay opening a restaurant in Los Angeles, or France’s Joel Robuchon (among many others) in Las Vegas—the group grows larger, social ties grow weaker, and the effectiveness of norms is very likely to decline. Moreover, the tradition of staging in fine kitchens, combined with a more international market for talent, creates significant scope for those tempted to knock off existing dishes—especially when they do so in faraway places where they may not be noticed (at first) or which are distant enough that the pain of social pressure and lost reputation are simply not sufficient to deter them from close copying. Indeed, this may have been Robin Wickens’s story.

Consider, however, whether far-away copying is a threat to the creative incentives of most chefs. The restaurant business is intensely local. With the exception of a small class of wealthy super-foodies, people rarely travel far simply to eat in a restaurant. They eat near their home, or near wherever they find themselves when traveling. For this reason, a restaurant in Paris is competing mostly with other restaurants in Paris. As a result, the fortunes of a Parisian chef will often be unaffected by copying elsewhere. Indeed, as we discuss further later in this book, the copying may well enhance her reputation, stamping her as a pioneer worthy of imitation—and spurring food fans to seek out the original.