The Knockoff Economy (15 page)

Whether this dynamic is producing successful restaurants is a separate question: the public’s taste for creativity on their dinner plate may be limited. (Indeed, Richard Blais’s first restaurant flamed out quickly.)
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But it unquestionably is producing substantial innovation. In a field where innovation for centuries was seen as incremental at best and undesirable at worst, this is a noteworthy development.

To summarize the argument so far, we have explored three reasons that chefs continue to create even though their central creative work—their
recipes and the food they cook from them—can be freely and legally copied:

• Because widespread copying can burnish a chef’s reputation for creativity, which is increasingly valued by diners and the broader public;

• Because copies in the culinary world are necessarily reinterpretations, not exact copies, and hence do not readily compete with originals and may even serve as advertisements for originals;

• And because social norms among skilled chefs restrain the most egregious forms of copying and thereby blunt its impact.

Together, these arguments help to explain why the widespread copying of new dishes is not viewed as much of a threat in the culinary world. Copying in the kitchen has both positive and negative effects, and the balance between the two varies from case to case and chef to chef. But the key point is simply that copying does not inevitably kill creativity, as the conventional wisdom about copyright law assumes. Warren Buffet (supposedly) once said that his investment approach works in practice, but not in theory. The situation here is not so different. We know that copying does not kill creativity among chefs because chefs remain enormously creative even though the rules against copying barely apply to them. But until now, there have been few attempts to explain why, or how, this is possible.

A deeper take on how chefs continue to create in the face of copying begins with a more frontal challenge to the premise that copying is anathema to creativity. Perhaps copying is not, on balance, much of a threat to innovation, but instead a valuable tool to achieve it. To consider this, step back to the basic justification for regulations on copying. As we explained at the outset of this book, monopoly rights in creations are said to be the price we pay to ensure that creations keep coming. As the Supreme Court declared in a famous music case from the 1970s, copyright exists “to stimulate artistic creativity for the general public good.”
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The underlying policy behind these rules is forward looking and results oriented.

This does not, however, necessarily entail a focus on preventing copying. The real goal is
incentivizing innovation;
stopping copying is just a means to
that end. If copying does not diminish innovation, it is not a problem in itself. The standard view considers it self-evident that copying is harmful to innovation. The worlds of fashion and food, however, give us substantial reason to doubt that copying is inevitably harmful.

There are other, similar, examples, to which we will soon turn. Probably the best known is open-source software—software designed collaboratively by large groups of (sometimes otherwise unconnected) individuals. Software and food are very different, and we will talk more about open source in the Conclusion to this book. But some of the principles underlying open-source software also have a surprising resonance in cuisine. Chefs often say that culinary change is largely the product not of large inventive leaps, but of collective, incremental processes of innovation. If so, spreading and sharing innovative ideas is essential to creating them. Legal prohibitions on copying may indeed incentivize some creations, as the traditional view of copyright assumes. But by impeding sharing, these restrictions threaten to squelch other creations. That is the big idea behind open source: innovation is better served through open collaboration and unimpeded propagation and use than via enforcement of property rights.

This dynamic might also explain why creativity in the kitchen continues to flourish in the face of extensive copying. In short, perhaps copying is not the problem, but instead is part of the solution. Freedom to copy enables chefs to learn from one another, and thereby to keep incrementally improving their offerings.

Indeed, in their “Statement on the ‘New Cookery,’” famously inventive chefs Ferran Adria, Heston Blumenthal, and Thomas Keller declared that “culinary traditions are collective, cumulative inventions, a heritage created by hundreds of generations of cooks.”
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If they are correct, the application of standard rules of copyright to dishes and recipes would create more problems than it might solve. Not only would chefs have legal costs to bear—protecting their erstwhile innovations while defending themselves against (perhaps frivolous) claims of copying. They would also face new barriers to their engagement in the centuries-old “collective, cumulative” process that Adria, Keller, and Blumenthal salute.

That process has successfully produced a world of great food. And it is hard to see how food could be much
more
creative than it already is. Like fashion design, culinary creation is not a problem to be fixed. It is instead a window on an important and overlooked understanding of innovation.

Step down into Crif Dogs, a tiny, unassuming hot dog spot on busy St. Mark’s Place in New York City, and you may notice—if it is after 7
PM
or so—a small knot of slightly anxious people clustered by a vintage pay phone on the wall to your left. If you pick up the phone, a woman will answer and a hidden opening will appear. Beyond the opening you may glimpse the dim confines of the modern-day speakeasy known as PDT (short for “Please Don’t Tell”). If you don’t have a reservation you probably will have to wait an hour or more for entrance—the hostess will even take your number and call you when your seat is ready. But once inside you’ll be glad you did. PDT serves some of the best cocktails in New York, a famously besotted city where serious bars compete to attract serious drinkers.

Part of PDT’s appeal is obviously its retro-speakeasy vibe and its dark interior filled with stuffed squirrels and other bizarre decor.
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But equally important are the excellent cocktails served there. Like a lot of new bars in cities such as New York, Los Angeles, Chicago, and San Francisco, PDT serves impeccably made and innovative drinks. PDT and its brethren combine two important trends in 21st-century bar culture: secrecy and creativity.

The secrecy part—the unmarked doors, the fake phones—harks back to the Prohibition era, but without the risk of arrest. The creativity part is obviously what interests us in this book. Bars like PDT (and today there are many) certainly serve their share of simple martinis and Manhattans. But they also offer some pretty creative cocktails, many of which feature unusual and handcrafted bitters, carefully sourced and shaped ice and freshly infused elixirs of various kinds. Put together in unusual ways, the fine ingredients and meticulous mixing make for excellent and interesting drinking.

Indeed, like cuisine, it is fair to say we are living in a golden age of cocktails. And as a result, many of the same questions that we raised in this chapter about cuisine apply to cocktails. Like great dishes, great drinks can be very innovative—more so than many people may realize. Consider a few examples.
In Los Angeles, the Tar Pit serves the Prude’s Demise, made with overproof rum, kumquats, kaffir lime leaves, black pepper agave syrup, velvet falernum (a kind of tropical flavoring), and lime juice. Similarly, Death & Co. in New York serves a Cortado: two kinds of rum, coffee-bean infused vermouth, white crème de cacao, demarara sugar, angostura bitters, and mole bitters. Aviary in Chicago makes a Hot Chocolate with tequila and Fernet Branca that involves smoking milk over a burning cigar. At the now-closed Tailor in New York City, cocktail empresario Eben Freeman offered “solid” cocktails, including a Ramos Gin Fizz marshmallow and “White Russian Breakfast Cereal”—cereal soaked in Kahlua, half and half, and vodka, then dehydrated and served in a small bowl.
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Even in lesser known drinking meccas, like Charlottesville, Virginia, the business of high-end cocktails is booming. Charlottesville’s Blue Light Grill makes many of its own ingredients, including house-made tonic. One drink recently on offer at the Blue Light featured a mix of bourbon and sugar syrup painstakingly infused with the flavor of expensive tobacco. The goal, according to the bartender-innovator, was to capture the taste of whisky and cigarettes without the need to light up. Not every innovative cocktail is a success—some, indeed, are quite difficult to swallow. Yet, in their creativity and care these drinks push the envelope well beyond the world of the frozen margarita or Long Island iced tea.

Like great and inventive dishes, great and inventive drinks can and often are copied by others, sometimes as overt homage but often simply because they are great, and people want to drink them. For some, creative cocktails are the chief draw not only in bars but also in restaurants. Indeed, as the Pulitzer prize-winning food critic Jonathan Gold argued with regard to Los Angeles, “In some of the best restaurants in town now, the bartender may be as well-known as the chef and even more creative.”
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Molecular mixology and molecular gastronomy often blur. At Bazaar, the celebrated Los Angeles restaurant of Spanish chef Jose Andres, his dirty martinis are served with a spherified olive—olive oil and olive essence in a gel-like robe—and his mojitos are poured over a kind of cotton candy. The afore-mentioned Aviary,
a spinoff from the acclaimed Alinea restaurant in Chicago, even dispenses with a bar, instead making drinks in an open kitchen.

Can creative cocktails be protected from copying? Recipes, as we discussed, can be freely copied. Nonetheless, some are trying to use other legal rules to protect their liquid creations. In 2010, Painkiller, a tiki bar in New York City, was threatened with a cease and desist letter by the makers of Pusser’s rum, who claimed a trademark in the Painkiller cocktail (dark rum, orange juice, pineapple juice, and coconut cream, topped with nutmeg).
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Gosling’s Black Seal rum, based in Bermuda, likewise claims a trademark in the Dark ‘n Stormy, a simple mix of rum and ginger beer.

“We defend that trademark vigorously, which is a very time-consuming and expensive thing,” said Malcolm Gosling Jr., whose family owns Gosling’s rum. “That’s a valuable asset that we need to protect.” Not all see it the same way, as an article in the
New York Times
explained,

But a trademark-protected drink—especially one as storied and neoclassically cool as a Dark ‘n’ Stormy—seems anathema to the current bartending practice of putting creative individual spins on time-tested drinks. Drinks like this one undergo something like a wiki process: a tweak here, a substitution there, and the drink is reimagined.
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For the most part, bartenders tend not to keep their inventions secret. Like chefs, they often freely pass their recipes and techniques on to others. Still, there is some resistance to the culture of copying that exists in the high-end cocktail world. Eben Freeman, the originator of the solid cocktail at Tailor, also claims creation over a technique called “fat-washing,” which involves mixing a melted fat with a spirit of some kind and then chilling it, so the fat rises to the top and can be skimmed off, leaving only the flavor.
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“In no other creative business can you so easily identify money attached to your creative property,” said Freeman in a recent interview. “There is an implied commerce to our intellectual property. Yet we have less protection than anyone else.”
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However hyperbolic this last claim, it is true that copying is common in the mixology world. Yet as Freeman himself illustrates, there is substantial innovation taking place.

In short, cocktails look a lot like cuisine: creativity absent copyright, coupled to vibrant competition. And many of the same factors that we argue shape innovation in the kitchen apply across the restaurant in the bar.

First, cocktails are hand-crafted, often right in the front of the customer, and technique and ingredients matter substantially. So like food, an individual drink is not reliably the same from maker to maker, and may even vary at the same bar in the same night. This is especially true of today’s often rococo cocktail creations, which demand precision and often arcane inputs.

Second, cocktails, even more than cuisine, are a performance as much as a product. A bar, fundamentally, is at least as much about atmosphere as it is about actual drinking. So the copyist of a particular cocktail isn’t necessarily going to compete with the originator. Of course, if the bar itself were copied—the entire look and feel of the place—the copyist would be vulnerable to a trade dress lawsuit, just as one restaurant cannot copy the entire look and feel of another.

Third, bartenders, Eben Freeman notwithstanding, tend to believe in sharing as an ethos—perhaps even more so than chefs. Take the crucial issue of technique. For years, well before the classic cocktail craze took off in the United States, Japanese bartenders had been meticulously recreating American drinks. One of the most famous is Kazuo Ueda, who invented the “Hard Shake” method of mixing drinks. Though it appears to have been taken down now, until recently Ueda operated a Web site called Cocktail Academy, where he explained the Hard Shake as well as his overall philosophy of drink making (and philosophy is not as much of a stretch as it may seem—the site included entries such as “The Way as an Art of Cocktail,” referencing the classic Japanese Cha-do, or “Way of Tea”).