Keep recipes free

This month Food & Wine columnist Pete Wells addresses patents, copyrights, and cooking in New Era of the Recipe Burglar. He begins talking about the odd experience of seeing copyright notices on food while eating at Chicago's Moto (something that bothered me as well, see An Evening at Moto). He then talks about several chefs who have stolen recipes from other chefs (including presentation, down to using the same Crate & Barrel votive-candel holders!) and passed off the dishes as their own. Clearly, such plagiarism is annoying and needs to be addressed. But the suggestions that follow from Steven Shaw, eGullet co-founder and former lawyer, in the article sound down-right frightening to me. Wells writes:

Shaw told me he hoped to convene a summit meeting with some of the smartest people in the food world to hammer out a workable model for copyrighting food. First, he’d propose changing the copyright code, possibly by making cuisine a subdivision of the existing category for sculpture or acknowledging recipes as a form of literary expression. For enforcement, Shaw leans toward creating a system like ASCAP, an association that collects composers’ royalties for public performances of songs—on the radio, in nightclubs and so on...

...Yes, Shaw agrees that the law would need to carve out a huge number of dishes in the common domain. Like Shakespeare’s plays, classics such as French onion soup would belong to everybody. But a chef who came up with a new soup could copyright it and demand a licensing fee from anybody else who served it. Shaw thinks this would spur creativity; if there’s money to be made from new kinds of soup, then more chefs will make soup. It might even lead to a split in the job market between thinkers and doers.

I don't even know where to begin. The idea that a change to copyright law would spur chefs to new levels of creativity seems spurious to me. The lack of money to be made from soup is not due to a dearth of soup innovations. It's due to the cut-throat margins of the restaurant business. Do we really need to get lawyers involved in what we eat? What restaurateur needs a line item for recipe licensing fees in his already tight budget?

The current copyright law is excessive and if anything, stifles, rather than promotes, innovation. (Current law grants copyright to an author for the term of her life plus seventy years. If I were to live to 100, what you're reading right now wouldn't enter the public domain until 2142!) You can look all around the creative world, from Disney to the recent troubles with the civil rights documentary Eyes on the Prize, for examples of how copyright has been perverted from the original intent to offer a limited set of protections to "promote the progress of science and useful arts."

So why would we want to bring that burden into the world of cuisine? Heck, the idea of copyrighting a recipe assumes one can actually create an original recipe! But aren't all recipes derivative works? How can I possibly come up with a unique cookie recipe that isn't based on more than a hundred years of cookie recipes using flour, eggs, a leavening agent, a fat, and a sweetener?

The culinary world at its best is a world of craft and art. A fine meal is a performance, not a soulless assemblage of ingredients. I feel good when I eat Grant Achatz's "Hot Potato" at Alinea. I don't want to eat "Hot Potato™ by Grant Achatz" rotely created at some food counter in the airport. Clearly there are issues with how chefs get rewarded for their creativity and effort, and I would love to see the best get the recognition they deserve. But bringing the lawyers in? I don't see how that benefits chefs in the long run, or diners, or amateur cooks. In the end, I suspect the ultimate beneficiaries would be the same people who always win. As we get ensnared in the webbing of our increasingly-complex legal system, the ones who always make the most money are the lawyers.

There are 32 responses

Chefs protect their recipes all the time. They simply call it a "secret recipe". We don't know what is in any number of recipes out there and for the most part people don't really try to find out.

If I make a new recipe and I don't want people to have it, I just don't tell people what I used to make it. That's pretty much how it has always worked. Auntie Rae died with her recipes and the whole family is still missing her meatloaf (or in my family, meat blintzes).

People may try to figure out the secret, but so be it. If they would rather put in 100 hours matching the recipe, than creating something of their own, then I am sure they will get what they deserve in the end.

Why would we possibly need a copyright for food? I totally agree, I do not want to eat trademarked food.

The best warning line in history comes out of "Battle for the Planet of the Apes":

"In all of this fighting, only the weapons have won."

Lawyers are weapons, are they not?

In 13 years of professional food writing, I can count on two fingers the number of chefs who have refused to share a recipe when asked. By nature, food people are generous of spirit, and recognize that the great fun of food is in the sharing -- with their customers, with family, with friends. To the chefs who really feel they've created something new (and we know they have not -- they have, perhaps, taken a new approach to something old), I say "keep your secret", but don't pass along to the rest of us the cost of copyrighting your cuisine.

"As we get ensnared in the webbing of our increasingly-complex legal system, the ones who always make the most money are the lawyers"

Yes, because stupid people like this keep doing stupid things like this with complete disregard for anyone but the person in the three foot cylindrical area they occupy.

God help the beer butt chickens.

By nature, food people are generous of spirit,

Lydia, I agree. I tried to work that in to the post but it was getting so long. Thanks for saying it. My gut reaction to this was copyright goes against the whole spirit of what we all do and love. Cooking is all about giving so others feel good!

IMHO, this is a solution which benefits the few but has repercussions for the many. And the people who will most benefit will be those who least need it.

A sous chef who creates a new recipe would be prevented from using his own dish at his next restaurant. We would have starbucks-style lawsuits shutting down small businesses. And chefs wouldn't be able to pay tribute to their mentors (It would have taken me a lot longer to know about l'Arpege without its famous egg on US menus.)

So let Chef Cantu continue with his NDAs; perhaps other chefs will want to do the same. But it is interesting to note that Chef Adria, to whom Chef Cantu owes a great debt whether he acknowledges it or not, is free with his ideas and techniques.

The world of magic is quite similar. Sleight of hand techniques and gimmicks are created and unfortunately stolen. However the society of magicians as a whole make it a strong point to attribute originators without bringing in lawyers.

Perhaps this is the necessary ingredient. Teach younger chefs the history of their art and instill the sense of pride in their craft.

I was always told you cannot copyright an idea, only an expression of an idea. To copyright a food recipe would be tantamount to copyrighting every other kind of "recipe" such as all slasher movies, spy novels or landscpae paintings. An example of why you cannot copyright such things is the classic case of standing in the same spot where Ansel Adams captured the view of El Capitan in Yosemite and taking the exact same photo yourself. This does not violate copyright in the same way that cooking someone else's recipe is not a violation of copyright. It's the expression that's copyrightable, not the idea. That's a fundamental principle of copyright. Ideas can be patented, but there are restrictions on that, too.

The article oversimplified things. There's another means of IP protection today (besides the usual trademarks, copyrights, and patents) called "trade secrets". The Coca-cola syrup recipe isn't published anywhere, but it's held as a trade secret, and everyone who comes into contact with it understands this.

If someone were to take it and publish it or use it elsewhere, they'd be liable for stealing a trade secret. Chef's recipes are, in practice, the same thing, even if they're not sued over.

In any case, now you can't really succesfully copyright a "recipe" -- you can only copyright the form (sort of the manifestation) of it. If you were to send it to the Library of Congress to copyright, it couldn't really be used to stop people from using it to make other dishes: instead it would just prevent someone from publishing it in its exact current form.

To change copyright law to protect this would really be blurring the line between it and patent law. And patent law, because it's more restrictive, only gives exclusive use for a short time (~20 years, compared with ~100 years for copyrights).

There is an instructive precedent. In 1658 Francois Pierre La Varenne tried to copyright his "fragrant sauce" for vegetables. Apparently, as chefs throughout France began copying it, indeed, getting stinking rich off of it, he would storm the kitchen during service and thrust handfuls of hair into everyone's mise en place, putting the brigade dans le merde and not making any friends amongst the cooks. but the courts did not back him in his quest. thus, he could not claim as his own, and earn cold cash with, what would become the emulsified butter sauce. thinking of all the royalties he would never claim for the aspargus with hollandaise and eggs benedict served at continental breakfasts throughout the world, he died that year, a madman.

a cautionary tale...

Ruhlman sharing cautionary tales of madmen!! Rich with Irony....!

What is interesting to me about the Australian case is that without any IP enforcement whatsoever, the end result is largely the same as it would have been with IP laws in place. And no lawyers were harnessed in the process.

To me the whole subject is akin to academic writing and publishing, where knowledge is generally freely shared and properly accredited. When it is not and plagerism occurs, it is eventually found and the offending party loses their credibility within the community.

I don't think many chefs will jump on the IP bandwagon. In fairness to Chef Cantu, he is trying to patent a food process, which has been done for a very long time -- right down to seeds in the 19th century.

For our part at Alinea, all of our recipes will be freely shared.

Two things: first, w/ reference to the potential restrictive effect of copyright, I like to use the example of the Portlandia sculpture here in Portland, Oregon. It's the second largest bronze statue in the nation after the Statue of Liberty. Ever heard of it? Probably not. That's because the sculptor zealously guards his copyright in the sculpture, threatening lawsuits left and right against anyone who uses its likeness... Whether or not you agree w/ him, it's pretty easy to see the restrictive effect. No one knows it's here.

And, to second "This is Rediculous" - under current law, recipes can't be copyrighted because they are, at their core, a set of instructions. The creative expression that goes into the heading, or the description about how to combine ingredients, etc. - that's what can conceivably be copyrighted. When you make the recipe you're not violating a copyright. When you copy it and publish it as your own, you are.

I'm wondering if the ASCAP-style recipe police will soon be storming in to kitchens across the nation, serving all of us with lawsuits for making copyrighted soup? What if we use 1/2 cup of milk instead of the 3/4 cup called for in the copyrighted recipe? How will anyone prove that? What if Jane Doe claims she's making a parody of the copyrighted soup?

I had always thought that a major part of the creativity in inventing an preparing a dish was not just in the recipe, but in the execution--a good recipe, horribly or indifferently executed is worlds away from a dish done well.

Even more so than in other creative endeavors, though, cooking benefits from the variations on a theme that each chef or home cook can make on an existing theme--one that may have been created by someone else. But adding a few steps to a process, or a single new ingredient can make the end result something far better, or at least wildly different.

Placing the restrictions of copyright on that base recipe would deny everyone wanting to try it out and personalize it the opportunity to shair their added improvements with the people they serve.

I certainly understand wanting to have attribution where it's due, but copyright and patent law just aren't the way to go for recipes.

(as Nick Kokonas points out, patenting a truly new process for preparing food, as opposed to new combinations using existing or obvious tecniques can be a different case)

Quite impressive. On one side: chefs. On the other side: amateur cooks. Blamed: the lawyers, who as far as I can tell are nowhere nearby.

Current copyright law very clearly cannot stretch to a list of ingredients and an order to put them together in expected ways.

Thalia, did you even read the article we're discussing? Your comment sure makes it seem like you didn't.

Sounds as if the food industry wants in addition to suppress ordinary people's cooking, since sharing recipes becomes copyright infringement. The act of cooking becomes just too scary. Safer to eat TV dinners and not be sued.

Many recipe websites (especially the more corporate) now have alarming swatches of lawyerese on them.

Hmm... I can see where the "need" for "recipe copyright" comes from, but I can see where the problem with it lies too. There would need to be a clear distinction for "cooking for profit" and "non-profit cooking", IE cooking at home or with friends. It's one thing to copy a restaurant's signature dish to sell as your own, but it's another to try to copy a restaurant's signature dish as an experiment you want to eat or share with friends. Somehow, I don't think this is being incorporated into their ideas.

I can see it now... the Restaurant Industry Association of America('s lawyers) roving around the suburbs of the US checking barbeques for anybody copying Bobby Flay's latest corn and cilantro and more cilantro creation.

Another problem is modification - pretty much all recipes are modifications of other recipes. So what degree of similarity is needed to classify a dish as an infringement? Is it within +/- 2 pinches of salt perhaps, or if they have the same smell? Even flavor is an issue considering the fact that you can make a dish with the same flavor as something else through use of different ingredients and cooking methods.

"Shaw thinks this would spur creativity; if there’s money to be made from new kinds of soup, then more chefs will make soup."

You know, taking the previous example (other restaurants copying one restaurant's dish down to the presentation), one could also say that stealing actually spurs creativity. Unless that restaurant comes up with some new dishes, they could lose out to their pirate competitors. With a copyright, there's no impetus to create anything beyond the first dish - people like the dish and they have to come to me to get it, so why should I bother making anything else?

Ironically, if your restaurant goes downhill because other restaurants are copying a dish you have and you can't create anything new and tasty, you're probably not one of the "smartest food people in the world".

Intellectual property laws are a disease on the populace.
Why does "such plagiarism need to be addressed"? If a recipe is good it should be used by as many people as possible regardless because eating is all about enjoying food!

"Shaw thinks this would spur creativity; if there’s money to be made from new kinds of soup, then more chefs will make soup."
WRONG. Anyone with in-depth knowledge of the history of intellectual property knows that the only thing this would serve is to create monopolies for a select few and stifle innovation from most people out of fear of lawsuits over possible infringement. Creativity is borne out of a desire to create, not greed to make more money.

Say chef A has a copyrighted recipe for a dish, that would make all similar dishes effectively outlawed. Chef B couldn't innovate because chef A would have grown rich from the copyright of that recipe and can sue for infringement even if no infringement took place, and your average cook can't defend himself against a rich guy with lots of lawyers.. Which would give the chef monopoly on not only his dish but also all potential innovations that another might come up with, thus ending innovation in cooking.
Think that couldn't happen? Look at the fields of software, this scenario plays out all the time.

This is just screwed up - one industry has noticed how much the RIAA is making by their current round of "extort the customer" and thinks they fancy a piece of that deal!

I hereby lay claim to beans on toast, cheese on toast, oh and a cheese sandwich. From now on if you make one of these you must pay me $1!

Shaw's comments reflect a shocking degree of self-importance and detachment from the real world of cooking. Professional cooking is--and always has been--a MENTORING process. One chef teaches his cooks EVERYTHING they know: every recipe, every technique, every lesson painfully learned over time in the hope that they will be able to successfully and exactly recreate those recipes so that their restaurant will operate consistently. It's the way we learn--and have always learned. There ARE no secret recipes in restaurants. Or how the hell would they work in the first place?
The craft (and notice I say "craft") of cooking has always been about people teaching others through example, trial and error--whether you're talking a mother teaching a child to cook, Alain Ducasse farming out the creation of a menu to a chef de cuisine at a Spoon outpost, or a freaking caveman demonstrating how to kill and cook an animal.
Shaw's "advocacy" reminds one of the similarly megalomaniacal proposal a while back from the Zagats--for a "Diner's Bill of Rights"--and both ideas are so far removed from the very nature of cooking, feeding and nurturing as to suspect that the proponents miss the whole point of food entirely. Do you EAT the damn food--or take pictures of it? Do you enjoy it--or collect the experience like a butterfly enthusiast? Do you like and understand cooks--or just follow their careers like a hoarder of baseball cards? I know of few chefs who wouldn't laugh their asses off at this insane, crackpot idea. Any chef who does take it seriously should consider a serious reality check (and possible med adjustment) as they will surely soon be referring to themselves in the third person.

Chefs learn by stealing recipes--then slowly finding their own way.
I quote Ferran Adria--demonstrating his "parmegan ice cream sandwich" : " Soon..everyone will be doing this." His attitude being: "Big deal! Move on!"
A more sensible idea would be appropriate politeness. When lifting...say...Fergus Henderson's "Roast Bone Marrow with Parsley and Caper Salad", give mention of the "homage" on the menu--and in the press--when asked. Give the originator a call and say "I'm using your bone marrow thing on my menu". Let the chefs work that out among themselves. In the closed, inbred world of chefs, where everybody knows everybody else, out and out recipe thieves--devoid of their own ideas--will surely be exposed--and ridiculed--by their peers. That is punishment enough.

Why does "such plagiarism need to be addressed"?

Gary, I was referring to the case (mentioned in the article) of the Australian chef who was winning awards for his innovative cuisine. It came to light that he had copied them from various restaurants he visited for short working stints in the US. He didn't just take the recipes, he copied the way they looked and were presented to diners. Photos show the stuff he copied from Alinea were so precise, they were virtually indistinguishable from the originals.

This goes beyond just using a recipe, in my mind, and gets at the point "chef" raises: the distinction of cooking for profit. In the case of the Australian chef, there was serious intellectual (and culinary) dishonesty, for financial and professional gain. That's what should be addressed, though I don't think copyright changes are the way to do it.

Gary also writes: "If a recipe is good it should be used by as many people as possible" and as you can see above in this thread, Nick Kokonas (one of Alinea's owners) says, "For our part at Alinea, all of our recipes will be freely shared." That exemplifies the culture of giving in the culinary world and I would hate for that to disappear.

Ah, perfect. I was going to write about how shaming would probably be enough to keep a chef from passing off copies as his/her own above. But now Bourdain's done it much better than I could have. Ridicule from peers will do just fine.

Wow. Where to begin commenting? First, although I might consider a different spin on many of Meg's comments, on the whole I think she makes valid points right down the line. I say this in spite of the fact that I am a visual artist and copyright protection for all creative work is dear to my heart. It's just that it can be carried to stupid extremes.

It might be worth noting that Steven Shaw is professionally trained as a lawyer. What's more, I believe litigation was his specialty. Litigtors argue cases in court. In practice, I find them to have a much different attitude and outlook on life, in and out of court, than those attorneys dedicated to finding a amicable solution between parties. Litigators have a propensity towards seeing complex issues from one perspective and doggedly arguing all points from that view. I was one of the original affiliates of eGullet, and instrumental in putting together eGullet's original intellectual property guidelines. I resigned in protest of growing disingenuous and unethical management practices over a year ago. Tony sums up the self importance issue very nicely. I believe Pete Wells might have been better off talking to diners and additional chefs as well as lawyers, and if lawyers, perhaps to intellectual property specialists and not to someone who argues food policy with a litigator's mindset. I don't see the introduction of lawyers into the process of preparing a menu as anything but an additional burden likely to leave less profit in the hands of successful chefs and drive new restaurants to close faster as a result of additional legal expenses. I think that's inline with what Meg said.

"Chefs protect their recipes all the time." That's been true to an extent with traditional French chefs who are known to change one step, or leave out or change one ingredient when offering a recipe. I suspect it's less true within the professional kitchen itself. I have seen evidence of a level of transparency among contemporary chefs in Spain. Adria's openness has been mentioned twice, but I have seen evidence of this same sharing of knowledge at levels below Adria as well. This may be what's driving the creativity that's led Spain to the forefront of gastronomy today and what makes dining in Spain perhaps more exciting than France at the moment. Achatz and Dufrense seem open to teaching and sharing.
We'll see if retentiveness on the part of any American chefs will hold us back as a gastronomic society or not. I don't think Bill Gates has led us into the future of computing.

It's been an interesting thread so far, with intelligent comments. Let's hope it doesn't go in circles. Jennifer Leuzzi, who writes for the NY Sun. had a couple of interesting posts on her blog "snack" on September 13 & 15 entitled "what's mine is yours." It predates Wells' article in time and depth. Full disclosure: I posted a comment there and have spoken off the site with her about this.

I think Wells gets it exactly tight here:

"If copyright law were extended to restaurants, it seems quite likely that proprietors would lay claim to any dishes invented in their kitchens. What about the sous-chef or line cook whose brilliant idea this afternoon landed right on tonight’s menu—what are the chances he’ d see any royalties?"

As a writer and a former computer programmer I can say that copyrights and patents only benefit those who can afford to litigate. If you haven't got the financial ability to sue someone then you're SOL.

If food can be copyrighted (in some future dystopia) might there be another profitable avenue for lawyerly types, complete the cycle, copyright excretion too ;-)

This is similar to the Feist case decided by the US Supreme Court. One telephone directory company sued another, saying that their arrangement of facts (ie, names arranged alphabetically by town) was copyrighted and no one else could publish a phone directory in their area without violating copyright.

The Superme Court basically said you can't copyright facts and threw the case out.

I think where people are getting confused is that the chefs are talking about copyrighting the end result (in other words, the actual dish created). You can't copyright the list of ingredients - the facts - but you can copyright the create the dish.

Thanks for your dead on analysis of this issue Meg!

Much has been said about the rich tradition of borrowing ideas and (copyrightable by the way) work of musicians. Its called folk music. And of course more recently hip hop. These traditions are alive with dipping into the communal pot for shared culture. Less has been written about the deep history of food culture and its reliance on borrowing recipes and ideas. (What if only Mr. Weiner could make hot dogs because it was his "invention?!")

As an attorney myself, and one dealing with copyright licensing on a daily basis, I certainly think the culture would suffer from turning recipes into excludable property. There is always a balance to be struck between protection and freedom. Here it is clear that locking up food ideas for the benefit of one would do real harm to the many.

I forgot to mention, pnwcheese's "parody of a copyrighted soup" made me laugh - I want to see that happen. Why not have a Weird Al of the kitchen?

A lot of this would be easier if I could just patent the idea of a copyright...

"I agree with Meg that bringing copyright into cuisine is very likely to be a very bad idea. But we should understand that absence of copyright today does NOT mean that recipes can be freely copied today. Chefs' community norms prevent that.

A research study on top French chefs that Emm Fauchart and I did recently shown that recipes are protected from copying via community norms regarding what is good behavior. Seems to work acceptably well. Those who egregiously violate the norms get sanctioned - as the case of "Chef Robin," played out on eGullet recently, illustrates.
To download a copy of this paper please go to
To read about the community sanctioning of recipe copying by "Chef Robin" go to

There's nothing new under the sun.

A popular dish in one restaurant will often become popular in a wider circle. That's the nature of ideas in art, culture and life. I'd expect no real exception for food. Creativity feeds off the past and the present. Most artists (and chefs) aren't all that creative, but they will aim to practice their craft and please their audience as best they can, rehashing old and new ideas as freely as any society will accept or condone. Societies will prize creativity at times and refinement and execution at other times. My sense is that cultures move in cycles more than in a true evolutionary path.

Here's what I wrote and posted elsewhere a few weeks ago:

"When I first started eating at the famous restaurants in France, and they were the rather undisputed top restaurants in the western world back then, the differences between meals were less about the creativity and design of the recipes than about the skill and excellence with which the classic recipes codified by Escoffier were executed.

In time, the culinary scene changed and after the worst excesses of Nouvelle Cuisine disappeared, chefs became more known for new signature dishes. Sometimes these dishes became classics and appeared all over France, not to mention Europe and the U.S., and the chefs copying these recipes never worked at the original restaurant for the most part and were never called plagiarists. The Troisgros salmon with sorrel is a prime example. Magret de canard from Daguin is another.

Today, we dine in a culinary world that's undergone another change of significance. More and more, chefs are becoming known for their creativity, than for their recipes. Diners return to a restaurant, especially at the extreme end of this phenomenon, not to taste their favorite dish, but to see what the chef is currently doing. The hippest of globe trotting epicures seems to know what everyone is doing, but as you [Jennifer Leuzzi] state in scenario three, '[t]he locals dub Chef B a genius because they’ve never heard of Chef A much less been across the pond.' Global coverage of the hot shots by even the most middle brow food glossies both enables the spread of these creative dishes and techniques, but it also works against the local chef getting away with being seen as a creator. At the same time, I don't have a problem with a local chef bringing home the latest ideas to a dining clientele that can't afford the time or money to travel so widely, so often."

I'd only add that there's an ethical way for local chefs to deal with bringing other people's ideas to the table and there's a pretentious and dishonest path.

Good Gosh.. lets eat!

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