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.