New Era of the Recipe Burglar
I want to be there on New Year’s Eve when they seal the 2006 time capsule, because I’ ve found a restaurant dish that will tell future earthlings everything they need to know about what happened to food this year. It comes from Chicago—finally, improbably, the most talked-about dining destination in America. It’s the creation of Homaro Cantu of Moto restaurant, one of a handful of avant-garde chefs who believe they are leading cuisine into the future, and it looks like something Rosie the robot might whip up for snack time at the Jetsons’ . It’s an image of cheerful pink cotton candy printed on a tiny sheet of edible paper that tastes like cotton candy. The paper measures roughly two-by-2.75-by-zero inches, so it won’t take up much space in the time capsule, and, as far as I can tell, it won’t suffer at all from rot or mold over the next hundred years. But none of this explains why this morsel ought to be preserved for future generations. The truly historic feature of Cantu’s two-dimensional treat is the legal notice printed beneath the cotton-candy image:
Confidential Property of and © H. Cantu. Patent
Pending. No further use or disclosure is permitted
without prior approval of H. Cantu.
Consider your typical transaction as a restaurant patron. You choose something from the menu, it’s brought to your table, you eat it, and, if it was prepared adequately, you pay for it. Under those circumstances, you’ d probably say that you had bought the food. But here is a chef claiming that he still owns the food you’ re swallowing. This is something new. Inarguably, Cantu’s gonzo innovations place him among the shock troops of American cuisine, but it’s possible that a more significant legacy will be his efforts to own the ideas that are born in his kitchen. He has already filed 12 applications for patents, including one detailing the process for making cotton-candy paper, and says there are more to come.
For all his originality, Cantu is not the only one who thinks that the ideas born in a restaurant should belong to the chef. There are at least two ways to claim legal protection for intellectual property. One is Cantu’s route, through patents, but another, copyrighting a dish, could have much more far-reaching effects on the culinary world. Chefs have traditionally worked on an open-source model, freely borrowing and expanding on each other’s ideas and, yes, sometimes even stealing them outright. But some influential people are now talking about changing the copyright law so that chefs own their recipes the same way composers own their songs. Under this plan, anyone who wanted to borrow someone else’s recipe would have to pay a licensing fee.
Would this lead to greater respect for chefs as the "authors" of their cuisine or would it clamp down on the free exchange of ideas? Would they be set free to invent at will, or would the fear of lawsuits cause them to stick to tried-and-true formulas? If intellectual property notions take root in the culinary sphere, the implications for those of us who enjoy restaurants will be enormous.
That’s why I’ d like to nominate the cotton-candy paper for the 2006 time capsule. If chefs in the future call their lawyers every time they change their menus, we’ ll be able to look back on this two-dimensional treat and say, "This is where it all began."
For some time after I first read it, I scratched my head over the little prose poem that begins "Confidential Property of and © H. Cantu," trying to figure out what it meant and why Homaro Cantu wanted people to eat his words, literally. Unfortunately, the words themselves, which seem to have been pulled from one of those endless legal notices that pop up when you install a new Microsoft product, didn’t do much to clear up the confusion. Finally, I got Cantu on the phone and asked him why he printed that boilerplate right on his food.
"Because my lawyer’s really paranoid," he said.
Cantu may talk to his lawyer more often than John Gotti, Jr., does. Together they have filed patent applications for a fork that adds flavor to food and a polymer box with walls that, once heated, retains enough energy to cook a fish filet. Application number 20060081619, "System and methods for preparing substitute food items," describes the process for making cotton-candy paper. The application notes that edible paper has certain advantages over ordinary food: "Food items are typically prepared through the application of one or more food preparation techniques or cooking processes to one or more food components including slicing, peeling, grating, mashing, aging, fermentation, cooling, freezing, warming, steaming, boiling, roasting, sautéing, frying, grilling, barbecuing, or broiling. While a consumer may wish to ingest the food item, the consumer may be unable to do so because the consumer does not have the necessary food components or the time, means or skill to apply the necessary techniques to prepare the food item." In other words, if people can’t shop or cook, let them eat paper.
Getting a patent can take years and many thousands of dollars, mostly in legal bills, but the owner of Moto is bankrolling Cantu in exchange for a stake in the inventions. His hope is that big food companies will be willing to pay to license some of these ideas. Cantu says he has been approached by "dozens of food companies" as well as NASA’s Institute for Advanced Concepts. The space agency is interested in the technology "as a way of printing an apple that you can hold in your hand and take to Mars," Cantu says. "We have a machine that lets you push a button and out comes a picture of an apple. What we don’t know how to do yet is make it three-dimensional—how do we make an apple?" Cantu has contacted the American Red Cross about using edible paper as a lightweight form of famine relief; he is tinkering with his invention so he can "print" paper with amino acids, complex carbohydrates, vitamins, minerals and even medicine. If he succeeds, relief agencies might be able to airlift a strip of paper instead of bulkier and heavier foods like MREs or bags of rice. The paper could even be printed with instructions in any language saying, in effect, EAT THIS AND YOU WON’T STARVE.
Clearly, Cantu’s imagination revs high, and some Moto diners have suggested that they feel like guinea pigs for his patent-creating factory. But he sees things differently. In Cantu’s view, licensing his intellectual property is a more efficient way to tap new revenue streams than opening a casual Moto brasserie across the street. "That would take up all my time and I couldn’t think about food—I’ d just be thinking about what color chairs we were going to have," he says. "I guarantee you that going this route can be as or more profitable than doing a restaurant empire."
This was an argument I could get behind. I like chefs. I want them to make money. But it bothers me that the easiest way for them to pad their incomes is by branding, expanding, franchising and striking deals with casino kingpins. I’ d be happier if they could get rich staying in one place where they’ d devote their attention to coming up with new things for me to eat. Cantu may have found a way out of this dilemma—chefs can sell their ideas instead of selling out. The world would reward them for thinking, not for running high-end chains.
Soon, though, I spotted some flaws in that model. To start, I wasn’t sure anybody but Cantu could turn a profit that way. Patents go out only to people who come up with a genuinely new device, method, process or substance. Cantu is a leader of the culinary avant-garde, but that’s just a small sliver of the fine-dining scene, which is itself a sliver of the restaurant industry. The average kitchen generally doesn’t see great technological leaps forward; it’s outfitted with equipment that, with the exception of a few advances like the food processor, hasn’t changed much since Escoffier’s day. Most chefs aren’t trying to layer edible substrates on paper or build transparent heat-retaining ovens; they’ re too busy dealing with the table for eight that walked in unannounced 30 minutes ago. It’s hard to imagine what use they would have for patents.
And then there’s the suspicious atmosphere that a think-tank kitchen would have to adopt. When you rely on your intellectual property for income, you suddenly become Bill Gates, building walls around your inventions to keep thieves away. Cantu requires almost everyone who enters his kitchen to sign a four-page nondisclosure agreement. He says he runs background checks on some potential cooks to make sure they’ re culinary school graduates and not corporate spies, and he uses caller ID just in case that party of two looking for a table next Thursday night is phoning from Burger King headquarters. Cantu says his closed-door policy mainly applies to big business. He’s generally happy to talk techniques with fellow chefs. Sometimes, though, even they can’t be trusted.
Last winter, the chef at a Melbourne restaurant called Interlude began serving food so complex and imaginative that few people in Australia—or anywhere else, for that matter—had seen anything like it. Pureed prawns had been bound with transglutaminase and extruded through a steel die to make spaghetti. Yogurt tasted like bacon, the result of spending time in a smoker. Pickled cucumber and pressed, dehydrated mango were wound together in a pale-green and orange spiral. One of the most elaborate dishes was the poached squab. Thin slices were served in little indentations on top of a glass tube, and inside the tube were two sticks of burning cinnamon that sent curls of spicy smoke into the air. Interlude’s chef, Robin Wickens, had been named one of the country’s best young chefs by an Australian magazine, but these dishes were unlike his previous inventions. The reason, it would soon emerge, is that these were not his inventions at all. Wickens had copied the dishes and a dozen or so others from a number of American restaurants.
Wickens hadn’t just lifted the recipes; he’ d copied the way they looked, down to the highly unusual service ware. The glass tube, for instance, is sold by Crate & Barrel as a votive-candle holder, which is presumably how Crate & Barrel customers used it until Grant Achatz bought some as presentation pieces for Alinea, his restaurant in Chicago. Wickens had a chance to study Achatz’s dishes during the summer of 2005 when he volunteered at Alinea for a week, making notes and taking pictures, before returning home to overhaul the menu at Interlude. Wickens re-created the Alinea dishes so precisely, in fact, that in photos, the originals and the imitations are virtually indistinguishable. "He copied them so well I was almost impressed," Achatz says.
The charge of plagiarism was first raised on the Web site eGullet in March. Three weeks later, eGullet reported on a second copycat chef, this one in Japan. The Tapas Molecular Bar inside the Mandarin Oriental hotel in Tokyo was offering a tasting menu that appeared identical to one originally served at a Washington, DC, restaurant called Minibar, run by avant-garde chef José Andrés. Once again, the chef who seemed to have stolen the dishes—at least 15 of them—had worked at the restaurant where they were invented.
The eGullet discussion revolved around different ways of describing this copying. One was plagiarism—presenting someone else’s ideas as your own. This is an ethical infraction, not a legal one. Newspapers fire plagiarists; until now, the worst thing a chef might suffer was a snide put-down. The second was copyright infringement. On the surface, this made even less sense than calling a chef a plagiarist. Copyright law protects "original works of authorship fixed in any tangible medium of expression." Achatz’s dishes are original and tangible, so they ought to be eligible for copyright, but the law specifically excludes ingredient lists and recipes. A cookbook can be copyrighted—but as a literary work, not a culinary one. Fergus Henderson could sue me if I nabbed his fetching description of roasted marrowbones from The Whole Beast, but if I opened a marrow-themed restaurant and served his recipes every night, he’ d be powerless to stop me.
When Steven Shaw, eGullet’s cofounder, first weighed in on the site’s discussions, he felt the best way to deal with food forgery was through public shaming: Put the evidence out there and let copycats feel the heat. After a few days or so, though, he had a change of heart. Shaw, a reformed lawyer, learned in law school that recipes can’t be copyrighted. "Then one day I was sitting there," he says, "and I thought, Why not? It doesn’t make any sense. The assumption is that a list of ingredients is like a formula, as opposed to literature or art or craft. But I think serious recipes really are a form of literary craftsmanship. You can copyright the world’s worst photograph, but you can’t copyright a recipe, or its expression as food? That’s absurd!"
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. He doesn’t want to do this work himself, but he’s got someone in mind who’s smart, rich and powerful enough to get the job done: Nathan Myhrvold, the former Microsoft executive and amateur chef who is now a kind of intellectual-property entrepreneur, registering new patents and buying up existing ones at an aggressive pace.
Copyrighting recipes may be the most radical idea to hit the food world since the invention of the menu. Such a system would apply to all chefs, not just those in the avant-garde; to qualify for a copyright, a dish would have to be original, but it wouldn’t have to redefine the very notion of food. 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. Chefs would operate like Andy Warhol, getting rich off ideas executed by others. "Something would be lost," Shaw concedes. "You won’t be experiencing the handiwork of a great chef. But that’s mostly a fantasy these days anyway. I’ ve been to Jean Georges dozens of times and I’m pretty sure Jean-Georges Vongerichten has never cooked a bite of my food. So I have no problem with him going into research mode."
As a writer, I rely on copyright law for much of my income, so I’m already sympathetic to Shaw’s argument. People who sweat over new ideas deserve compensation. And there’s a sense in which rewriting the copyright code to include food seems like the ultimate acknowledgment that chefs have arrived. Once they were seen as tradesmen, like carpenters and plumbers. Now we treat them as creative artists—shouldn’t the law see them that way too?
The trouble, as even Shaw will admit, is that many chefs don’t like the idea. Even Grant Achatz, who says that the Interlude Web site showed 17 dishes he invented, is against a copyright system for food. "Chefs won’t use it," Achatz says. "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’ ?"
Even if chefs did support the system, it’s not clear they would benefit from it. Shaw compares chefs to musicians, who have generally profited from the copyright law. My fear, though, is that they are more like newspaper reporters, who typically surrender ownership of their work. If a reporter writes a story on the company’s clock, that story belongs to The Man. 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? Restaurateurs would stockpile the rights to scads of recipes with the hope that one of them will turn out to be the next molten chocolate cake. Only chef-owners would retain their rights, and chef-owners are already the elite of their profession.
Since I started writing this, my two-dimensional cotton candy has suffered the ravages of time. More precisely, it’s suffered the ravages of my two-year-old, who grabbed it off my desk, crumpled it in his hand and ran gleefully around the apartment in a one-sided game of tag. The legal disclaimer is still legible, but the image of the cotton candy has a few holes in it. The paper’s no longer suitable for a time capsule, sadly, so I’ ll just have to eat it.
Pete Wells is a contributing editor to F&W. E-mail comments to him at firstname.lastname@example.org.