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Let Them Eat Cake(If it's in the public domain)

marlissa briggett ’91

cake The next time you go to a restaurant, take a few moments to admire the presentation when your food arrives at the table. As you reach for your fork, here’s a thought to chew on: Whose food is it anyway?

It sounds like a question posed to law students to engage them in some philosophical debate about the nature of copyright or property laws. In fact, it may just become a relevant question.

In Chicago’s Moto Restaurant, Chef Homaru Cantu has created an establishment whose menu evokes a science fiction film. Diners sip soup from syringes. A modified inkjet printer creates edible paper infused with different flavors, from peppermint to filet mignon. With all this innovation, it’s not surprising that Cantu’s edible paper proclaims his ownership and copyright protection over the food that patrons are about to consume. He may be less subtle than most chefs, but Cantu’s efforts to treat his cuisine as intellectual property is an approach that is percolating in the food industry.

Most experts would agree that copyright protection is questionable where it applies to food. Courts have generally held that recipes are not copyrightable. Whether or not Cantu’s dishes and recipes are in fact protected by copyright law, the real question is: Should copyright protection be extended to include recipes and the presentation of food?

BC Law Professor Fred Yen, an expert on copyright law, suggests that carving out an exception for food in copyright law is off-base. He asks, “Why would we want chefs to have copyright protection over their materials? The idea that you have to go to, say, Spago’s if you want a particular chocolate drizzle strikes me as crazy.”

Yen likens chefs to jazz musicians, “In jazz, musicians borrow riffs all the time. Some of it actually is copyrightable but, fortunately, musicians aren’t in the practice of suing one another over this borrowing. Imagine what would happen to the underlying art form if they did.”

Jon Kane ’91 of Fierst Pucci & Kane in Northampton, Massachusetts, represents clients in a wide variety of copyright matters, including literary works, art design, music, television, characters, and video games.

“I have a client with a well-known ice cream business who wants to protect his recipes and the resulting product. I understand his concern about having his products copied by his competitors, but copyright is not the way to prevent that,” Kane says. “Even if a recipe contains sufficient original expression to be eligible for copyright protection, it would become a public document, which obviously defeats the purpose. He really needs protection of his trade secrets, which could be addressed by taking appropriate precautions: requiring employees to sign non-disclosure agreements, for example. That’s how Coke has protected its recipe. Not as a copyright, not as a patent, but as a trade secret.”

Kane worries about the effect of extending copyright law to recipes and food preparation. “I certainly understand a chef’s desire to become renowned for a signature style,” he says. “And finding ways to protect that style may be a fun conundrum for a lawyer to work on. But, personally, I’d rather see food remain in the public domain.” Professor Yen agrees: “From a public policy point of view, once chefs get to sue one another, they’ll all be holding out their checkbooks. How is that helpful? All they do is copy from one another and that’s a good thing. Pretty soon there wouldn’t be anything left but grilled cheese sandwiches.”

On the contrary, says Steven A. Shaw, lawyer and author of Turning the Tables: Restaurants from the Inside Out.

Shaw believes that copyrighting cuisine will lead to an explosion of creativity. The world of cuisine is changing, he says. No longer are chefs judged on their preparation of the classic dishes. Nouvelle and avant-garde cuisine requires innovation and invention.

Shaw points to Ferran Adrià, a Spanish chef. Like Homaru Cantu in Chicago, Adrià approaches cuisine much like a scientist would. He closes his restaurant for six months each year and moves his staff to an off-site laboratory in order to create the next year’s menu.

“He’s investing half of his revenues in research and development,” Shaw says. “Without copyright protection, it’s possible someone can eat a dish at his restaurant and replicate it somewhere else.”

Shaw believes that the history of copyright law is replete with controversy preceding a change in the laws. “Look at software,” he says. “People scoffed when software engineers wanted to copyright software, saying it was just a list of instructions for a computer.”

While copyrighting food may cause some initial confusion, Shaw contends that chefs would quickly figure out how to respect copyright protection in others’ food. “Maybe an organization will form like ASCAP [American Society of Composers, Authors, and Publishers], maybe chefs will receive a small royalty every time another chef creates their dish. They’ll figure it out.

“The American attitude about food is changing. Chefs have a very public profile now and are considered serious professionals. Enough lawyers are going to become chefs that they won’t stand for it,” says Shaw, who himself gave up the law for a career as a food writer.

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