The Knockoff Economy (14 page)

Consider also a principal point illustrated by the Wickens affair: the power of new technologies to enhance the norms-based policing of copying. The existence of the eGullet community provided a communications platform for word of copying to spread and for the community’s norms to be expressed. Communication is vital to the functioning of norms—to be persuasive, norms must be articulated often, and widely, among the relevant community. And there must be a way that accusations of violations can spread—the threat of public exposure is the stick that the norms system
relies upon for its power. Web sites like eGullet bolster norms by making detection more likely, and public shaming more pervasive and (importantly) permanent. The Internet never forgets.

As we will discuss in the next chapter, we see some of the same dynamics at work in the world of stand-up comedians. In comedy as in cuisine, technology can be a powerful tool for originators, one that allows them—or their fans—to discover copyists in far-flung and unusual places. We see more and more detection of copying by fans in the food world. Today, passionate diners routinely post digital photographs of every course in a meal on their blogs, often accompanied by detailed critiques. In this world it is hard for more blatant copies to go unnoticed. This is especially true since the skill involved in recreating many fine dishes is in short supply, and hence these recreations, or derivatives, are most likely to be found in reasonably ambitious and expensive restaurants. It certainly did not take long for the discussion on eGullet to lead to charges of theft and plagiarism—though the conversation revealed significant uncertainty in the culinary community over what was and was not permissible.

In short, social norms are no doubt important checks on certain forms of copying, at least in some contexts and among some communities. But there is little reason to think norms alone explain the continuingly high level of creativity in the culinary world. There is still a substantial amount of copying taking place among chefs; the key question is why this copying does not destroy the incentive to innovate in the first place. An additional constraining force, we believe, lies in the nature of a copy.

American copyright law does not address itself only to perfect or exact copies. Rather, it is illegal to take more than an insubstantial amount of creative expression from a previous work. In copyright argot this rule is referred to as “substantial similarity”—but the word “substantial” has been construed by the courts very expansively. Many copies that ape only a small portion of someone else’s copyrighted work have been declared illegal. In fact, in one case, a federal appeals court held that a song violated copyright law for sampling just
three notes
of another composition.
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In cases like that, where the copying is far from exact, the infringing work is unlikely to serve as any kind of substitute for the original. In other words, the two songs are not really competing in the market. As a result, the case for harm to the originator’s incentives to create is much weaker, overall, than in instances where copying is exact. Digital goods, like songs and movies, lend themselves to essentially perfect copies. For these goods the copy really is the equal of the original for almost any plausible purpose.

In cuisine, almost no version of a given dish is indistinguishable from another. The exact ingredients may vary. Or their quality may change from season to season. The composition may be tweaked subtly, and the execution will surely not be the same each time. Indeed, because in a fine restaurant each dish served is in essence a hand-crafted item, one that is purpose-built for each customer, even versions by the same chef on the same evening will vary. And of course in many high profile restaurants the ostensible chef and creator is not necessarily behind the stove every evening, or even any evening. As noted chef Bobby Flay once quipped, “For a celebrity chef, cooking means handing someone a recipe.”
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Even for noncelebrity chefs, in a kitchen of any size there are many chefs, and often the executive chef is merely supervising the process.

As a result, even in the finest restaurants the original version of a dish is subject to change. Variation is inherent in this system. Food, in short, is more like an analog technology, in which copying is never perfect. Think of an LP copied to a cassette tape—analog copying technologies like these generate copies in which quality degrades in an obvious way. Copies of famous recipes are like cassettes—they can be good, but they are never perfect (though unlike a cassette tape, the copy might be better). This is very different from the case of a digital technology, like an mp3 music file, which can be copied
perfectly.
For this reason, the norm against perfect copying that Fauchart and von Hippel identify among French chefs is, in a sense, enforced by the nature of cooking itself. Because perfect copies are almost impossible in cuisine, their values are also not the same as that of the original. Again, as Laurent Torondel told us, “execution is everything.”

This point may seem obvious, but it is significant because it helps explain the generally forgiving nature of both legal rules and social norms against culinary copying. If ostensible copies are not true copies, are they really competing in the same marketplace? Consumers who buy and eat the “copy” are in many respects enjoying something distinct from the original; perhaps
better, perhaps worse, but certainly different. Those differences can give them something to argue over: whose version of gargouillou is best—Michel Bras’ or one of the many imitators? Differentiation can defang copies, and indeed can even make the copy a form of advertisement for the original: if you love the molten chocolate cake at Local Bistro X, don’t you want to try Jean-George Vongerichten’s signature version? Looked at this way, being copied is a strong signal of success, one that can reinforce a valuable reputation as an innovator.

Moreover, the entire experience associated with consuming a given dish varies tremendously, and from a consumer standpoint the overall experience is what is being purchased. It may be possible to copy a recipe faithfully, but it is very rarely possible to copy the experience of consuming it.

Thomas Keller’s famed Oysters and Pearls, for example, is a great creation. The recipe itself can be reproduced. Yet the experience of eating it at Keller’s famous Yountville, California, restaurant, the French Laundry, cannot be. Those who consume Keller’s version are participating in a larger event, which features exceptional service, a special ambience, and the pleasure of a first-class night out. Together with the expertly prepared food, these hard-to-copy elements of the French Laundry experience lead many diners to desperately call the reservation line months in advance. (And a Keller meal is not cheap: as of April 2012, the prix fixe menu at the French Laundry began at $270 and escalated rapidly from there.) Finding the same dish in a local haunt, no matter how skillfully reproduced, is not a true substitute.

In a way, the same might be said about digital copies: owning a pirated music file is not the same as owning the actual, legal file. With the legal version you get a virus-free file that is what it claims to be. The pirated version may fail or infect your computer. Compared with a digital good like a music download, however, the differences between original and copy that arise for a complex product like a plate of fine food are far greater.

Moreover, the central item created by a chef—food—cannot be easily disentangled from the “packaging” of the restaurant in the way that songs can be separated out and sold, or traded, as discrete digital files. (And the importance of “packaging” is one reason trade dress disputes among restaurants crop up.) At many top restaurants you cannot order home delivery of a meal, or for that matter even order takeout. The dish you crave must be
purchased as part of a larger, multifaceted transaction, replete with various courses, beverages, and side dishes. There are ambience, service, energy, and other intangibles in the mix. All of these factors work together. Copying one aspect—the main dish—may be easy. Copying the experience in full is virtually impossible. The experience is less one of buying a product and more that of enjoying a performance.

Consequently, the mere fact that a recipe is copied does not necessarily threaten the originator. And as we suggested a moment ago, the copy might even serve as an advertisement of sorts, trumpeting the value and specialness of the original. In this way, copying may serve as a signal of quality and a building block of something else that is often valuable: reputation.

There are many reasons for chefs to ignore or even welcome copying of their creations. One is the desire to acquire or maintain a reputation among other chefs for bold and unusual cooking. When a great or particularly inventive dish is pioneered, its creator frequently becomes well known and respected in the community of chefs, restaurateurs, critics, and writers. For many chefs, that acclaim is a powerful inducement to create.

Indeed, in their study of French chefs, Fauchart and von Hippel note that the leading chefs in France will sometimes openly reveal the secrets and methods behind their creations in a public forum. According to their interviews, these chefs expect a number of benefits from disclosure. Among them are that disclosure will increase their personal reputation; generate publicity for their restaurant; inform potential patrons about what is offered in their restaurant; enable them to claim the “innovation space” before another chef gets a related idea; be an enjoyable experience for them; and be an opportunity to promote regional products.
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Whether chefs’ expectations about the positive effects of sharing are likely to pan out in every case is hard to say. But these are certainly plausible rationales for revealing things that could otherwise be kept as secrets, and they help explain the relatively open culture of innovation that exists among many chefs.

Of course, a chef’s reputation can grow even if he or she doesn’t publicly reveal the secrets of a hot new dish. Great dishes get talked about; this means
their creators get talked about too. And because chefs generally hew to a norm of attribution, most everyone who matters will know who the creator is. Identifying creators is a necessary step in the development of reputations for creativity. But even in the absence of a strong attribution norm, a reputation for innovation can develop among peers. It is often easy for insiders to recognize a copied dish, and the originator’s peer reputation may grow even when copyists fail to acknowledge, or try to hide, the provenance of their creations.

Chefs care about their reputation among peers, but they also care about their broader public reputation. In fact, today public renown can be more valuable to a chef than respect from insiders. In recent years leading chefs have increasingly become celebrities; some argue that “being a chef now is like being a rock star.”
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In 2006 the Food Network—an enormously popular channel which on many nights has more viewers than any cable news outlet
⁵¹
—even debuted a show called
Chefography,
devoted to biographies of famous chefs and food personalities.
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Much of this intense interest in chefs is created and sustained by other television shows devoted to cooking, ranging from competition shows such as
Iron Chef
and
Top Chef
to how-to shows such as
Secrets of a Restaurant Chef
and
30 Minute Meals.

Feeding all of this is a mass culture of food appreciation that is increasingly about consumption of creative food rather than cooking. As food writer Michael Pollan has noted, Americans have a waning interest in actually cooking their own meals. “The historical drift of cooking programs—from a genuine interest in producing food yourself to the spectacle of merely consuming it—surely owes a lot to the decline of cooking in our culture.”
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Indeed, the competition-style cooking shows that air on television are far more popular than the how-to cooking shows and, as a result, are much more likely to air in primetime. Consumers of shows like
Top Chef
may not cook much themselves. As avid fans, however, they increasingly are educated about gustatory detail and exotica. Learned connoisseurs of eating are in turn more likely to prize creativity when they go out.

In short, wider public interest in the work of chefs is high, and as a result garnering public as well as peer attention is increasingly valuable to chefs. Attention is the route to fame and riches: a lucrative cookbook contract; reviews from critics; a profile in one of the many food-oriented national magazines.
Most valuably, public attention is the critical entrée to television. To be sure, this brass ring is grasped only by a precious few. But like many markets characterized by winner-take-all dynamics, the existence of this prize is a powerful inducement to innovate. And having one’s creations widely copied is a testament to one’s influence and creative power. This not only helps explain the equanimity with which many chefs greet copying. It also helps explain the otherwise perplexing level of desire to produce highly risky, innovative food, which may not turn out to be all that tasty and, more important, may not sell well.

A
Wall Street Journal
article captured these complex incentives well. After noting the work of daring chefs such as Richard Blais of Atlanta—whose creations include such non-crowd-pleasers as tableside-prepared mustard ice cream and raw-lamb meatballs—the
Journal
opined,

The goal of this edgy fare is not just to shock; these chefs want to create new food that is delicious to eat. But it’s aimed at an audience outside the restaurant, too. The rise of food media—from television’s “Iron Chef” and cooking magazines to a small army of self-styled epicures writing blogs on the Internet—means that a couple of offbeat dishes can win attention that mastery of French culinary technique can’t buy. Restaurants… may flame out, but the chef becomes a celebrity…. It’s no wonder that more young chefs are modeling themselves after stars such as Ferran Adria, the guru of avant-garde cuisine in Spain, and thinking of themselves as artists rather than artisans.
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