The Knockoff Economy

by Kal Raustiala

  1. Accomplished chefs expect that other chefs will not copy their recipes exactly.

  2. Accomplished chefs expect that chefs to whom they reveal information will not pass that information on to others without permission.

  3. Accomplished chefs expect that chefs to whom they reveal information will acknowledge them as a source.

  These three norms are fairly simple. The first does not proscribe any and all copying, just copying which is “exact.” As we discuss further, “exactness” in the culinary context is hard to define, and indeed Fauchart and von Hippel note that the boundary between an exact copy and a permissible reinterpretation can be blurry. But it is easy to see a link here to the debate in fashion over point-by-point copies versus mere homage.

  The second norm shaping the behavior of French chefs essentially mimics the law of trade secrecy. The creator can reveal information to whom she likes, but there is an understanding that the receiver of the information will not spread it further without the approval of the creator. Moreover, the economists found that in many instances recipes and techniques were traded with the expectation that the recipient would reciprocate with something useful of her own—an arrangement sometimes dubbed “informal information trading.”43 This I-scratch-your-back, you-scratch-mine system helps promote both innovation and collective learning among the participants.

  The third norm, that of attribution, is sometimes enforced by chefs through public acts against rule breakers: the wronged chef may write a public letter identifying herself as the true creator of the dish, or may simply let others know informally that she, and not someone else, is the originator. Often action by famous chefs is unnecessary since their work is well known and copies that transgress the rules are easily recognized by other chefs. The threat of public exposure is enough in most instances to deter copying.

  Together, Fauchart and von Hippel argue, these three simple norms provide an important bulwark against blatant copying. They deter most uncredited appropriation of signature dishes, and they ensure that at least some of the rewards for innovation go to the putative originators. And while the economists’ study only establishes that these norms operate among French chefs, similar norms may well exist more widely.

  Formal codes of professional ethics within the industry support, or at least are consistent with, these norms. The Code of Ethics of the International Association of Culinary Professionals, for instance, states that a chef should credit a source for a recipe if only minor changes are made. If more major changes are made, one should indicate that the recipe is “based on” or “adapted from” another.44 And whether or not customers have read the Code of Ethics, as the Interlude saga shows, many intuit or appreciate the basic ideas of attribution and inspiration (as opposed to total imitation) and also work to police those norms through food blogs, outlets like Chow-hound, eGullet, and Eater, and word of mouth.

  Legal scholar Christopher Buccafusco has undertaken another study examining the norms of elite American chefs. He concludes that at least some American chefs think much the same way as their Parisian peers—a viewpoint that the pillorying of Robin Wickens amply illustrates. Inspiration and homage are fine, or at least accepted, but attribution is crucial, and blatant and exact copying without attribution is bad. Our own conversations with chefs working on this side of the Atlantic broadly reflected this position as well. But not all chefs agreed that norms existed, or that they governed behavior effectively, or that they were as well defined and widely shared as those among the French chefs.

  Again, social norms grounded in attribution and confidentiality certainly do not block all imitation. But they may provide enough of a check on copying to maintain adequate incentives to continue to create and to dampen any initiative to alter the existing legal rules. As we’ve seen, our culinary culture continues to create many fine and innovative dishes. Something explains the remarkable creativity of contemporary chefs; we suspect that norms play some role.

  There is a broader lesson here. Social norms that operate alongside or in place of legal rules have long attracted interest from scholars. If social norms are powerful enough, they can achieve much the same outcome that legal regulation would—they keep honest people honest, even if they fail to stop the determined violator, and they express the rules of a given community about what is allowed and what is not. Norms can probably achieve this at a lower cost to society than legal rules do, though measuring this is very hard to do.

  Is this the case in the world of cuisine? Since a copyright system for recipes or “built food” is necessarily conjectural—as far we know, no nation has implemented such a system*—we cannot directly compare the relative efficacy or efficiency of norms versus laws. But we do know a little bit about one side of the ledger. Informal discussions with chefs support the view that a legal prohibition on copying would be difficult to create and perhaps ineffective in practice. A 2006 Food & Wine magazine story on copying in the kitchen, for example, quoted Grant Achatz of Alinea restaurant, whose cuisine is often emulated by others (such as by the ill-fated Robin Wickens). Achatz declared flatly that “chefs won’t use [a copyright system.] 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’?”45 Perhaps Achatz is unusual in his views, but our discussions with chefs, and those in other studies, suggest that he is not. Most chefs do not seem to want a legal regime against copying.

  But how effective are social norms at policing copying? A common critique of norm-based approaches to social regulation is that they lack effective enforcement. In Fauchart and von Hippel’s study, enforcement of the norms was largely accomplished via informal retaliation by other chefs. As one interviewee explained, “If another chef copies a recipe exactly we are very furious; we will not talk to this chef anymore, and we won’t communicate information to him in the future.”46 This not merely a loss of reputation, in other words; the sanction is also denial of access to other innovations, and some degree of social shunning to boot. For the very best chefs, who by definition are a small group, this is likely to be an effective strategy. The more a chef sees herself as a member of a profession, with its own standards and mores of behavior, the more likely it is that norms enforced by social sanction and reputational penalty will effectively police her behavior.

  As this suggests, however, there are obvious limitations to norm-based systems of control. Norms are generally thought to become less effective as the size of the relevant group grows. As chefdom rapidly becomes more global—think Britain’s Gordon Ramsay opening a restaurant in Los Angeles, or France’s Joel Robuchon (among many others) in Las Vegas—the group grows larger, social ties grow weaker, and the effectiveness of norms is very likely to decline. Moreover, the tradition of staging in fine kitchens, combined with a more international market for talent, creates significant scope for those tempted to knock off existing dishes—especially when they do so in faraway places where they may not be noticed (at first) or which are distant enough that the pain of social pressure and lost reputation are simply not sufficient to deter them from close copying. Indeed, this may have been Robin Wickens’s story.

  Consider, however, whether far-away copying is a threat to the creative incentives of most chefs. The restaurant business is intensely local. With the exception of a small class of wealthy super-foodies, people rarely travel far simply to eat in a restaurant. They eat near their home, or near wherever they find themselves when traveling. For this reason, a restaurant in Paris is competing mostly with other restaurants in Paris. As a result, the fortunes of a Parisian chef will often be unaffected by copying elsewhere. Indeed, as we discuss further later in this book, the copying may well enhance her reputation, stamping her as a pioneer worthy of imitation—and spurring food fans to seek out the original.

  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 p
rovided 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.

  Analog versus Digital, Product versus Performance

  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.47

  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.”48 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, copy
ing may serve as a signal of quality and a building block of something else that is often valuable: reputation.

  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.49

  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.