Against Fashion Copyrights

Kal Raustiala & Christopher Sprigman have a great piece on the TNR website about what a disaster Chuck Schumer's bill to bring copyright to the world of fashion design would be.

On a loosely related note, if you've been to a bookstore lately at all you'll notice there's a remarkable vibrancy in the cookbook section as the popularity of things like the Food Network, Top Chef, etc., seems to be driving more chef-types into the public consciousness. Cookbooks, of course, can be copyrighted. But the actual recipes they contain can't be. And one suspects that this non-copyrightable nature of the recipes is integral to the cookbook industry's vibrancy. Without it, the bulk of the market would already be locked-down by older cookbooks, and to publish anything new you'd have to be prepared to lawyer up and fight off a thousand lawsuits alleging that your recipes are too derivative.

Comments

I think a recipe would actually be more likely to be covered by a patent than copyright, wouldn't it? Hell, I'm surprised it hasn't been tried. The idiots at the PTO will give you a patent for creative ways to blow your nose these days.

Posted by Glenn | August 14, 2007 9:19 AM

To clarify: Recipes are copyrighted; the list of ingredients aren't. The instructions after the list, however, is protected by copyright.

Clear?

Posted by KathyF | August 14, 2007 9:40 AM

On a somewhat related note, there's been an argument that chess game scores should be copyrighted. The authoritarian thug in charge of FIDE has pushed for this, unless I'm mistaken. Currently, you can re-print any game score, but you can't take analysis.

Posted by Freedom! | August 14, 2007 9:40 AM

The idea of a freeze on fashion innovation is fascinating. May I point out that nuns have been doing this for over a thousand years?

Posted by Duncan Kinder | August 14, 2007 9:50 AM

These are actually contentious topics in the industry. See this excellent story on technique patenting and recipe copyrighting:

http://www.foodandwine.com/articles/new-era-of-the-recipe-burglar

Posted by nicholas | August 14, 2007 9:51 AM

The instructions after the list, however, is protected by copyright.

Yes, the particular way you describe the recipe would be protected by copyright. But isn't the real value of the recipe the chef's discovery of a particular combination of ingredients and the method by which one combines them to produce a particular eating experience? Surely that's not copyrighted.

Posted by Glenn | August 14, 2007 9:53 AM

I think you've struck upon a big loophole in Schumer's bill.

Men's Suit

1 bolt cloth
1 pattern
1 spool thread

Mix as needed

Publish styles as recipes and the man can't touch you.

Posted by joejoejoe | August 14, 2007 9:57 AM

"I think a recipe would actually be more likely to be covered by a patent than copyright, wouldn't it?"

Maybe it's like computer code - you can't patent a program, but you can patent a flowchart.

Posted by Njorl | August 14, 2007 10:19 AM

Man, maybe I'll go to law school with the sole aim of getting myself appointed a judge on recipe copyright cases, in which I will taste recipes and judge whether they are too derivative! This is a strong second to my first-best goal of restaurant reviewer.

Posted by Marshall | August 14, 2007 10:27 AM

I'm surprised no one has made the leap that since lack of copyrights make fashion a more vibrant industry perhaps the lack of them might in fact benefit the diversity and quality of other areas of intellectual development.

Right now the music and movie industries are strongly behind IP protections, but it obviously restricts what's produced. Under the current copyright laws and enforcement levels, a number of currently existing musical genres (Rap and Jungle) may never have come about. In addition, the contents of the wonderful mash-up movie trailers (Brokeback to the Future) are protected and could get their creators sued.

Posted by wins32767 | August 14, 2007 10:30 AM

Without it, the bulk of the market would already be locked-down by older cookbooks, and to publish anything new you'd have to be prepared to lawyer up and fight off a thousand lawsuits alleging that your recipes are too derivative.

Essentially, this is alleging that courts and copyright holders cannot be expected to act in good faith, and that the only possible alternative to the present system is a nightmarish and financially draining legal morass.

I have to say, it seems far from obvious that such a conclusion proceeds logically from the premise. There's a difference between someone who fatuously tries to claim intellectual ownership of, say, basic tomato-basil-and-garlic red sauce, and someone who copies an original recipe from the latest Gourmet, rewrites the copy without materially changing the steps, and reprints it or posts it online as his own work. Suggesting that any attempt to differentiate between the two will automatically send our legal system into vapor lock seems enormously disingenuous to me.

Some kind of basic IP structure needs to be in place that protects the rights of small-scale creators, or such creators are likely to stop producing content that requires long-term or large-scale committment.

Posted by James Gary | August 14, 2007 10:40 AM

Some kind of basic IP structure needs to be in place that protects the rights of small-scale creators, or such creators are likely to stop producing content that requires long-term or large-scale commitment.

Recipes require long-term or large-scale commitment?

Posted by alkali | August 14, 2007 10:45 AM

Re: Kathy F's comment that instructions in recipes are copyrighted, that ain't right. To the extent instructions simply describe processes for preparing the dish, they are not copyrighted under U.S. law, which specifically denies copyright to processes. The only thing in a recipe instruction that typically would be copyrighted is some interesting creative choice in the expression of how to perform a process, or perhaps some digression that does not involve the actual preparation of a dish. The upshot is, everything that one would need to copy, in order to copy and offer the recipe, is currently *unprotected* by copyright. And this does not seem to have resulted in any shortage of recipes. I dare anyone to tell me that we are living in a cookbook drought.

Posted by anon | August 14, 2007 10:54 AM

Under the current copyright laws and enforcement levels, a number of currently existing musical genres (Rap and Jungle) may never have come about. In addition, the contents of the wonderful mash-up movie trailers (Brokeback to the Future) are protected and could get their creators sued.

A case can be made that copyright enforcement may have been too aggressive in the past. I personally think the concepts of "fair use" and "parody" apply more widely than the courts have seemed to allow. But I don't think artists should be allowed to sample others' work indiscriminately, either.

If the creator of "Brokeback To The Future" can't work out something with the copyright-holders, it doesn't seem a given that the work has some kind of inherent right to public distribution.

Posted by James Gary | August 14, 2007 10:54 AM

After dealing with fashion, Schumer should try to revive the Catskills by enforcing copyright on jokes.

NY State tax revenue windfall would be enormous.

Of course, if joke copyrights were enforced, some comedians (looking at you, Carlos Mencia) would be out of work.

Regarding recipes, if lists of ingredients could be copyrighted, I am sending all my shopping lists to the Library of Congress and I will own your ass!

Posted by blatherskite | August 14, 2007 10:57 AM

If the creator of "Brokeback To The Future" can't work out something with the copyright-holders, it doesn't seem a given that the work has some kind of inherent right to public distribution.

And therein lies one of the great fundamental errors in understanding the nature of copyright. Copyright exists for the benefit of the public, i.e., to encourage the creation and dissemination of works of art. Whether its creator has an "inherent right" to produce it is largely beside the point.

Posted by Glenn | August 14, 2007 11:04 AM

Recipes require long-term or large-scale commitment?

Say you grow up loving to cook, you spend a couple years at culinary school, you put your time in restaurants working up the ladder under tyrannical boss-chefs, and after several years and some luck you finally open your own place. Having your own restaurant, you apply your accumulated cooking knowledge for weeks or months developing the menu, the dishes of which you constantly tinker and adjust, and then after several touch-and-go years, you might feel qualified to write a cookbook.

Or, if you like, you can speed up the process and just steal someone else's recipes. Information wants to be free, right?

Posted by James Gary | August 14, 2007 11:08 AM

Whether its creator has an "inherent right" to produce it is largely beside the point.

Whether its creator has an inherent right to distribute it, however, is the entire point here.

I have nothing against someone making "Brokeback to the Future" for his personal enjoyment and that of his friends (and nothing against some hypothetical fashion student sewing her own "Chanel" suit.) Once such stuff is available to the general public, however, it's a different story.

Posted by James Gary | August 14, 2007 11:14 AM

Whether its creator has an inherent right to distribute it, however, is the entire point here.

I have nothing against someone making "Brokeback to the Future" for his personal enjoyment and that of his friends

Um, making something for his friends is "distributing" it.

Posted by Dan the Man | August 14, 2007 11:19 AM

James, let me try again. The point of copyright is to encourage the creation and, yes, distribution of new works of creativity to the public. An overly restrictive view of copyright that would prevent "Brokeback to the Future" from being widely seen would harm the public, and that's the problem with it. It's not that the "Brokeback to the Future" creator's rights have been stifled, even though they may have been.

Posted by Glenn | August 14, 2007 11:30 AM

and then after several touch-and-go years, you might feel qualified to write a cookbook.

You don't have to write a cookbook, or at least one that gives away your secrets. Besides, being a great cook isn't really about creating recipes. Recipes are over-rated.

Ultimately, respect has to be paid to tradition, which has always allowed a certain amount of "borrowing." Schumer is butting his nose into this tradition.

Posted by Freedom! | August 14, 2007 12:08 PM

An overly restrictive view of copyright that would prevent "Brokeback to the Future" from being widely seen would harm the public, and that's the problem with it.

How exactly is the public harmed by not being able to see "Brokeback To The Future?" Is free access to works of art (or YouTube videos) a public entitlement? If I can't afford admission to "The Simpsons Movie," should I therefore be entitled to download a pirated copy?

I think I will bow out here--I feel this is heading towards a polite Argument Clinic. To be honest, "Brokeback To The Future" seems a poor illustration of the point, since it seems to me to qualify as both parody and "fair use." I stand by my original assertion, which is that content creators do need some kind of real legal protection against piracy or near-piracy.

Posted by James Gary | August 14, 2007 12:23 PM

Copyright and IP in general have been so abused that I think they should be ignored. The Sonny Bono extension to copyright, software patents, patents on genes ... ridiculous. Beyond ridiculous. Sure, copyright style. Put ripped jeans, ambergris, and the little black shift into the cloister of monopoly.

I think it's safe to say that there are people walking around drawing big paychecks who are a danger to themselves and others.

Posted by Jeffrey Davis | August 14, 2007 12:44 PM

Glenn, the method in which one combines the ingredients can be a huge part of the recipe. I read today about someone who made cucumber soup without first peeling and grating the cucumbers, placing them in the food processor whole instead. It was a disaster.

As for the instructions not being copyrighted, to quote from the .gov website on copyright: "However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a combination of recipes, as in a cookbook, there may be a basis for copyright protection."

Unfortunately a lot of bloggers don't know this.

Posted by KathyF | August 14, 2007 1:08 PM

I think I will bow out here--I feel this is heading towards a polite Argument Clinic. ... I stand by my original assertion, which is that content creators do need some kind of real legal protection against piracy or near-piracy.

Oh no, this is Abuse!

Just as my parting shot: We are in full agreement that content creators need some legal protection. My only point was that, in your original comment, you seemed to only be balancing the right of the content creators against the right of the parodist/pirate and found no rights in the latter. But it is the public interest that must be paramount, that is the very reason copyright exists in the first place (not to protect the rights of creators).

And is the public good served by the availability of things like "Brokeback to the Future"? Absolutely! It has nothing to do with the public having free access to it. It's the addition of the work to the marketplace of intellectual goods that is the public benefit.

Posted by Glenn | August 14, 2007 1:15 PM

"However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a combination of recipes, as in a cookbook, there may be a basis for copyright protection."

Right. But let's look at that. The second, cookbook example is talking about the fact that the creativity in choosing particular recipes to put in a book is protectible -- a compilation copyright. But it's not talking about the underlying recipes themselves.

As for the first element mentioned, it is the "substantial literary expression" that is copyrighted. Again, what's being protected is not what (I think) most people think of as the "recipe" -- i.e., the method of selecting and combining the ingredients.

Put another way: If I find a great published recipe for, say, Deep Fried Oreos, and I rewrite the recipe using sufficiently different language (i.e., literary expression) then even though I will have conveyed the exact same "recipe" I will not have violated the original author's copyright. Least, that's how I understand it.

Posted by Glenn | August 14, 2007 1:38 PM

Put another way: If I find a great published recipe for, say, Deep Fried Oreos, and I rewrite the recipe using sufficiently different language (i.e., literary expression) then even though I will have conveyed the exact same "recipe" I will not have violated the original author's copyright. Least, that's how I understand it

What if we found notes proving that you intended to take someone else's recipes and text and change it just enough so it didn't look like you were doing so?

In other words, how much of this is related to the difficulty of *proving* the theft?

Posted by Freedom! | August 14, 2007 4:18 PM

In the case of a process like a recipe, you can copyright the expression of the process, but not the process itself.

It doesn't matter if you had conclusive video evidence of Glenn sitting in the drawing room at the top of his storm-shadowed tower, chortling madly about how he was going to change the written recipe just enough that it would be legal.

The expression is protected. The process is not.

It isn't that hard to understand, really. Remember what you were told about plagiarism and facts back in high school? How you were allowed to use facts from other people's writing, but you couldn't just cut and paste the sentence? Same principle. The facts weren't protected. You could appropriate those. But you couldn't appropriate the sentence itself which expressed those facts, because that was the creative output of someone other than you.

Posted by Patrick | August 14, 2007 4:51 PM

I'm surprised no one has made the leap that since lack of copyrights make fashion a more vibrant industry perhaps the lack of them might in fact benefit the diversity and quality of other areas of intellectual development.

Having taken some of Sprigman's courses, I can say that this is very much the vein in which he has studied the fashion business. Certainly he wouldn't claim that all IP works the way that fashion does, but that you can start to identify the factors that make fashion work despite the lack of IP protection and find other areas that are currently under copyright or patent that have similar characteristics. It's a good start at challenging some of the assumptions behind IP law that tend to go unquestioned too often.

He's a wonderful professor, BTW...

Posted by JB | August 14, 2007 6:16 PM

It has never been established that the premise that any form of "intellectual property" has improved the rate of invention in the human species is at all true.

Therefore the argument that intellectual property is necessary is null and void.

"Intellectual property" is an oxymoron. The only exception are "secrets" - things I know that you don't. Once I reveal them to you, they are no longer "my property" except in regard to anyone else who does not know them.

The concept of IP is inherently coercive. It's premise is that I have a right to and can control your behavior by the mere action of trading you a product. This elevates the principle of contract over the principle of property - which is precisely what the principle of property is intended to prevent. If you do not control your behavior and your property, you control nothing and are not free.

It's simply a restatement of the thoroughly unproven notion that the state is superior to "rational anarchy." In fact, the history of the human race is proof of the opposite.

The sole purpose of IP is to control other people for the benefit of the IP "owner."

Period.

Posted by Richard Steven Hack | August 14, 2007 10:15 PM

If the recipes are that important to you as a Great Chef, then keep them as Trade Secrets.

Sheesh.

Posted by tzs | August 15, 2007 11:39 AM

U.S. Copyright Office:

[...] Mere listings of ingredients as in recipes, formulas, compounds or prescriptions are not subject to copyright protection. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a combination of recipes, as in a cookbook, there may be a basis for copyright protection.

Protection under the copyright law (title 17 of the United States Code, section 102) extends only to “original works of authorship” that are fixed in a tangible form (a copy). “Original” means merely that the author produced the work by his own intellectual effort, as distinguished from copying an existing work. Copyright protection may extend to a description, explanation, or illustration, assuming that the requirements of the copyright law are met.

HTH.

Posted by Gary Farber | August 15, 2007 7:15 PM

Whoops, missed that that was basically covered; sorry.

Posted by Gary Farber | August 15, 2007 7:23 PM