A transient Manhattanite usually has a certain amount of pretension that must be indulged. We’ve moved to the City because we identify, or at least aspire to identify, with a population at the vanguard of savviness and style, or at least conspicuous consumption. Unfortunately, for some of us, our Manhattan pilgrimage involved quitting our jobs to become law students banished to a lifestyle sans bi-weekly paychecks and rapidly eroding credit card availability. How now can we satiate our innate urges for the trappings of affluence when we lack the means to enjoy it? Cue Foodie Culture.
The Foodie Culture conversation ranges from poetic musings regarding the roots (no pun intended) of a particular ingredient, perhaps its region or even farm of origin, to discussions of exciting new chefs, restaurants, and cooking methods, from greedily viewed “food porn” found at foodgawkeri or Tastespottingii to a deep-rooted affinity for the Shake Shack Shack Stack. Most importantly, anyone can be a foodie, regardless of personal resources;iii an interest in boiled cabbage or tuna casserole is as sufficient of a ticket as a penchant for white truffles and grape-specific wine glasses. For the law student, an interest in food can in turn satisfy his interests in, amongst other things, aesthetics (e.g. foodporn), trends (e.g. molecular gastronomy, haute greenmarket cuisine), creativity, and even exclusivity (like the impossible reservation at Mario Batali’s Babbo).
While its ranks have been fattened, Foodie Culture was dealt a major blow this past October with the demise of Gourmetmagazine, considered by some to be the “grande dame of food periodicals,”iv published by Condé Nast, “the high church of glossy magazine publishers,”v and renowned for its “gorgeous editorial products”vi and “panoramic view of epicurean sensibility.”vii Despite a subscription base of 900,000,viii Gourmet couldn’t survive the recession-spurred precipitous decline in advertisement revenue.
Many claim that while the current economic malaise may have been Gourmet’s final artery-clogging spoonful, its demise is really the result of myriad competition from the internet, the thief of the print audience.ix Food bloggers have been especially blamed because they’re viewed as more accessible than grandiose publications like Gourmet; they can cater to any taste, dietary requirements, or localityx without the traditional limits of print content, such as advertisement concerns or recipe modifications and substitutions.xi Bloggers, for the most part, have done nothing illegal and, importantly, they’re statutorily authorized to lift Gourmet’s recipes directly from its pages without any legal consequence;xii the 1976 Copyright Act explicitly states that recipes are not copyrightable.xiii This copyright aberration begs the question of why do other original works of authorship receive protection,xiv but not recipes? Can food publications survive without creating and protecting an ownership interest in the recipes they create?
The general doctrine of copyright law is to deny copyright protection to items of practical utility, such as apparel and furniture,xv because while originality may exist, functional considerations ultimately dictate their form.xvi Except in a very limited sense,xvii recipes also fall into this category, described as intellectual property’s “Negative Space,”xviii a large area of creativity where copyright and patent protection don’t penetrate.”xix
Despite banishment to this vulnerable space, food, like fashion and furniture design, has a history of innovation, some of which can be attributed to Gourmet magazine. In fact, it is this lack of intellectual property protection that is the driving force behind innovation in these industries. As a derivative work,xx where each innovation is built from the innovation of a previous chef, this lack of an enforceable property interest enables both chefs — and food publications — to improve and interpret recipes without fear of copyright infringement. Ground beef becomes stew, which becomes shepherd’s pie, which then becomes sheperd’s pie deconstructed. Perhaps the food bloggers’ cavalier appropriation of Gourmet’s work product gave the former an impossible advantage, but if you traced Gourmet’s recipes far enough back (and likely not very far), one would likely find that this grande dame is guilty of the same acts. While no one, especially foodies, likes to see beautiful food publications fold, the digitization of recipes, which enables us to browse a world of recipes and food photos, which are often more accessible then perfect print productions, is an impossible foe for traditional print.
iii Nicole Weston, What is a Foodie, Anyway?, http://www.slashfood.com/2006/02/10/what-is-a-foodie-anyway.
iv Belinda Luscombe, Gourmet Magazine Heads to the Meat Grinder, Oct. 6, 2009, http://www.time.com/time/business/article/0,8599,1928274,00.html.
v Nat Ives, Chairman’s focus on glossies cost Gourmet dearly, Oct. 12, 2009, http://www.crainsnewyork.com/article/20091012/free/910129997.
vii Luscombe, supra note 4.
ix Susan Currie Sivek, Did the Web Kill Gourmet Magazien?, Oct. 26, 2009, http://www.pbs.org/mediashift/2009/10/did-the-web-kill-gourmet-magazine299.html.
xii Christopher J. Buccafusco, On the Legal Consequences of Sauces: Should Thomas Keller’s Recipes be Per Se Copyrightable?, 24 Cardozo Arts & Ent. L.J. 1121, 1124-25 (2007). See 1976 Copyright Act, 17 U.S.C. § 102(b).
xiii Id. “Facts of ingredients and their combination in cooking recipes are underlying ideas and are not subject matter of copyright apart from compilation in which they appear.”
xiv 17 U.S.C. § 102(a).
xv Kal Raustiala & Christopher Sprigman, The Piracy Paradox: Innovation & Intellectual Property in Fashion Design, 92 Va. L. Rev. 1688, 1699 (2006).
xvi Buccafusco supra note 12, at 1130.
xvii Raustiala, supra note 15, at 1769.
xviii Id. at 1764.
xx Id. 1767.