This video is sponsored by Squarespace, and it is adapted from remarks that I gave recently
at an event hosted by the United States Copyright Office.
Yes, it's kind of funny that the Copyright Office invited me to give a talk, considering
that my whole thing is cooking on the internet, and recipes are absolutely not covered by
copyright.
Don't take my word for it — here it is, straight from the U.S. government, and international
copyright law is basically the same deal.
The videos and the pictures and potentially the words you use to express your recipe,
well, those are covered by copyright, but not the recipe formulation itself.
I have a whole video about the legalities of recipe ownership.
It's in the description.
Today, we're going beyond law, because unless you're talking about some kind of really hardcore
like industrial food process that you could patent, it's really unlikely that recipes
are going to be protected by any kind of intellectual property law — not just copyright, but any
of them.
This comes up in the news from time to time.
Life Raft Treats here is the business owned by a very celebrated American pastry chef
named Cynthia Wong.
She makes these like trompe l'oeil ice cream treats that unnervingly resemble things that
are not ice cream.
That fried chicken is actually ice cream.
Pretty awesome.
Those are chef Wong's signature creations, and she used to make them at a restaurant
where she worked called Butcher & Bee.
It's in Charleston, South Carolina.
A few years back, she decided to leave that restaurant and go out on her own.
And as reported by eater.com, there ensued a public fight about who gets to keep making
the ice cream fried chicken — Butcher & Bee, her old restaurant, which is still there,
or her new business, Life Raft.
Another recent example, as reported here in the Los Angeles Times, pertains to an L.A.
restaurant called Sqirl.
The owner there published a cookbook of recipes from the restaurant, including a crab dish
that former Sqirl chef Ria Dolly Barbosa says she developed.
The restaurant owner did not credit Chef Barbosa in the pages of the book, let alone offer
her a cut of the profits.
I'm not a lawyer, but I've talked to a lot of lawyers about this topic.
And the legal question is pretty cut and dry.
If you're working for somebody else, they own your work product — unless other arrangements
or agreements have been made.
But the legal question is totally different from the ethical question.
Is it a &$^% move to sell someone else's recipe?
And "sell" in this context could mean anything from selling the food in a restaurant to demonstrating
the recipe in a YouTube video and making money from ads in said video.
This is an ethical quandary I wrestle with nonstop, and I'm going to walk you through
my own thinking on the subject.
Ethically speaking, who owns a recipe?
What can I take from it?
To whom do I give credit?
What is credit?
Is it acknowledgement, or money, or both?
My basic workflow for developing a recipe for my channel usually begins with me scouring
the internet and reading dozens and dozens and dozens of recipes for a thing that I want
to cook.
I jot down what look like good ideas to me.
I synthesize several from many sources into a single draft recipe, combined with novel
ideas of my own.
And then I start trying it out in the kitchen.
I tweak things.
I usually try to simplify the ingredients or the quantities or the workflow.
And obviously, I adjust things to my own taste.
At the end of all that, I have a recipe.
And some recipes I've done are more novel than others.
Do I owe attribution to all of those dozens of recipe writers whose work I consulted in
developing my own recipe?
I don't know.
Well, just imagine if you baked a cake and then you brought it into the office and everybody
is just blown away by this cake.
They're like, "Oh my gosh, you are a genius.
Where did you get this recipe?"
And then you say, "Oh, it's just something I came up with at home," except you were lying
and you actually got it from Emmy Cho.
If you did that, personally, yeah, I would think that was a &#%$ move on your part.
But then for someone like me, the stakes are even higher because I'm not just somebody
who's like cooking to wow my office mates.
I cook for a living in here.
Millions of people watch it.
So if I were to take 90% of a recipe from Emmy Cho and not give her credit, then I would
think that was a major &#%$ move on my part.
Not cool.
There's a very similar quandary I used to deal with all the time in my prior life as
a news reporter.
One cannot copyright a fact.
You can claim copyright on the words and the sounds and the pictures with which you express
those facts.
But in journalism, those are merely derivatives of the underlying asset, which is the fact
you are reporting.
And that asset is owned by no one.
Nobody owns the truth.
Can you report a fact that was uncovered by somebody else?
Well, legally, sure.
Like in this very video, I could have started this whole thing off by just saying, "Hey,
there's this chef named Cynthia Wong, and she came up with this crazy ice cream fried
chicken situation, and then there was a dispute between her and her old restaurant about who
would get to make that recipe."
Legally, I didn't have to tell you that I learned about all of that from eater.com.
They don't own the facts.
Vox Media, the publisher of Eater, owns this article, and they own this website.
I'm using images of this website in my own video right now in accordance with the fair
use doctrine.
I'm using the copyrighted website in an editorial context for the purposes of discussing the
website.
And I'm only showing a minimal amount of it in my video that is unlikely to siphon any
traffic away from Eater.
So it's fair use, even though Vox owns this website — but they do not own the facts
discussed therein.
Still, I felt an ethical obligation to credit them nonetheless.
Moreover, in journalism, you could argue that the ethical quandary is obviated by the epistemological
quandary.
When you're a straight news reporter — that is a reporter who only reports facts, not
suspicions, not opinions, you only report facts — when you do that for a living, you're
only supposed to report things you know to be true.
I don't know that Cynthia Wong had a spat with her old employer.
I only know that eater.com says they did.
So that's what I have to say.
Eater.com says this thing happened.
The ethical question is obviated by the epistemological one.
If a million other news outlets had reported the same basic set of facts, or if it had
ever come into a big public court proceeding, yeah, at that point, I would say that I know
these facts to be true, in as much as anyone knows anything to be true.
And even then I might still feel ethically obligated to give Eater credit for first having
the story.
"The dispute, as first reported by eater.com, involves blah, blah, blah, blah, blah."
Maybe I wouldn't necessarily feel an obligation to do that for something as simple as the
whole ice cream fried chicken thing.
But how about Eater's 2017 investigative report on sexual misconduct allegations against chef
Mario Batali?
These allegations, at the time, were not being made out in the open.
Eater invested lots of time and money into developing sources, gaining their trust, verifying
their claims, to the extent that such verification is possible.
I absolutely do feel an obligation to give Eater a courtesy credit when I talk about
Mario Batali, even though some of these allegations are now a matter of public record — they're
in court proceedings.
I still feel an ethical obligation to mention that Eater had this first.
And I just think there's a lot of similarities here with the world of recipes.
I'll give you an example.
Here's this recipe for demi-glace that I posted on YouTube a couple of years ago.
3.2 million views, it looks like now.
Who owns demi-glace?
Nobody legally, of course, but what about ethically?
Some people might say Escoffier owns it.
Georges Auguste Escoffier was the leading chef in Paris and London around the turn of
the 20th century and his books codified a number of French culinary practices, most
notably the system of mother sauces from which demi-glace is derived.
I could have attributed my demi-glace recipe to Escoffier, but there are a couple of big
problems with that.
First of all, everybody knows that the person who popularizes a thing is not necessarily
the originator of that thing.
More often, the popularizer is just somebody who has sufficiently high socioeconomic status
to where they can get noticed doing the thing, whereas maybe the originator was lower status
and they couldn't get noticed and therefore they didn't get credit.
Escoffier did not invent demi-glace and he never claimed to.
Maybe he invented his own take on it — or maybe that was one of the lower-status cooks
working under him.
All I know is Escoffier popularized this version of demi-glace.
But attributing the popularizer often serves to contribute to the erasure of the originator.
I don't want to do that.
But then we run into the epistemological problem.
I don't know who invented demi-glace.
I only know whom I heard about it from.
And the way I make demi-glace would be totally unrecognizable to Escoffier as demi-glace.
The way that Escoffier did it was to mix a reduced brown stock with sauce espagnole and
then you strain that and then you finish it with a little bit of sherry.
That's not what I do, because nobody makes sauce espagnole anymore.
Do I know that to be true?
No.
I only know that Anthony Bourdain said so in his first cookbook, which is why I attributed
that claim to him in my video about demi-glace.
I do know that I've seen lots of chefs in real life and on TV make demi-glace many times.
And what they generally do is they roast some veal bones or joints until nice and dark with
some onions.
And then they simmer that in water for a really, really, really long time to dissolve out all
of the collagen and turn it into gelatin.
And then they take that and they strain it and they reduce it down almost to a glaze,
a demi-glace, a partial glaze.
Do I owe attribution to all of the chefs whose work led me to that impression, that conclusion?
I couldn't possibly remember who they all are.
Plus, they didn't invent it.
They probably got it from somewhere else themselves.
What I do know is that some years ago I watched a video by the OG food YouTuber, Chef John
of foodwishes.com.
And in this video, Chef John talked about how one can imitate the flavor and collagen
content of veal joints with the much less expensive combination of chicken wings and
beef shanks.
That combination is, as best as I can tell, novel to Chef John's recipe.
I can't find it written down anywhere else before then.
That doesn't mean he didn't get the idea from somewhere else, though.
And attributing the popularizer often serves to contribute to the marginalization and erasure
of the originator, which I don't want to do.
But what else can you do if you don't know who the originator is?
To my mind, Chef John's meat swap idea here was sufficiently novel as to deserve a courtesy
attribution from me.
I had to make that judgment, in much the same way that the U.S. Patent Office has to make
a judgment about which inventions are sufficiently novel as to be patentable.
All such judgments about what is or is not novel are inherently arbitrary, but we make
them nonetheless because we have to.
And when I did my first demi-glace recipe here on the channel, I gave credit to Chef
John for the inspiration, because I felt that he deserved it.
That said, I also made money with that video, right?
So am I a jerk for not sending Chef John a check?
Maybe, but did the recipe make money or did the video make money?
The video was entirely my creation.
To what extent is its value derived from the recipe?
I could have done a totally different recipe for demi-glace and the video probably still
would've made me a bunch of money.
In fact, that's exactly what happened with subsequent demi-glace recipes I did that were
not based at all on Chef John's recipe.
And I love Chef John as much as any human can love another human they've never met or
spoken to before, but another reason I didn't really feel obligated to send Chef John a
check is that like I can see that he's doing pretty well here in the YouTube economy himself,
and he's probably not hurting, right?
Plus, by linking his video in my video, I probably drove him some traffic and maybe
even contributed a bit to his income.
In contrast, here's this recipe I posted for Blueberry Yum Yum.
This was passed on to me by Brenda Tsavatewa of Macon, Georgia.
And I not only gave her credit in the video, I also paid her some money.
She didn't ask for it and I don't think she was expecting it, but I sent her a check in
the mail anyway.
She didn't claim to invent Blueberry Yum Yum.
She got the recipe from somebody else, who got it from somebody else, who got it from
somebody else.
The epistemological problem — I don't know who invented Blueberry Yum Yum.
I only know that I got it from Brenda and I didn't change what I published, hardly at
all, from the version she showed me.
So I felt that I should give her symbolic and substantive credit.
Of course, Brenda is not just one of the dozens of faceless internet recipe writers whose
work I consult when I'm developing my own recipes.
No.
I actually know Brenda, and I naturally feel more of a social obligation to her as a result.
Is that a good reason for me to credit her and not them?
The standard I usually apply to them is the same novelty standard I talked about with
Chef John.
If I can determine that someone seems to have been the first person to have written down
an idea that I deem novel, I give them credit in my video.
Is that enough?
And is my system for determining novelty sufficient?
I don't know, nor do I really know if that person on the internet really invented the
idea that I'm crediting to them.
All I know, all any of us know, is where we learned about a thing.
So I think if we can just say, "I got this from this person," that's going to keep all
of us out of most trouble.
I want to thank the folks at the U.S. Copyright Office for inviting me to write about all
of this.
I've got a link in the description to a recording of the event I did with them.
And most certainly I want to thank Squarespace, the sponsor of this video.
Squarespace is also the host of my personal website, which I have not updated in a very
long time.
So, here I am updating it.
And check how easy that is.
You don't need to have any special computer skills to build and maintain a beautiful site
from Squarespace.
There's my bio, updated.
Let's update these video embeds.
It's literally as simple as copying and pasting the link.
It's important for me to have a place I own on the internet, where I can hang my shingle.
I don't own my presence on any of the video hosting or social media sites that I'm on.
And I am constantly at the mercy of the managers of those private spaces.
If they determine that something of mine violates copyright, for example, they can and do take
it down, even if my use of copyrighted material is exactly what the U.S. Congress had in mind
when they codified the fair use doctrine.
On my own website I built with Squarespace, I set my own rules.
Get your own space on the internet.
When you pay to register a custom domain through Squarespace, or when you pay to publish the
site that you've built here for free, use my code, RAGUSEA, and you'll save 10%.
Thank you, Squarespace.
And thank you to all of the recipe writers out there whose work has informed my own.
I've given a lot of you credit through the years, and I'm going to try to be even better
about it from now on.