Monday, March 09, 2009

Recipes as Intellectual Property

So TheWife and I were in our favorite Persian restaurant yesterday, having a little late celebration of her birthday (if you're in the Baltimore area and have never tried the Orchard Market Cafe, you're in for a treat). We were enjoying our usual appetizers -- her an eggplant and artichoke dish and me haleem bedemajune, an eggplant and lentil dip -- when she looks up and asks, "So, if somehow, illicitly, I was able to photocopy the recipe, would there be anything wrong with that? I would not open a competing restaurant or make money off of it, but I could make it for myself at home." I asked whether it would mean she would come to the restaurant any less frequently? She said no, the salmon would bring her back, so they would suffer no loss of business. the idea then is that they would endure absolutely no harm as a result of her acquiring the recipe without permission, but was there still something wrong with taking it?

We shared the intuition that there would be something wrong here. I find the concept of intellectual property a bit problematic -- trying to patch a 17th century concept onto 20th century issues in a way that doesn't dovetail quite right in many cases -- but it seems appropriate here. A recipe, assuming it is novel, is a creative work and that seems to endow the creator with certain rights to it. Acquiring it on the sly would seem like stealing here and thereby wrong.

But then suppose by enjoying the dish, you were able to figure out what is in it -- clearly eggplant, artichoke heart, olive and a mustard-based cream sauce, but what else? If you tasted carefully and figured out what seasonings to add and tried a couple times until you got the proportions just right, would that be different? You've ended up with the respire that isn't yours, so it's the same end result, but it does seem a bit different. Why?

Is it because by tasting and recreating, I am adding my own labor? Is it now my creative act? But why would that little bit of effort entitle me to the creative work of someone else? Is it because the tasting is public -- the dish is offered for anyone who will purchase a serving and that act of giving me the dish makes it no longer private property? But I wouldn't have the right to ask for the recipe just because I ordered it. I may have the right to ask whether there is, say, peanut or wheat in it because of allergies, but that is not asking to be able to make it myself. Or is the intuition wrong and it remains wrong to try to "reverse engineer" a dish you've eaten somewhere and loved?