Who Owns the Korean Taco?

Kal Raustiala, a professor at UCLA Law School and the UCLA International Institute; and?Chris Sprigman, a professor at the University of Virginia Law School, are?experts in?counterfeiting and intellectual property. They have been?guest-blogging for us about copyright issues. Today, they write about copyright in the food industry.

Who Owns the Korean Taco?
By Kal Raustiala and Chris Sprigman

Walking home one night in Los Angeles with his sister-in law, Mark Manguera, who worked in food services at a hotel at the time, had an epiphany. What if he stuffed a tortilla with Korean barbecued short ribs? This was the birth of the now-famous “Korean taco,” a concept that fused two of L.A.’s favorite cuisines-both associated with abundant alcohol and good times-into one delicious combination. Within a month Manguera had teamed up with his friend Roy Choi, an accomplished chef, who took the idea and made it work. Together, they launched a business selling Korean tacos out of a truck. They called it Kogi, a play on the Korean word for meat.

In L.A., food trucks are a common sight, but for decades they were dominated by basic Mexican fare aimed at construction workers and residents of poorer neighborhoods. Kogi’s insight was to take the concept of a taco truck and twist it. It was a flash of gastronomic inspiration to combine Korean BBQ with tacos, but it was also a flash of marketing inspiration to offer a more upscale and lively truck experience, one that would appeal to an entirely new demographic.

In the beginning, even though the Kogi truck was parked in a busy part of West Hollywood, the team couldn’t give tacos away. But eventually L.A.’s adventurous eaters spread the word, and within months Kogi was a huge hit. The truck would park near offices by day, residential areas in the evening, and clubs and bars at night. Lines were long, and Kogi became a darling of the food press. Part of Kogi’s success stemmed from its technological savvy, such as its extensive use of Twitter, which helped followers know where the truck was at all times. But the overwhelming reason for its success was the creativity of the Kogi team, who for the first time combined two great tastes that had existed cheek-by-jowl in L.A. for decades, and, moreover, chose to “upscale” the plebian food truck rather than start a bricks-and-mortar restaurant.

The rest is food history. Roy Choi was just listed as one of Food & Wine Magazine‘s 10 best new chefs, and today there are hundreds of gourmet food trucks in L.A., offering everything from banana pudding to sushi. Of course, there are also many trucks offerings knockoffs of the Kogi taco. Even Baja Fresh, the fast food Mexican chain, began offering a Kogi taco, though it quickly changed the name to “Gogi.”

The birth of the Korean taco raises a big question about creativity in cuisine. Why do chefs continue to invent new dishes when others are free to copy them? In a series of earlier guest posts, we wrote about fashion and knockoffs-and how designers continue to innovate despite the absence of copyright protection for their designs.

From a copyright perspective, cuisine is a lot like fashion. Recipes are unprotected by copyright, and so anyone can copy another’s recipe. Actual dishes-the “built food” you order in a restaurant-can also be copied freely. And as anyone who has eaten a molten chocolate cake or miso-glazed black cod knows, popular and innovative dishes do seem to migrate from restaurant to restaurant. The bottom line is that almost anything creative a chef does-short of writing the menu, which is protected by law-can be copied by another chef.

As readers of our past posts know, the conventional wisdom says that in a system like this no one should innovate. Copyright’s raison d’etre is to promote creativity by protecting creators from pirates. But in the food world, pirates are everywhere. By this logic, we ought to be consigned to uninspired and traditional food choices. In short, the Korean taco should not exist.

But the real world does not follow this logic. In fact, we live in a golden age of cuisine. Thousands of new dishes are created every year in the nation’s restaurants. The quality of American cuisine is very high. The so-called molecular gastronomy movement has innovated in myriad (and often bizarre) ways that have filtered down to more modest restaurants all over the world. Television shows such as Top Chef and Iron Chef challenge contestants to mix and match improbable combinations of ingredients with little warning or time. Our contemporary food culture, in short, not only offers creativity; it increasingly worships creativity-and many of us worship it right back.

Why does creativity thrive in the culinary world despite the rampant copying that takes place? A few reasons jump out.

For one, copying the Korean taco is not like copying the latest Lady Gaga download. Cooking is a decidedly analog technology. There is no such thing as an exact copy of a dish. Indeed, the same restaurant will turn out differing versions of a signature recipe depending on who’s behind the stove, how busy they are, and how good the ingredients are that day. Copies are inherently imperfect.

Second, food is enjoyed in a context. When we eat at a restaurant-or at a truck–we are purchasing more than just the cuisine: the ambience, the scene, the service and so forth all combine to make the experience. Copies of a dish, no matter how good, cannot reproduce that overall bundle of goods. (And the law of “trade dress,” a version of trademark, protects the distinctive appearance of a restaurant’s décor.) A successful restaurant’s revenue stream, in short, draws from many tributaries.

Third, chefs, particularly at the high end, appear to have certain norms about what kinds of copies are acceptable. In a fascinating paper, two professors looked at top chefs in Paris. They found that a system of social norms existed that constrained copying and enforced rules about attribution. How robust this system is, and how widespread, is a matter for future research, but our own interviews with elite chefs in the U.S. suggest there are at least some professional costs to copying. To some degree, this keeps copying in check, though as the Kogi story shows, there are many exceptions.

There is clearly a lot more to be said about creativity in the kitchen. But the key point is that culinary creativity is flourishing, and it doesn’t depend on copyright. Like fashion, food challenges our preconceptions about the economics of innovation-and perhaps should challenge our legal rules as well.

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  1. TanMan says:

    Fascinating article. Thank you. Being a food consumer, not a creator, I had no idea that recipes were not copyrightable. And yet food creativity is rampant. Perhaps the copyright model is outdated?

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  2. TFL says:

    As with all things creative, there should be no copyright.

    What if Picasso copyrighted the pencil drawing? Mattisse the oil painting? Einstein the matter of relativity?

    The world would be a much smaller place.

    Creativity is like rabbits, the more there is the more there will likely be !

    TheFoodList.org

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  3. Yoav Lurie says:

    Very interesting.

    A brand manager in a consumer packaged goods manufacturer company once told me that it is rare that they patent most of their products, relying instead on speed to market, first-mover advantage, quality, and brand. Eventually, the market will catch up, patent or not (see Swiffer mops or Snuggies/Slankets). Innovation attract attention in a market of everyday-use products, so companies need to keep bringing new items to market.

    But, since restaurants can’t be leveraged in the same way (outside of chains/franchises), patent protection is not as meaningful. They still need to innovate, but then compete in a limited geography and with a number of additional factors (price, cuisine, quality, ingredients, atmosphere, service, and now, mobility).

    That said, the best are often imitated, rarely copied: see The Apple Pan in West LA. Same menu since 1946 and you still have to wait for a seat at the bar every time you come in.

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  4. Eileen Wyatt says:

    The more I think about it, the more the conventional wisdom puzzles me. If the rival cafe across the street can copy one’s latest dish, that could as well be all the more reason to invent another dish, so as to stay one step ahead of the posse. Being a faster inventor becomes a potential competitive advantage.

    There would then be an incentive to invent dishes that are relatively difficult to copy or to make at home, thus preserving one’s own near-monopoly on the dish.

    At the same time, a modest level of copying or near-copying can help make innovative cooking directions more broadly acceptable, potentially increasing one’s customer base.

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  5. frankenduf says:

    i agree with TFL- ‘conventional wisdom says no one innovates without copyrights’- what is this, drug company propaganda?- a simple perusal of history can figure out that innovators innovate, and business expropriates

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  6. Joe says:

    Seriously? Why are we even talking about this? Putting Korean beef in a flour tortilla should fail the creativity test for copyright or the obviousness test for patent.

    If they try to patent it, I’d be delighted to help hose them; I’ve got prior art from a local restaurant that was occasionally doing it a couple years before they came on the scene. And I’ve been personally doing it with leftover bulgogi for 10 years or more. I bet anyone who eats at Korean restaurants and keeps flour tortillas in the fridge has done this.

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  7. Adam says:

    It would be interesting to find out if the presence of other people competing with the creators has a positive or negative effect on a the creators business/demand. The first mover advantage for food seems so intertwined with brand recognition that it might be possible imitators only help the first mover. Once people try the knockoff (whether better or worse than the original) they will probably want to try the original as well. Or they will at least be aware of a new concept and tell others about it, further pushing them towards the biggest name brand.

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  8. Mark says:

    “As readers of our past posts know, the conventional wisdom says that in a system like this no one should innovate. Copyright’s raison d’etre is to promote creativity by protecting creators from pirates. But in the food world, pirates are everywhere. By this logic, we ought to be consigned to uninspired and traditional food choices. In short, the Korean taco should not exist.”

    “But the real world does not follow this logic.”

    The real world doesn’t follow the conventional wisdom because the conventional wisdom is wrong like many government policies (often based on erroneous economic ideas) that purport to protect or enhance consumers’ interests but actually promote/protect monopolists.

    Copyrights protect the profits of copyright holders. It does not promote creativity. Indeed, it squelches it.

    Your points 1, 2, and 3 hold little water. They’re attempts to rationalize what doesn’t fit with a theory that is so entrenched in mainstream economics.

    Think about it, professors.

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