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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COMMENTS: 36


  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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  9. Bobby G says:

    Fun read for sure.

    I think you have already discussed comedians stealing material from other comedians (I admit I haven’t read that article yet but I think I saw it in one of your links), and that there are social norms that frown upon copying material from other comics. If a bunch of comedians hate a specific comedian, it makes me not want to support him as well.

    Now I will say I tend to disagree that just because there is no copyright protection there will be no creativity. Certainly there are different costs to different individuals when it comes to creativity… for some it is easy and for some it can be strenuous. Even in a world where everyone waits to copy others’ ideas, there can be money made from creativity even if the exclusivity is only temporary. As you’ve mentioned, there can be societal respect and other intangible rewards that can have positive financial impact for a creative new idea, and if one were to couple that with a “comparative advantage” (if you will) for being creative, I still see an incentive structure in place for creativity, albeit imperfect.

    My 2c, as I said, definitely enjoyed the article. Go bruins.

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  10. LisaL says:

    A local Korean restaurant here in the Midwest briefly did Korean-style bulgogi tacos about a year before it made its appearance in LA. We begged the owner-chef to make it a regular feature, but alas he did not.

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  11. Philippe says:

    What about cost of innovation?

    I’ll admit I’m business and food naive, so I might be completely wrong, but….

    It seems that the price of creating a new dish is very small. Thus I would venture to say that the investment capital is small and patents are not necessary. Whereas inventing a new part for the space shuttle is rocket science and requires a great deal of expense in testing and engineering, thus the investment capital is very large and requires patent protection.

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  12. Eric M. Jones says:

    Part of the job I had for many years involved legally “breaking” other people’s patents. Sometimes I did this by finding an earlier idea that the examiner had missed, sometimes I re-engineered our design to avoid certain claims in the other guy’s patent. Patents for minor creations are worth very little. Up until 1981 patents had real value. President Reagan said to loosen the patent standards and let the courts sort it out. Now patents are worth much less.

    Friends of mine with good ideas often ask me how to go about patenting them. I advise them to start making the thing (after a cursory patent search), then sell as many as you can before filing (you have one year from public disclosure).

    Filing patents and other means to attempt to protect an idea is why all the basic airplane parts have French names. The Wright brothers were very secretive and lawyered up while others just kept on inventing newer stuff.

    Google has made patent searches easy, although I advise anyone interested in the subject to invest 15 minutes to learn the slightly-odd search-string format at the USPTO (U.S. Patent and Trademark Office) and to use their TIFF downloads. This is a powerful tool for technologists, inventors and all those creative types.

    The idea behind patents was to give inventors a head start to encourage making stuff. The public benefit was disclosure to the public to educate people in how it was done. This advanced technology and industry for the public good.

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  13. physEcon says:

    It takes a bit more to produce a new cancer drug than a korean taco mutant.

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  14. ZenKimchi says:

    I agree with Joe above. I’ve heard this story about this “genius” inception of Kor-Mexican food before, but it’s really not such an original idea. I blogged about putting Korean ingredients in Mexican food in 2006, before this famous “revelation” by Mark Manguera. In fact, I can’t find an earlier post on the internet talking about fusing Korean and Mexican.

    http://www.zenkimchi.com/FoodJournal/recipes/fusion/fusion-2-kimchi-quesadillas/

    Heh, heh… so if anyone had any claims to the patent, it would be me.

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  15. Jack Walsh says:

    There is also the matter of “ownership” of a creative effort. Copyright (and patent) is widely thought to mean that the law gives “ownership” to the creator in the same way that I “own” my computer, or TV, or anything.

    As many above have stated, not the case. Copyright and patent are licenses granted to someone — not necessarily the creator — for a limited time. This is not “ownership” in any sense. The system was designed to encourage creativity and innovation, not grant ownership.

    Springsteen was right. They are HIS songs, no matter who has the licenses.

    Down with copyright. Stifles any efforts at creativity.

    BTW, it appears that several of the above folks would like to make patent or copyright somehow dependent on the cost of the innovation.

    Same thing — stifles any efforts at creativity.

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  16. come fora says:

    Korean Taco is a very good concept which will be liked by most of the people. The Korean taco raises a big question about creativity in cuisine.

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  17. John Lee says:

    No one owns Korean taco.

    Check out http://www.koreanrestaurantlist.com/

    It’s a directory of Korean restaurants, even fusion-style.

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  18. Crusader says:

    This article is just more FUD designed to devalue Apple’s patents. I know Apple’s genius scares you, but learn to embrace the genius, the sheer perfection of the iLife.

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  19. Eric M. Jones says:

    I think the patent requirement of being “non-obvious to one ordinarily skilled in the art” makes the Korean Taco fall flat.

    Sorry.

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  20. Joe Smith says:

    “It takes a bit more to produce a new cancer drug than a korean taco mutant.”

    There’s the truth.

    Protection of intellectual property only makes sense if: (1) the intellectual property is expensive to produce; and (2) it would not be produced without the protection.

    There are costs associated with the protection of intellectual property and the benefits have to outweigh those costs of protection to be justifiable.

    It is doubtful that patent protection of software is a appropriate while copyright protection probably is appropriate.

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  21. Eric M. Jones says:

    @20- Joe Smith

    I share your disdain for the Korean Taco patent, however:

    “Protection of intellectual property only makes sense if: (1) the intellectual property is expensive to produce”….

    Not so. Then only Big Companies would have the patents? Great patents are often for quite clever small cheap things.

    “and (2) it would not be produced without the protection.”

    Not so, although many companies demand to see a granted patent from a small inventor before they will talk to them. Many things are produced with nary a single patent.

    “There are costs associated with the protection of intellectual property and the benefits have to outweigh those costs of protection to be justifiable.”

    But you don’t know that going in. Garages are full of clever devices that were patented and then just sat there gathering dust.

    “It is doubtful that patent protection of software is a appropriate while copyright protection probably is appropriate.”

    Copyrights are not appropriate where the nature of how-things-work is concerned. You don’t think VisiCalc should have been granted a patent?

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  22. Mich says:

    Good article.
    Off-topic:
    I just want to say that I’m against intellectual property an copy right., and I want to recommend you this book:
    Copy Right: Against Intellectual Monopoly
    you can check it here: http://www.micheleboldrin.com/research/innovation.html
    Maybe One day you could invited the authors for a round of Q&A

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  23. Joe says:

    @ZenKimchi: if you publicly posted that in 2006, you’re way too late to patent it. Sorry. ;-)

    @Eric M. Jones: it fails the non-obvious test not only to a person of ordinary skill in the art, but to a person with a fridge full of multi-ethnic leftovers. I would hope that any judge faced with this claim would turn to Rule 11 immediately.

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  24. Michelle says:

    Great read and interesting concepts. I would like to point out a clarification regarding the statement “Recipes are unprotected by copyright, and so anyone can copy another’s recipe.” As set forth in the article, use of the ingredients and techniques set forth in a recipe is not subject to copyright protection. However, recipes *are* subject to copyright protection when they are written as they are an “original work of authorship.” Someone cannot take a written recipe and publish it without permission. This copying and re-posting happens all the time in online media and does qualify as copyright infringement.

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  25. Joe Smith says:

    “You don’t think VisiCalc should have been granted a patent?”

    VisiCalc is one of the few software ideas that I think deserved a patent and yet:
    1) it was never patented and was still invented without the prospect of patent protection;
    2) the world has benefited enormously from the many clones of VisiCalc that were produced (1-2-3, Excel, Quattro Pro, SuperCalc etc.) none of which would have been possible if VisiCalc had been patented.

    Patents are justifiable, not because it is somehow fair to the inventor, but because society expects to benefit on balance from the granting of a state enforced monopoly. There is a social cost to enforcing software patents and no apparent social benefit. Software is such a large and dynamic area of invention that it is unlikely that special protection is needed to encourage software inventions.

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  26. Tim says:

    An inherent nature to succeed exists, whether there is financial compensation derived from copyright protection or not.

    Cooks want to make the best foods; baseball players want to hit the most home runs, and artists want to paint the best . Thinking that profits are the sole motivation is another bad assumption in economic thinking.

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  27. Ed says:

    Just FYI everybody…. but when I was 11 years old, oh about mid-80′s to be sure… my uncle, a Korean immigrant to the U.S., bought a small Mexican food eatery in Santa Ana, California and begain putting Korean bbq marinated beef into tacos and burritos. Now, it was largely a “working class” Hispanic neighborhood where his eatery was located, and he didn’t have the power of the Internet or Twitter, but Korean bbq tacos was what he was serving and selling over 20 years ago.

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  28. Ed says:

    Joe Smith @ # 20,

    Now THERES the “Freakonomics” answer!

    So, what does Joe win, huh?.. ;)

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  29. drew w says:

    the idea that LA is any way responsible for the food cart trend is at best ignorant and at worst asinine.

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  30. Richard B. says:

    The point is, ladies and gentleman, that copying, for lack of a better word, is good. Copying is right, copying works. Copying clarifies, cuts through, and captures the essence of the evolutionary spirit. Copying, in all of its forms; copying for life, for money, for love, knowledge has marked the upward surge of mankind. And copying, you mark my words, will not only save Teldar Paper, but that other malfunctioning corporation called the USA. Thank you very much.

    {edited slightly from the original}

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  31. Rob Levine says:

    While this is an amusing story, it has nothing to do with copyright.

    The idea of a Korean taco could never be copyrighted – it’s an idea, not an expression. Even a molten chocolate cake can’t be copyrighted – it’s more like _a_ rock song than _a particular rock song_. Also, no one could make an exact copy of a particular taco without the recipe, and perhaps the same sources of ingredients.

    Sloppy thinking.

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  32. pixelm1 says:

    What’s troubling about this post – and the commenters who hold it up as “proof” that copyright is bad – is that the limitations are noted right in the post and yet the extrapolations don’t have them. This is a very interesting market – no doubt – but copyright doesn’t extend to ideas anyway, only patent does, and patents require proving to an examiner (and ultimately a judge) that they are nonobvious and original. What if someone could use the name “Kogi” and put out an inferior (or even different) taco? What if someone could steal the trade secrets that make it good? As the authors note – copies here are not digital copies – talent of the chef matters – and ambiance and the like also matter. It’s different for digital songs and movies. Picasso couldn’t copyright the line drawing – but he could (and did) own the printing rights to copies of his paintings and there is nothing wrong with that. Copyright – a limited exclusive right to protect expression – is only one way to compete and is not at all inconsistent with the thesis of this blog

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  33. Andrew Fong says:

    As the above posts may clear, although not explicitly, this is more a case where PATENTS aren’t necessary rather than COPYRIGHT. What’s at stake here is not a particular implementation of a food item but the actual idea. Copyright is supposed to be about creative expression. Patents are supposed to be about innovative ideas.

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  34. ncharp says:

    Copyright has nothing to do with creativity. It is aimed at securing reimbursement of loans to capital owners. Creativity results from the desire of becoming a creator and be as popular and loved as god can be in one’s own eyes.

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  35. Jose says:

    So who owns the copyright to the Taco?

    Why is okay to for one culture(Korean) to steal food from another culture(Mexican)?

    I don’t see Mexicans stealing from Korean, Chinese, Japanese, etc.

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  36. JT says:

    “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.”

    This is a remarkably poor analogy. Copying the Korean taco is not like copying the latest Lady Gaga download. Because the taco is one producer copying someone else product for mass production while the Lady Gaga example is a consumer copying a product for their own consumption.

    The analogy to draw here is that faced by George Harrison, the Verve, or Men at Work. They stand (stood) accused of copying some portion of another song (sometimes without permission, sometimes with). This is a far better analogy for the actions of another chef reproducing a popular food item. And yet there are stifling laws in the “producer to producer” type of copyrights. I am sure that ASCAP will be quick to point out that the protections of the producer to producer copying is just as necessary for creativity as the consumer to producer protections.

    I think they have gone WAY to far in both arenas. As examples in Food, Fashion and Stand-up show that markets do not stagnate even under non-existant protections.

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