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. 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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  2. 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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  3. 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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  4. 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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  5. physEcon says:

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

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  6. 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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  7. 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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  8. 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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