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. 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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  2. 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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  3. 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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  4. Ed says:

    Joe Smith @ # 20,

    Now THERES the “Freakonomics” answer!

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

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  5. 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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  6. 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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  7. 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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  8. 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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