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.