How to protect a creation that can take weeks or years to perfect? This has ever bedeviled inventors, but has been particularly vexing for people who try to make their living by cooking. Recipes are practically impossible to copyright. Famous examples of chefs who spawned a thousand imitations include Johanne Killeen and George Germon, who claim to have invented grilled pizza or at least to have been the first to popularize it. I will gladly go many miles to Al Forno, their Providence restaurant, to enjoy it. But even though they published the recipe in their first cookbook and get credit on Wikipedia, they haven’t gotten a commission from the hundreds of chefs who put grilled pizza on their menus, or royalties from the Web sites that print their original recipe—let alone from the thousands of sites that feature recipes for grilled pizza.
Intellectual property in the age of the Internet has been a thorn in the side of every writer, but cookbook writers feel like so many Saint Sebastians, regularly seeing their recipes printed word for word on Web sites without attribution. Barbara Kafka, the author of many books including Soup: A Way of Life and Roasting: A Simple Art, first brought this to my attention. About 30 of her recipes, she said, appeared unattributed on the provocatively named otherpeoplesrecipes.com, and she’d seen plenty more very familiar but nameless recipes on other sites. Before the Internet, writers who discovered their recipes in other books could demand credit in later printings, as Barbara Tropp, author of The Modern Art of Chinese Cooking, did with Martha Stewart’s seminal Entertaining. Many years ago, I raised my own minor ruckus when I discovered a recipe I had published in this magazine in the galleys of a new book by a very famous baker. The recipe was for almond biscotti (biscotti di Prato), in the days when the very word was new to American cookie culture, and I made 18 batches before getting the glass-crunchy texture I was determined to achieve. “Adapted from” my recipe, the introductory note said. What followed was a recipe identical in ingredients, instructions, and timings. Flattered though I was by her claim that this was the one cookie she could never be without, I protested. The author devised a new version with butter (my recipe was fatless save for eggs and nuts), leaving my biscotti to remain my small contribution to the ages.
Those days seem very quaint. Uncredited reprints in books can require redress or, at the least, acknowledgment, because other authors can profit from purloined work (we won’t go into the current state of the cookbook business). But the already elastic rules of “fair use” get very stretchy on the Internet. Blogs are generally written with no view (or realistic hope) of profit in mind; sites that do sell advertising can easily lift recipes whose attributions have already been shorn. Angry authors are left to start their own blogs (as Kafka has), placing book-buying links front and center, and hope for the brass ring—a TV show.
Reserving rights to a recipe is even harder once a dish goes onto a menu. Chefs constantly look to other chefs for ideas. Daniel Boulud’s sea bass roasted in paper-thin potato slices that look like fish scales was one of the most copied dishes of the 1980s; Nobu Matsuhisa’s miso-marinated black cod that of the 1990s; David Chang’s irresistibly fatty Berkshire pork shoulder at his Momofuku Ssäm Bar, in New York, will probably be so flattered. Those dishes don’t get credit on other people’s menus, let alone spin royalties. Chefs who want to turn their names into money look elsewhere: TV shows, magazines, product lines, licensing and franchise agreements, and today’s kitchen jackpot—a Las Vegas location.
If nothing is new in food, as someone invariably points out in such discussions, think of the challenges that face anyone dedicated to the staff of life. Flour, water, and yeast are Old Testament elemental. The idea of patenting a bread seems antithetical to the generous spirit that moves most cooks and, I would add, nearly every baker. (To my mind pretty much everything besides bread is a dietary supplement.) Since The Italian Baker was published, in 1985, I have watched several of Carol Field’s recipes and techniques for previously unknown Italian breads spread across the land like the sloppy, barely yeasted, unmanageably wet doughs that, as her book taught, result in the lightest, best-flavored bread. She’s seldom credited, of course.
An early Field adherent has long been my favorite baker in New York: Jim Lahey, who opened the Sullivan St Bakery in 1994 selling breads no one in the city had made before. Some of them he discovered by going to towns Field mentioned, like Genzano, south of Rome, where he found the bread that inspired his filone (“fat thread,” a word sometimes used for baguettes)—a holey loaf shaped like a small dachshund or a 1920s floor-model vacuum cleaner. Like most of his signature breads, it’s dark and crisp-crusted, with a light, airy crumb and a bare tang. With its unmistakable circular slice, the filone soon turned up in discerning restaurants’ bread baskets, and so did pane pugliese, a flatter loaf made with the same dough; Lahey named it in honor of the southern Italian region famous for its bread (no loaf in Italy is called “pugliese”). Sullivan St became the name to look and ask for, and the bakery’s one retail outlet, in SoHo, became the place to go for the incredibly airy, oil-brushed, lightly salted pizza bianca, which is even better than that of the bakery in Rome’s Campo de’ Fiori, Lahey’s model and mentor. (“Sullivan” seems to have good associations with good bread: the big bang of American bread was the opening of Steve Sullivan’s Acme Bread, in the Bay Area, in 1983.)
Outside of restaurants, though, the bread could be hard to come by. So at the end of last year, I was delighted to discover a small storefront selling all the familiar Sullivan St breads and two cookies that, like everything Sullivan St makes, are exemplary: biscotti pratesi (almost as good as mine) and ossi di morti, shatter-light meringues with almonds. The location, at 72nd Street and Broadway, was convenient to my brother’s apartment, where I stay, and perfect for buying and packing a loaf of the incomparable sesame bread—not just scattered with but rolled in a dense bed of sesame seeds—just before going to the airport. The name was unfamiliar: Grandaisy, with a pretty pale-blue daisy logo on the bags. The clerks reassured me that indeed, the bread was the same.
Sort of. When I recently ran into Lahey, a longtime acquaintance and an inexhaustible source of pungent, often profanity-strewn, quotes, I told him how happy I was finally to be able to buy Sullivan St breads every time I came to New York. “Those aren’t Sullivan St breads,” he said drily. Whaat?
The explanation, I learned when I went to see Lahey at his new Sullivan St Bakery headquarters in the far-west reaches of Hell’s Kitchen, was a romantic breakup that devolved into a rocky professional partnership that ended in a complete business split. Now there were two bakeries with two different names selling breads and cookies identically named and to all appearances utterly identical, one owned by Lahey and the other by his former partner, Monica Von Thun Calderón. Talk about confusion in the marketplace! I was certainly confused. I wondered how the Siamese twins had been parted, and how the twin breads would taste when reunited and compared.
I was put in mind of a much better-known baking breakup, which coincidentally has put two more bakeries on the Upper West Side selling very similar products: that of the two founders of Magnolia Bakery, which shot to fame after its way-too-cute cupcakes provided consolation to the women on Sex and the City. The television exposure started a cupcake craze in which tourists make pilgrimages to the West Village original (it’s a wonder there aren’t Japanese tourists dressed as cupcakes, or at least as Samantha). In a non-cute spat that delighted tabloids, the two women parted ways, and one of them opened a rival bakery called Buttercup Bake Shop. The owner of Buttercup (Magnolia has changed hands) did not want to talk to me about the split. But I noted with interest that when I asked for Magnolia Bakery on a call to 800-GOOG411, the free voice-activated directory-assistance service, the first listing I got was for Buttercup. (Maybe Google really is omniscient: Buttercup is the much better baker.)
However entertainingly operatic, the details of the Sullivan St separation are too complicated to go into here, and subject to the same side-choosing as in any divorce. A side story of skulduggery is more dramatic still, if potentially litigious: as Lahey tells it, a former distributor of Sullivan St breads hired former Sullivan St bakers to start his own bakery, opened suddenly with an extremely similar product line, and started making deliveries to Sullivan St customers with no notice of a change of vendor—initially in stockpiled bags with the Sullivan St name and logo, yet. “It was almost the perfect crime!” Lahey says Mario Batali called out to him one day, getting off his Vespa. (A lawsuit Lahey brought against the distributor over money he was owed was settled out of court.) The threat to their business galvanized Lahey and Von Thun Calderón to join in battle, and within a year they had won back many of their lost customers. But after weathering the crisis, the sparring partners split for good two years ago.
Now customers have to choose sides, and going by name and appearance won’t help. Aside from the two apparently twin bakeries and also the former distributor, who all sell to many restaurants and supermarkets, other reputable bakers are selling filones and puglieses—breads that hadn’t existed in New York before Lahey starting selling them. But he didn’t think to invent a word—like, say, frappuccino, which turned out to be the most valuable part of the lamented Coffee Connection chain when Starbucks bought it (or at least the part that Starbucks most valued)—that could be trademarked; instead, he picked names that had other established usages. It would be challenging to trademark them.
Not impossible, though, as Jeffrey Lindenbaum, a lawyer at a firm specializing in intellectual property who represents Lahey, explained to me. A “secondary meaning” of a geographically descriptive term like pugliese (or another kind of term) can be claimed after the product has been in commerce for five years or the manufacturer produces convincing evidence that the name has acquired “distinctiveness.” (Incredibly, numerous bread companies obtained trademarks on names for breads that include the word ciabatta, a common enough Italian term meaning “slipper” that was unknown in this country before Carol Field published a recipe for a then-obscure regional bread. Obviously, enforcing a trademark presents its own set of challenges.) Or, if the appearance of a loaf, like the fat filone, is different from anything else on the market, it can qualify for a “trade dress” trademark (think of a Coke bottle). Or, if the way of making the bread is revolutionary, a baker can apply for a “method patent.”
But Lahey never thought to try for any exotic trademarks or patents. He sought trademark counsel only during the formal split, in which he got the Sullivan St Bakery name and Von Thun Calderón got the original location on Sullivan Street, which she renamed “Grandaisy.” And, as she explained when I visited her at the original premises, “his nature is to change things.” She, by contrast, wanted to keep alive a “beautiful community bakery,” one that would be a “nice place to work.” A former graduate student in anthropology who was raised in Colorado by Bolivian and American parents, Von Thun Calderón calls running a bakery in New York, with its workers from many countries whom she encourages to get professional certification and GEDs, “applied anthropology extraordinaire—we’re an NGO that makes money.”
Both former partners took the high road in a comparative blind tasting I asked each one to do (separately, of course!) of three of their signature breads. They gamely participated, closing their eyes while I cut slices as identical as possible in crumb-to-crust ratio, chewing carefully with their eyes still shut, and not hesitating—going out of their way, in fact—to say when they thought a bread they suspected wasn’t theirs was better. “This has a nice malty flavor to the crust,” Lahey said of a pugliese roll that turned out to be Grandaisy’s, and called his pizza bianca “woefully underseasoned” (he thought Grandaisy’s was too). Von Thun Calderón thought the crust of Sullivan St’s sesame bread—a poor choice for a comparison, she gently pointed out, “because all you taste is delicious toasted sesame seeds”—was “more complex and layered and chewy” than hers, and wondered why her filone had a wild-yeast smell but didn’t taste as sour as she thought it would. She also wondered why Lahey’s bread was so much yellower than hers, even though she assumed they use the same flour.
The answer gets back to the question of intellectual property. In fact Lahey did come up with a revolutionary bread-making method, one that caused an enormous stir when The New York Times published an article about it: “no-knead” bread, which takes Field’s oft-stated principles of minimal yeast and maximal rising times to days-long extremes. Bloggers couldn’t stop praising the recipe, and it became one of the paper’s most e-mailed articles. Lahey says that readers come to his bakery simply to meet the man who let them have tasty homemade bread on their own tables every day. “It would be nice if they paid me a little something!” he said. “Or at least bought some of my bread.” But they don’t—they love their own bread, they say proudly—and none of the other bakeries that copy him pay him, either.
And in the larger picture, he says, that’s fine. The no-knead method was born at the request of an Italian cook who wanted to serve a Roman-era bread at a Roman-themed dinner, and was Lahey’s attempt to reproduce the most ancient way of making bread. To try to patent it would be absurd. Using the method at his bakery has resulted in a much more tranquil work environment. “What didn’t you hear?” he asked after a few hours of tasting and conversation at a table overlooking the production floor. “The whir-whir of mixers.” The reduced working of the dough results in a yellower crumb—the clearest visual difference between the two bakeries’ breads. Lahey got a book contract as a result of the Times article, and he is about to open a new restaurant called “Co.,” serving pizzas and bread. A successful restaurant can bring the kind of name recognition—and potential for self-branding—that bakeries don’t, no matter how wondrous their breads.
Besides, the market for “craft bread” is so small, he says, that rather than squabble, bakers should do their best to help each other increase sales and steal back sales from the industrial producers that caught on to the idea that “artisanal” bread sells (“I hate the word artisanal”). He wants to start a group called the Craft Bakers’ Association to share knowledge and also use collective buying power—something essential for small bakers, who have been hit by the sudden rise in the price of flour. Since December 2006, Von Thun Calderón says, her flour bills have tripled. In unity there is strength. His former partner, Lahey told me, will be the first baker he asks to join his group.