Being a renowned pastry chef is often likened to being an artist—a vocation rife with personal obsessions, fads, and the pressure to create something honest and new. And while pastry chef Matt Tinder doesn’t think of food as art, he does tend to work according to his obsessions, which are intentionally contrarian. If the current culinary zeitgeist favors ice cream, no dish on his menu will include a single scoop. Nor will he indulge in the current cupcake fad. Tinder prefers to explore dishes uncommon to fine-dining dessert menus. One year it was wet cakes—rum cakes, tres leches, Argentine tortas mojadas. Lately he’s been obsessed with baking whole-grain bread (something of a departure for a pastry chef). Back in 2012, when he was at San Francisco’s Saison restaurant, his obsession was the open fire.
“These guys were cooking over a big hearth in the middle of the kitchen,” Tinder says. “I just kept thinking, I’ve got to use this.” But what could he burn? He considered his options—fruit, mostly—but nothing really worked. Then he thought of a meringue. One afternoon, as the coals glowed in the fire pit and the savory chefs hustled to prepare for the dinner rush, Tinder whipped together sugar and egg whites to assemble a hand-built meringue. Then he pulled an ember from the kitchen’s fire and held it onto the meringue, searing the sugary gauze into an unexpected yet familiar char. It was just as he’d hoped; here was a haute cuisine go-to dessert, delicate and blackened, evoking the low-brow yet beloved s’more without being gimmicky or déclassé. After spending several months experimenting with it, and moving on to join the kitchen at Coi, in downtown San Francisco, Tinder finally listed the dessert on the menu: a frozen lime marshmallow inside a meringue, branded with a flickering ember—the Charcoal Toasted Meringue. When set down before the customers, recalls Tinder, “It smelled like campfire.”
This dessert brought Tinder much acclaim. It was immortalized in the popular Coi cookbook and helped land him a Rising Star Chef award. But a few months later, Tinder was scrolling through Instagram and stopped on a new post from fellow pastry chef and Rising Star award winner Stephanie Prida: a marshmallow, charred black and featuring the same bubbled s’more texture, held over a fire of glowing embers with two sticks. She tagged several chefs beneath the picture, including Johnny Ortiz, chef at San Francisco’s Saison restaurant, where Tinder formerly worked. But Tinder himself wasn’t mentioned. “Johnny you inspired this,” read Prida’s caption. “Ember kissed marshmallow.”
Of course, Tinder felt the “ember kissed marshmallow” wasn’t Prida’s creation at all. He took a screen grab of Prida’s post and posted it to his own account, captionless—no comment necessary, he felt. His friends and fans commented on the picture, understanding Tinder’s intention to show that something he’d spent months crafting had been co-opted by another chef—the inspiration for it attributed to others still. That it could have been a coincidence seems, to him, implausible.
“In music, if you do a cover—just say you’re doing a cover,” Tinder said recently over coffee and cigarettes at his new home in Calistoga, California. By then he was no longer angry about the marshmallow incident—he now has a collegial relationship with Prida—and admitted he was being unnecessarily inflammatory with the re-gram. But the issue of honesty in acknowledging one’s culinary influences—as well as the fundamental idea of originality—was still important to him. “You can do an amazing cover song, a beautiful cover—but just say that it’s a cover.”
Tinder’s short-lived Instagram feud with Prida sprung, in part, from the pressure chefs face to continually outdo themselves. “It’s like, ‘How am I ever going to beat that?’ circling in your head all the time,” Tinder says. “New, new, new. I realized, that’s not me.”
New dishes rightfully take time, he says; sometimes a dish might take months or even years of experimentation before it’s ready for the menu. This pressure to innovate has been exacerbated by haute cuisine being fetishized through media—on television, blogs, Yelp, and, of course, Instagram.
Tinder is in his midthirties, with watery blue eyes and a voice that coarsens with each cigarette he smokes. He talks about his vocation with unmistakable passion, never wavering on his opinions about the food world and its shortcomings. He came of age in the food business, starting work as a short-order cook at the age of sixteen in his native Hawaii. It bothers Tinder when people approach him to compliment his work after having only read about him or seen photos of his dishes. “Seriously? You’ve never even tasted my food and you’re gonna tell me you like it from a picture?” Instagram, he points out, embellishes food to the point of obfuscating its primary function—which is, simply, to taste good.
But Instagram happens to be a critical tool for many chefs. It’s especially useful for those who work far from such foodie capitals as New York and San Francisco, allowing them to flaunt a new dish to a crowd much larger than a dining room’s capacity, and to potentially cultivate a following based on aesthetics and the idea of how a well-presented dish might taste. Instagram helps to coronate new celebrity chefs, and expands the empires of chefs who already dominate the industry. Jamie Oliver, known around the world as the Naked Chef, posts to Instagram nearly every day, reaching more than 2.5 million followers. Even lesser-known cult stars, such as food-truck godfather and creator of the Kogi taco, Roy Choi, have followers in the tens of thousands. Instagram accounts such as @gastroart and @theartofplating aggregate food photos so precious and alluring that they often look more like sculptural installations than meals. Just searching the hashtag #ChefsOfInstagram brings up more than 187,170 photos. Of course, people outside the food world post food photos all the time—the tag #FoodPorn alone comes up with nearly 47 million of them. Enter a “foodstagram” wormhole, and you might forget that the app is used to capture anything other than food.
The crux of Instagram’s imitation problem is, perhaps, the muddy relationship of food to intellectual property. While packaged, store-bought food is often trademarked (Fritos or Pop Rocks, for example), and the process by which it is made is patented, claiming restaurant food as a chef’s invention is more difficult, both conceptually and legally.
As attorney Naomi Straus, an expert in the intersection of intellectual-property law and food, explains, “You’re not supposed to be able to copyright functional things.” This is to prevent the monopolizing of items we need in our everyday lives (like food). One could argue that chefs, under such pressure to innovate food that is at once aesthetically pleasing, delicious, and distinctly theirs, should be able to protect those innovations. But who would get to claim the copyright for rosemary roasted potatoes? Or tomato sauce with pasta? Or olive bread? (As this magazine reported in 2014, a corollary scenario is playing out in agriculture, where Monsanto and other corporations have patented the genetic codes of different cross-bred seeds, which puts many farmers and seed breeders, who have created the same breeds independently but lost the patent race, out of work.)
So while it is impossible to copyright an assembly of ingredients or even the process by which you cook them—toasting a meringue with an ember, for example (an innovative technique, to be sure, but one that’s difficult to distinguish from broiling a piece of fish)—Straus posits that, in theory, it could be possible to copyright a novel style of plating (the manner in which the food is prepared and arranged on the plate). “Plating is often very creative,” she says, “and there is really no reason why that should not be protected under copyright law, just like drawings, or forms of sculpture.”
Straus points out that there are also visual artists who use food as their medium, “and I don’t think anyone would argue that those artists aren’t eligible for copyright.” Because you can see and take a picture of it, the innovation inherent in a new visual presentation of food is the easiest to protect; capturing the flavor of something, on the other hand, is quite hard. “Part of what makes cooking and eating exciting,” says Straus, “is that the experience is ephemeral.”
Chefs can currently trademark their creations, which protects the name but doesn’t necessarily prevent someone from making the same dish. The Cronut, for example, a recent New York City baked sensation, is trademarked. This can’t stop someone from frying a croissant like a doughnut, but it does prevent another bakery from calling its own croissant-doughnut hybrid a Cronut. (In fact, the doughssant was created in 1991, but wasn’t trademarked until after the Cronut revolution.) The wildly popular Momofuku restaurant group and its Milk Bar bakery, in New York, trademark many of their goods, including the Crack Pie, which one chef described to me as “basically a pecan pie without any of the pecans.” It’s a chess pie, I learned—a dessert with contested origins that has been popular among American housewives, particularly in the South, for generations. Christina Tosi, the pastry chef at Milk Bar, spruced it up with some powdered sugar, and a new, trademarked name, and—voilà!—the age-old pie is now a New York food sensation. Tosi also trademarked her “Cereal Milk” (milk that basically tastes like what you slurp down from the bottom of the bowl). The concept isn’t hers, of course, but the idea to sell it and trademark the name is. She has also trademarked the company’s “Compost Cookie,” a kind of everything-but-the-kitchen-sink treat.
To many chefs, the idea of trademarking is a bit crass, and they don’t really see the point. You don’t make money on the trademark, after all—you just prevent others from earning off of the name you coined. Copyrighting is intended to protect creative expression, and many chefs do think of themselves as artists. But since it’s so difficult to copyright a food creation, as Straus explains, and in the absence of other intellectual property protection, some chefs use the trademark as a proxy. Ultimately, copyright law doesn’t recognize food as a form of expression that needs protection. And until chefs find a way to have their work legally recognized as a form of creative expression, Instagram can act as a type of informal, visual copyright.
On a foggy San Francisco morning this past January, just three weeks before opening night, I visited Mourad, the eponymous, Moroccan-inspired restaurant of celebrity chef Mourad Lahlou. The cavernous, newly renovated space sits on the bottom floor of the PacBell building, a twenty-six-story Art Deco landmark in the city’s financial district. It was Saturday, so downtown was free of the weekday commuter bustle. The restaurant still didn’t have its signage up, just a permit to work taped to its large glass-door entrance.
Inside, the lights evoked a night bazaar, and the wooden tables, buffed until they nearly gleamed, were arranged atop carpets reminiscent of hand-woven rugs in a Moroccan home. Mourad’s chefs were busy building a menu with a high price point that would live up to the city’s anticipatory hype. In the kitchen at the back of the restaurant, Melissa Chou, a celebrated pastry chef who had previously worked at Lahlou’s other restaurant, Aziza, was putting the final touches on recipes she’d spent all summer trying to perfect. Her station was a glistening, stainless-steel countertop beneath a window that faced out onto Minna Street. Arranged on the counter was her prized equipment: blenders, pastry scales, a Carpigiani (the Lamborghini of ice-cream makers), her laptop, and neatly stacked plastic containers filled with spices and labeled by hand—star anise, turmeric, cardamom, meat cure, Vietnamese cinnamon.
Chou lifted the lid from a crockpot that contained her newest creation, a heavy beeswax cream. Steam billowed upward, a sweet, tangy smell filling the room; there was something almost sour about it—with notes of burnt bitterness—but it was still soothing and familiar. By slowly heating beeswax in cream, she explained, the wax melts and infuses into the cream’s lipids. When the mixture cools, the beeswax reconstitutes. She then strains out the hardened pieces and uses the liquid to make a kind of eggless custard. There was nothing new about this combination of milk and honey, and yet what Chou was making was, in some way, revelatory. It was not, however, something she would be able to copyright.
“The thing is, nothing’s really new. There’s nothing that hasn’t been done before,” Lahlou said later. Innovation and surprise are good, he thinks, but too much emphasis on making dishes new can end up being gimmicky, so that their popularity “just lasts for a moment, then flames out.”
An Iron Chef champion with a popular cookbook, Lahlou is less nervous now about chefs stealing his ideas than when he was starting out. When he first opened Aziza, he recalled, he held his signature couscous recipe close, arriving early in the mornings so that no one could see how he did it. “But then I got tired,” he said. He needed other people to help. And while he still keeps some details of his work close to the chest, nothing is entirely secret anymore.
It could be that shrugging off the importance of an innovative reputation is a side effect of culinary celebrity. And yet the branding never stops. Mourad’s hot new restaurant is called Mourad, after all, as is his cookbook. “For me, all that marketing is great so long as it brings people in and gives us a platform to let us do what we want to do,” he explained. Instagram, of course, is a part of that marketing.
And what about the issue of copyrighting? The lack of protection doesn’t really bother Lahlou, because much of what they do can’t be easily imitated. “A recipe is just a map,” he said. “Think about it: I could give you a manual on how to build a plane, but I would never board the plane that you built.”
“Take Melissa,” he went on, gesturing toward Chou. “Her identity as a chef is in the food itself, not in the recipe.”
Chou pushed back a bit. “But what if all of a sudden, right before we’re about to open, someone posted a beeswax-and-cream dessert on
Instagram? I’d be really worried, and so would you, I think.”
Lahlou shrugged. “But no one is going to make that dish better than you.”
Google “Coal Meringue Instagram” and you won’t find Prida or Tinder’s posts (his has long since been deleted), but you will find a video posted by Gregory Gourdet, Executive Chef at Portland’s Departure restaurant, who has nearly 11,000 followers. The camera is trained on a nicely arranged wooden plating station, capturing the moment when an oblong charcoal is taken from the fire with tongs and pressed onto a pure white meringue. The camera zooms in as the meringue softens under the ember’s heat, gray smoke wafting from beneath it into the bustle of the kitchen. When the charcoal is removed, the meringue is left with a dark, blistered stripe of caramelized sugar. “Coal Charred Meringue for the Orange Olive Oil Cake,” reads the caption. This video garnered eighty-four likes; a handful of followers gushed over the creation in the comments section.
Then, toward the end of the comments:
“Where did you get the idea for coal toasted meringue?” asks chef Andrew Evan Mace.
GG30000: “@andrewevenmace, I give props to my boy @speedyromeo for that idea. He only cooks with a pizza oven and wood fire. He branded some meringue for me a while back on a chocolate dessert. I’m a huge fan of yours btw. Love those pop up pics.”
Andrewevanmace: “Thanks, man! I was just curious. For feast 2012 Matt Tinder from coi did a dessert of frozen bears lime with coal toasted meringue. I think it’s actually in the coi cookbook.”
Gourdet doesn’t respond. A Portland-area food blogger, either unaware of or uninterested in the conversation, adds to the comments section, posting, simply, “Amaze.” The comments end there.
It may be that the charcoal-toasted meringue has gotten so far away from its original creator that many people don’t even realize who its creator is, or that it had a creator at all. But then again—who invented the s’more? Who first realized that milk and honey make a soothing and timeless combination? Perhaps it’s better that food can’t be so easily copyrighted—not just because it all ends up in the same place in the end, as Tinder sees it, but because food is inherently traditional, coming from centuries of eaters—those who grew or gathered what food was available, and those who cooked for them. Straus summed up what many chefs had been explaining to me for weeks: “In a way, what makes some chefs uninterested in intellectual-property protections is the fact that the real art of cooking lies in things you can’t copyright, like palate, technique, and instincts. These skills are nearly impossible to copy.”
Taste a good thing and you’ll know it, and if you have a spare moment you might write about it in a virtual space—or tag a photo of it on Instagram. Perhaps intellectual-property laws will evolve to benefit chefs someday, but not someday soon. In the meantime, the rest of us can scroll through Instagram looking for trends and new restaurants, sating our food-porn urges as we stare at dishes we’ll never even taste, that we would never be able to copy no matter how hard we tried.