Bruce — I agree with you; I saw these claims in practice all the time, too. Ocasionally they arose in IP contexts, occasionally they arose in others. The departing employee — the one I trained; the one I nurtured practically from birth!; my child, even — is the paradigm. That experience probably contributes to my cynicism. I usually represented the defendant(s), that is, the ones who left the nest. The legal claims masked conflicts that ran much deeper than any that the legal system might resolve.

Jonathan — That excellent paper is now in print, Christopher J. Buccafusco, On the Legal Consequences of Sauces: Should Thomas Keller’s Recipes Be Per Se Copyrightable?, 24 Cardozo Arts & Ent. L.J. 1121 (2007), though the full, final text appears not to be in SSRN. (A draft appears here.) The article concludes that recipes might be amenable, formally, to inclusion as copyrightable subject matter, but as a policy matter should remain outside the IP system.

I agree, and I’d push this argument a step farther than the article does. The article argues that consumers (an unusually apt term here) can distinguish “taste” and “expressiveness” in a dish from its “nutrition,” but I think that draws a sharp line where a very, very blurry one better captures the dining experience. And it puts “taste” (an ambiguous term) on the wrong side of the line. If I eat at Jean Georges, I’ll stipulate for now that I can identify the chef’s “expression.” But the consumer’s side of the eating experience is not just “nutrition”; it’s taste — as in function, as in “I like the taste [texture, etc.].” Nutrition is largely a given, or a standard (as an idea is, at least metaphorically); taste is a consumer-to-consumer variable. So, translating “idea/expression” or “fact/expression” as “nutrition/expression” undervalues the consumer’s interest in eating, and it overstates the chef’s potential interest in his/her “creativity.”

There are lots of “arts” that are undervalued today in aesthetic terms, for historical and cultural reasons. Cooking and other “craft”-based arts suffer, in formal legal terms, as a result. But I suspect (along with Buccafusco and von Hippel) that chefs themselves are better off by treating proprietary claims as disciplinary, not legal. And I’m sure that the public benefits. If Rebecca Charles’s lobster stand is, in fact, hurt by Ed’s, then what does that say about the distinctiveness of Rebecca herself? Maybe, despite her self-image, she’s not so unique or creative, at least not any longer. Maybe New Yorkers just like lobster rolls. (For laywers — shades of the National Reporter System!) And there’s nothing that the legal system should do about that.