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All the IP You Can Eat

Here’s a case that I can sink my teeth into:  The owner of a small New York restaurant called Pearl Oyster Bar is suing a former employee for setting up a copycat eatery.  More below the jump.
The complaint and the New York Times coverage feature the menu of usual IP suspects.  There’s a thin pancake of a copyright — the selection and arrangement of the elements of the restaurant’s decor.  A trade secret topping — the Caesar dressing handed down from Mom.  The aroma of trade dress — walls colored to evoke summers in Maine.  And a pinch of moral rights, of the Napoleonic variety.  “My restaurant is a personal reflection of me, my experience, my family,” [plaintiff Rebecca Charles] “That restaurant is me.”

The case strikes me as thin gruel.  A selection-and-arrangement claim (also recast, I take it, in trade dress form) founders on a lack of (confusing) similarity apparent from the restaurants’ websites (see links below) and a lack of originality and/or distinctiveness.  The recipes can’t be copyrighted but might be trade secrets — but they certainly don’t sound secret in this case, not if they were shared unconditionally before the plaintiff got them into her mixing bowls.  The case isn’t so thin that a Rule 11 motion is in order, but thin enough that the settlement judge might recommend that the plaintiff consider separating her business identity from her family history, instead of taking her anxieties out on a competing chef.  If ever there were a case of Freud-in-IP, the NYT story makes it clear that this is one.

Neither armchair psychoanalysis nor the merits of the case make the case interesting.  Evidence of this sort of IP omnipresence is so abundant these days that these cases really aren’t news.  So why is this news?  And why be so harsh on this otherwise innocent plaintiff?  Because of the transparent Death of a Salesman “attention must be paid” character of the publicity surrounding the claims.  On its face, this case isn’t about the food and it isn’t about culinary ethics.  (Here’s an obligatory citation to Fauchart and von Hippel, arguing that chefs don’t need IP and don’t rely on it.  If second-comer-chef violates the norms of the kitchen, the rest of the community can throw him out the back door of the profession.)  The plaintiff is trying to whisk herself into a position of culinary influence.  The case is about competitive times for chefs, in a restaurant business in a city that likes to obsess about the comings and goings of The Next Big (or Little) Thing.  Upscale lobster rolls not so unique any longer?  Persuade the Times to connect your business woes to the IP zeitgeist.  Now you’re cutting edge again.

It would be a better strategy, I think, for Pearl to really cook up something new.


Pearl’s Oyster Bar

Ed’s Lobster Bar

Updated 6/27 with additional links:

Updated 7/1 with More from Ed Levine @ Serious Eats:

[W]hat we are witnessing is a culinary divorce being played out in the public eye. . . .  This fight is not about diners enjoying unfettered access to delectable lobster rolls and Caesar salads. It’s about a violation of trust, resentment, and betrayal behind the counter and the stove at a couple of restaurants in New York.

7 thoughts on “All the IP You Can Eat”

  1. You’re so jaded! seriously, though, the process you speak of here reminds me of Schauer’s article on the “Boundaries of the First Amendment” on how certain things once thought entirely outside the bounds of free speech analysis come to be 1A issues. He speculates press coverage has a lot to do with it.

  2. Jaded over the journalism as much as the law. Sometimes even the Times pays attention to the frivolous. I like Eric’s take. Someone “steal” your taste? Enrich your marketing director, not your lawyer.

  3. Mike, what about all the attribution talk in academia? It seems that the logic behind that view is close to the “My restaurant is a personal reflection of me, my experience, my family,” [plaintiff Rebecca Charles] “That restaurant is me” logic. As Frank notes about the 1st Amendment, it seems that something or a combination of things such as the media, aggressive IP stances, and/or narcissism fuels the position. I don’t think the position is correct, but there may be something more than frivolous here insofar as it reflects a rather nutty view of IP or as you note a way to dress up an inconsequential event as important IP piracy.

  4. Maybe I’m not jaded enough, but I don’t see any subterfuge or cynical ploys here. Rather, I see something I saw all the time in practice, the party with a deeply felt but not exactly legal grievance. There may be cognizable claims here but I suspect the primary motivation is a strong sense of disloyalty and betrayal. The complaint sounds as though it’s an attempt to cram that grievance into categories that perhaps don’t quite fit. Such plaintiffs usually wind up deeply dissatisfied with the outcomes provided by the legal system; e.g. settlement in the face of rapidly rising attorneys fees.

  5. Rebecca Charles doesn’t have a good claim for the theft of her recipes right now, but the law may very well be moving in her direction. Christopher Buccafusco has an excellent paper up on SSRN,, in which he argues that there isn’t any reason why copyright law couldn’t treat recipes like music and protect both reproduction and performance (though it may not always be the best idea to do so). If cooking is seen as a venue for innovation, and if Homaro Cantu and others begin turning to law to protect the fruits of that innovation, it may not be long before chefs can protect everything they put on the plate.

  6. Deven — I’m still on the fence about legal claims to attribution, but the best case for attribution requires, I think, that the claimant have created or contributed something authentically distinct and original and more rather than less concrete. “Upscale lobster rolls in a Maine setting but really in Manhattan” is just too vague, or perhaps too generic, or too derivative, to qualify.

    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.

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