What the Restaurant Business Needs is More Lawyers!

by on June 27, 2007 · 19 comments

Tom Lee has a great post on this New York Times article, which looks at the pressing problem of culinary piracy. Tom points out that the law is very clear—you can’t prevent other people from copying your recipes—and that’s a good thing:

All of this ignores the public domain innovations that Ms. Charles benefits from, royalty-free: the cocktails her bartenders serve, the system of reservation-making she presumably employs, and, most amazingly, the Caesar Salad recipe that she says her mother got from another restaurant, but which she’s now suing her sous chef for using. Diffuse borrowing seems to be okay; borrowing too much from one place isn’t, I guess. But where do you draw the line?

The story mentions that nondisclosure agreements are coming to more and more kitchens, but fails to point out why this is: as screwed-up as our IP system is, it actually dealt with these questions before the food industry was sufficiently powerful to corrupt the process. That’s why lawyers are now trying to shove all of this stuff into contract law, where you can get away with much more. In other words: it’s because the sorts of claims Ms. Charles is making are untenable under IP law.

There’s no question that the sous chef is being tacky by copying Charles’ restaurant, but it would be very silly to open a Pandora’s box by punishing him for copying paint colors. IP laws are there to encourage people to make new things; the market’s there to get them to make those things better. These distinctions can get blurry in the world of novel cuisine. But restaurants are fundamentally in the business of selling food, not seeking rent on ideas about food. This story is asinine, and Pete Wells would have done better to highlight how stupid everyone involved is being instead of just making the guy getting sued sound like a jerk.

Update: Oops, forgot to actually include the link to Tom’s entry. My bad!

  • https://eldiabloenlosdetalles.net Carlos

    This is actually quite amazing, because there’s very little question that the lack of copyright in cooking has not impaired innovation at all, and most likely the opposite. Same is true for other industries like fashion.

    If copyright becomes the rule in the cooking world, Stallman is going to be quite upset because he sure likes the analogy between software development and cooking.

    Cheers,

  • http://www.techliberation.com/contributors/braden_cox.php Braden

    If someone agrees to be hired, trained and employed by a chef–and voluntarily sings an agreement that he won’t take the recipes and run to compete against his employer–this is a matter of contract law and an ex-employee that violates this agreement should be sued for breach of contract.

    But from an IP perspective, we know from Coke and its formula that trade secrets can apply to recipes, though maybe trade secrets law does not apply where all chefs in a restaurant know a recipe.

  • https://eldiabloenlosdetalles.net Carlos

    This is actually quite amazing, because there’s very little question that the lack of copyright in cooking has not impaired innovation at all, and most likely the opposite. Same is true for other industries like fashion.

    If copyright becomes the rule in the cooking world, Stallman is going to be quite upset because he sure likes the analogy between software development and cooking.

    Cheers,

  • http://www.techliberation.com/ Tim Lee

    If the guy had signed an explicit contract, then I agree this would be a different question. But a simple verbal agreement—especially when the recipe in question was previously copied from yet another restaurant—doesn’t seem substantial enough to me to be the subject of a trade secret, although I admit I’m not an expert on the minutia of New York trade secret law. And certainly a lot of the details she’s suing over, like the granite countertops and the paint colors, are not trade secrets since they’re visible to every customer.

  • bradencox

    If someone agrees to be hired, trained and employed by a chef–and voluntarily sings an agreement that he won’t take the recipes and run to compete against his employer–this is a matter of contract law and an ex-employee that violates this agreement should be sued for breach of contract.

    But from an IP perspective, we know from Coke and its formula that trade secrets can apply to recipes, though maybe trade secrets law does not apply where all chefs in a restaurant know a recipe.

  • http://lippard.blogspot.com/ Jim Lippard

    Restaurant “look and feel” lawsuits (about restaurant decor and menu, rather than recipes) already hit the big time with Taco Cabana v. Two Pesos (a case that resulted in the demise of Two Pesos, which was a restaurant I enjoyed visiting as a grad student in Tucson) and Fuddruckers v. Flakey Jake’s.

    Ironically, the Flakey Jake’s in Tempe, Arizona turned into a Studebaker’s, which has been involved in similar disputes…

    http://findarticles.com/p/articles/mi_m3190/is_v19/ai_3738632

  • http://lippard.blogspot.com/ Jim Lippard

    Tim: You should go after this Tom Lee guy for stealing your ideas. (Or should he go after you?)

  • http://www.techliberation.com/ Tim Lee

    If the guy had signed an explicit contract, then I agree this would be a different question. But a simple verbal agreement—especially when the recipe in question was previously copied from yet another restaurant—doesn’t seem substantial enough to me to be the subject of a trade secret, although I admit I’m not an expert on the minutia of New York trade secret law. And certainly a lot of the details she’s suing over, like the granite countertops and the paint colors, are not trade secrets since they’re visible to every customer.

  • http://lippard.blogspot.com/ Jim Lippard

    Restaurant “look and feel” lawsuits (about restaurant decor and menu, rather than recipes) already hit the big time with Taco Cabana v. Two Pesos (a case that resulted in the demise of Two Pesos, which was a restaurant I enjoyed visiting as a grad student in Tucson) and Fuddruckers v. Flakey Jake’s.

    Ironically, the Flakey Jake’s in Tempe, Arizona turned into a Studebaker’s, which has been involved in similar disputes…

    http://findarticles.com/p/articles/mi_m3190/is_

  • http://lippard.blogspot.com/ Jim Lippard

    Tim: You should go after this Tom Lee guy for stealing your ideas. (Or should he go after you?)

  • Mike Sullivan

    Your link to the Tom Lee article points to this article.

  • http://www.wbklaw.com Mike Sullivan

    Your link to the Tom Lee article points to this article.

  • http://lippard.blogspot.com/ Jim Lippard

    Ah, I thought Tom Lee was Tim Lee’s alter ego, the self-link was intentional and you were having a laugh…

  • http://lippard.blogspot.com/ Jim Lippard

    Ah, I thought Tom Lee was Tim Lee’s alter ego, the self-link was intentional and you were having a laugh…

  • http://enigmafoundry.wordpress.com/ enigma_foundry

    If someone agrees to be hired, trained and employed by a chef–and voluntarily sings an agreement that he won’t take the recipes and run to compete against his employer–this is a matter of contract law and an ex-employee that violates this agreement should be sued for breach of contract.

    It is very far from that simple. IANAL, but in general those do not compete clauses are not valid, under a doctrine called restraint of trade.

    http://en.wikipedia.org/wiki/Restraint_of_trade

  • http://enigmafoundry.wordpress.com eee_eff

    If someone agrees to be hired, trained and employed by a chef–and voluntarily sings an agreement that he won’t take the recipes and run to compete against his employer–this is a matter of contract law and an ex-employee that violates this agreement should be sued for breach of contract.

    It is very far from that simple. IANAL, but in general those do not compete clauses are not valid, under a doctrine called restraint of trade.

    http://en.wikipedia.org/wiki/Restraint_of_trade

  • http://www.techliberation.com/contributors/braden_cox.php Braden

    In the U.S. non-compete agreements are common in an employment relationship, and they are enforceable if reasonable with respect to duration and geographic limitation, and if consideration is involved. The Wikipedia article cited above also confirms this: “Employment contracts which include restraining clauses, are generally held to fulfill the requirements in Nordenfelt…” [Nordenfelt is a case that has set forth a test for reasonableness in this area).

  • bradencox

    In the U.S. non-compete agreements are common in an employment relationship, and they are enforceable if reasonable with respect to duration and geographic limitation, and if consideration is involved. The Wikipedia article cited above also confirms this: “Employment contracts which include restraining clauses, are generally held to fulfill the requirements in Nordenfelt…” [Nordenfelt is a case that has set forth a test for reasonableness in this area).

  • http://www.myperfectcolor.com/ paint

    I do quite agree on what the wikipedia have.. thanks..

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