It’s summer, so my more flexible schedule allows me to: 1. accept the gracious invitation from prawfsblawg to post a few half baked thoughts of my own and 2. bake a lot of things to completion in my kitchen!
Yes, I’m a foodie, and my experience leads me to believe that a lot of other law professors are, too. As one pointed out to me, cooking is a really great procrastination tool. Add the manner in which being a foodie has become a way of signaling upper class status, a la David Brooks, and there’s no wonder so many of us spend a lot of leisure time cooking and thinking about cooking.
So the following article from the NY Times last week may be of interest: Chef Sues Over Intellectual Property (the Menu).
Essentially, the owner of Pearl Oyster Bar, Rebecca Charles, is suing the owner of Ed’s Lobster Bar, her former sous chef, claiming he has ripped off the entire look and feel of her restaurant, including some recipes.
The author, Pete Wells, notes that this is a small restaurant, rather than a large chain, and discusses the possibility that this is the beginning of a coming trend in which chefs assert intellectual property claims over recipes and decor in the future. Charles’s lawyer argues, of course self-interestedly, that the high cost of opening fancy restaurants nowadays naturally contributes to the desire of chefs and owners to assert such claims, which he calls “long overdue.”
Charles is depicted as taking a great deal of personal offense at the competing restaurant, describing what sounds like a theft of her dignitary rights as an artist and even her identity. But along with that goes a lot of self-absorption and seeming naivete with respect to how derivative her own restaurant appears to be. For instance, the caesar salad dressing recipe that is part of the subject of the lawsuit originated with a chef in Los Angeles who gave it to Charles’s mother, and the entire restaurant was inspired by a pre-existing one in San Francisco–Swan Oyster Depot.
Of course, even if this is a harbinger of things to come, the impact of asserting IP rights may not be as large as it has been in other industries. The upscale chef lobby may never get as powerful as the music and film industry lobby, for instance. But suppose the attitude of many chefs, cooks, and restaurateurs did change? Would we start seeing recipes “licensed” to users for a charge, permitting them to cook at home? A budding teenaged chef being sued for sharing recipes with his friends? Culinary schools being sued for teaching patented techniques and distributing copyrighted recipes?
Despite my mild snobbery when it comes to ingredients and the like, I still basically love cooking and eating as highly social, communal activities that contribute to and cement emotional ties to others, such as my friends. As such, the entire notion of property in a recipe or technique is discomforting. On the other hand, I do want to avoid romanticizing the activity as a domestic pursuit that commodification and the market would “contaminate.” That kind of move–separating a market sphere from a domestic sphere as if they are highly distinct and liable to corrupt one another–is what has, in the past, justified failure to compensate women for highly valuable domestic labor. See, e.g., Joan C. Williams & Viviana A. Zelizer’s chapter, “To Commodify or Not to Commodify: That is Not the Question” in Rethinking Commodification. I wonder what other foodies, and especially feminist foodies, think about the commodification of eating and cooking?
Posted by Gowri Ramachandran on July 3, 2007 at 03:21 PM
Comments
At least Mike cannot be accused of mixing metaphors.
Posted by: Patrick S. O’Donnell | Jul 6, 2007 9:31:36 AM
I give Michael Madison’s post special props for the best title and the worst puns.
Posted by: Ann Bartow | Jul 6, 2007 9:04:38 AM
Patent is clearly the best means of protecting recipes under US IP law, but there are lots of cases asserting copyright protection in cookbooks as well. Some have prevailed where the recipe is expressed in distinctive terms, but most have failed b/c the underlying facts are uncopyrightable. E.g., Publications Int’l, Ltd. v. Meredith Corp., 88 F.3d 473, 480-81 (7th Cir.1996).
Although it’s clear that recipes can be patented, it’s less clear to me whether this kind of process patent does companies any good. If the recipe for Coke is too obscure to be reverse engineered, then the company may be better off not to patent it, because when that recipe becomes public in 20 years, there will be all kinds of identical knock-offs. They might do better to opt for trade secret protection.
Posted by: Dave | Jul 5, 2007 4:22:49 PM
I have a long-ish post on this dispute, and collect some other related links, at madisonian.
Posted by: Mike Madison | Jul 4, 2007 6:03:12 PM
That a small restaurant is making the trade dress argument may be news, but it isn’t “new” – lots of small companies have asserted trademark rights (such as “Burger King” in a small area of Illinois).
Arguably, the small but distinctive restaurant has much more to fear from theft of trade dress – what it lacks in visibility and ease of access it gains in goodwill due to unique ambiance.
Posted by: Michael Risch | Jul 4, 2007 9:45:07 AM
I love to cook. I spent thousands of dollars on my Lifetime stainless and learned to use the minimum moisture method quite well. My mother-in-law gave me a large paper bag with the recepies(1000’s) she had cut from newspapers and mags as well as many she had used that were family traditions. I’d say it represented 60 years or more of collecting. I would hate to think I could be sued for using them.
Posted by: bob c | Jul 4, 2007 9:06:46 AM
Anonymous,
I do think Pete Wells realizes that there’s no novel legal construct appearing here: He distinguishes the similar lawsuits brought by large corporate brands in the past, explaining that what’s of note is that Pearl Oyster Bar is a tiny business bringing the same kind of suit.
Granted, that news is not earth-shattering, but it’s still of interest because, as an empirical matter, commodification is in fact an ongoing process, regardless of how constant the formal legal rules are. There are things in the world that the law permits us to buy and sell or otherwise treat as property but which, for whatever reason, most people don’t treat as property.
If I invent a cooking technique at home, I could give it away to my friends with the caveat, “Please don’t use this technique except in the following circumstances authorized by me. I might decide to market it in the future.” But I don’t do that, and I have a feeling many people who are professional chefs don’t do that. They might actually take pride in a friend or pupil using and modifying their recipe, treat distribution of the recipe as free advertising, etc. In other words, I think the norm in vast portions of the food/cooking industry is more like that in the opensource community than in the music industry. And if that norm shifted, it would matter.
Posted by: Gowri Ramachandran | Jul 3, 2007 6:32:50 PM
Gowri, check the USPTO database for patents assigned to Kraft, General Mills, Nabisco, Nestle, Gerber…. the list goes on. Recipies have long been protected as intellectual property in one form or another (Coca-Cola, and Colonel Sanders’ 11 herbs & spices are two famous trade secret recipes).
Whether being performed in a factory, or a kitchen, a food recipe is patentable if new and non-obvious. It may be protected as a trade secret provided it is, of course, secret.
This is nothing new.
The trade dress issue discussed in the article is from a case that has gone up to the Supreme Court and back (Taco Cabana and Two Pesos)…
Whatever “commodification of eating and cooking” you are concerned with is not an ongoing process. It was decided 200 years ago when we decided to grant patents to any new, useful process or article….
Just call it what it is…. a slow, slow news day at the Times…
Posted by: Anonymous | Jul 3, 2007 4:54:52 PM
This isn’t the first case of this kind of thing: http://www.genx40.com/archives/2005/april/garbageplatelaw
I don’t know what came of the Rochester Garbage Plate suit, but the premise is similar. My question is what kind of intellectual property is best for this kind of thing. We could easily patent recipes as a method, but that would be unduly restrictive. Copyright is just flat out no good, and I don’t know enough about Trademark or Trade Secrets to really comment on those. (I haven’t taken IP yet.)
Posted by: Snitty | Jul 3, 2007 4:54:08 PM