Flash in the Pan

When Menus Become Intellectual Property

The New York Times had an interesting article yesterday about chef Rebecca Charles suing her former sous-chef, Ed McFarland, claiming that his restaurant Ed's Lobster Bar copied "each and every element" of her establishment, Pearl Oyster Bar, from the decor to the Caesar salad recipe.The article goes on to say how a growing number of chefs are resorting to intellectual property protections - such as patents, trademarks, copyright, and trade secrets - to keep competitors from lifting their concepts. I found the following paragraph particularly intriguing:

She [Rebecca Charles] was, she asserts, the first chef in New York who took lobster rolls, fried clams and other sturdy utility players of New England seafood cookery and lifted them to all-star status on her menu. Since opening Pearl Oyster Bar in the West Village 10 years ago, she has ruefully watched the arrival of a string of restaurants she considers “knockoffs” of her own.

Ah, but where does inspiration leave off and copying start? The first chef in New York to treat New England seafood as haute cuisine? Maybe, but since when does originality stop at state borders?

A few years ago I interviewed Jasper White for Fortune Small Business because he had actually patented a way of cooking lobsters quickly in large batches. It was a veritable assembly line. "The reason I patented it is because this is a real copy cat business," he said, adding that other restaurateurs had lifted his ideas time and again. "Their idea of an influence is to copy it, put a new name on it, do it in another city, and call it a day."

White has been doing the upscale treatment of New England food - including seafood - since at least his time at the restaurant in the Bostonian Hotel back in the 1980s. So is Charles really innovative? And taking the ambiance of a seafood shack? They've been around for decades - as have other places

She acknowledged that Pearl was itself inspired by another narrow, unassuming place, Swan Oyster Depot in San Francisco. But she said she had spent many months making hundreds of small decisions about her restaurant’s look, feel and menu.

Those decisions made the place her own, she said, and were colored by her history. The paint scheme, for instance, was meant to evoke the seascape along the Maine coast where she spent summers as a girl.

Hundreds of small decisions? That's nice, but there was that original concept she saw - and adapted. The paint scheme evocative of summers in Maine? She may see that as a personal statement, but so could hundreds of thousands, if not millions, of others who have spent enough time in Maine. The Caesar salad? Got the recipe from her mother who got it from an LA restaurant years ago, except now she calls it a trade secret. But whose? Coddled eggs as a basis for the dressing? I remember hearing that concept probably a dozen years ago on a cooking show where the chefs said that it was a way to prevent problems with salmonella from raw eggs.

I understand the desire to protect intellectual property. I do that myself, as my living is based on IP. But you need to know when you've really done something different and when you owe too much to everyone who has gone before. When you want to keep a tight hold on what you've done and keep anyone else from using it as a springboard, you argue that you should not have the benefit of anyone else's experience, either.

The article mentions a Chicago chef who patented a way of printing images on edible paper. That's certainly different. An upscale clam shack? I think not - at least not by someone who didn't invent the idea in the first place.

Labels: Ed McFarland, food, IP, Jasper White, patent, Rebecca Charles, restaurant