Protecting cuisine under the rubric of intellectual property law: should the law play a bigger role in the kitchen?

• Author: Cunningham, Emily

Cite as 9 J. HIGH TECH. L. 21 (2009)

1. Introduction

   In June 2007, Rebecca Charles, chef-owner of Pearl Oyster Bar ("Pearl") in New York City's Greenwich Village, sued her former sous chef, Ed McFarland, now chef and part owner of Ed's Lobster Bar in New York's SoHo neighborhood. (1) In her complaint, Charles alleged that McFarland had pirated Pearl's menu, recipes, dish presentations, decor, "look and feel," all of which Charles believed amounted to a flagrant misappropriation of both her and Pearl's intellectual property. (2) The detail that reportedly irritated Charles most was a dish on McFarland's menu called "Ed's Caesar." (3) According to Charles, McFarland had copied her own Caesar salad recipe, made with English muffin croutons and a coddled egg dressing, which Charles maintained was a signature dish at Pearl. (4)

   The culinary and restaurant industries billed Charles's suit, which settled out of court on undisclosed terms in April 2008, (5) as among the first of its kind. (6) In the past, chefs and restaurateurs had invoked intellectual property concepts to defend particular aspects of their restaurants, but most had stopped short of filing suits, and few had attempted to argue intellectual property theft in such totality. (7) While Charles maintained that her case was about protecting her restaurant as a whole and not about laying claim to a type of food, her lawsuit sparked fierce debate in the culinary world, particularly with regard to intellectual property rights and cuisine itself. (8)

   This Note explores intellectual property laws in the culinary arena and examines whether imitation of a chef's cuisine constitutes intellectual property theft. This Note will establish that intellectual property protections such as copyright, trademark and trade dress, do not encompass recipes and culinary creations, nor should they. Utilizing copyright and trademark laws to protect cuisine will hinder competition among chefs and restaurants, discourage creativity and innovation, and undermine the culinary industry's norm of sharing. An increase in such protections also will fail to enhance chefs' profits, enforcement will be difficult, and litigation will be costly. The Note will demonstrate that while patent law can protect highly innovative recipes and methods of food preparation, most chefs probably will not utilize the patent system because of its high costs and stringent patentability standards. In addition to well-established norms in the culinary community, existing legal protections such as trade secret law, private contracting and the imposition of fiduciary duties provide adequate safeguards for a chef's proprietary information.

   Part I of this Note presents background information related to the issues discussed above, addressing the traditional culture of the culinary industry, the significance of the convergence of technology and cooking, and the growing interest in legal protection for culinary creations. Part II sets forth statutory and case law standards pertinent to the issue, discussing principles of copyright, trademark, trade dress, patent, and trade secret law. Part III of the Note analyzes the issues in light of the legal standards, traditions, culture and goals of the culinary industry. Ultimately, this Note explores the ramifications of extending intellectual property laws too far into the culinary world.

2. Background

   1. Copycat Cuisine: A Frequent Occurrence?

      Rebecca Charles is not the first chef-owner to have her culinary ideas allegedly ripped off. (9) In 2006, the eGullet Society for Culinary Arts & Letters ousted Australian chef Robin Wickens of Melbourne's Interlude for copying unique dishes from the menus of Alinea and wd~50, two high profile American restaurants. (10) Wickens admittedly copied the cuisine and the unusual methods of preparation and presentation, rendering the original creations and the Interlude dishes indistinguishable. (11) eGullet also exposed another chef--one at the Mandarin Oriental Hotel's Tapas Molecular Bar in Tokyo--who offered a tasting menu that was identical to that of Washington D.C.'s minibar, where he had previously worked. (12)

      Incidents like these disconcert many chef-owners, who work in an intensely competitive business and want to protect their investments. (13) Chefs are not the only ones who want protection; their investors do too. (14) Many high profile chefs are now household names, and there is significant value in what they produce, so investors might be wise to demand intellectual property protections. (15) Some also fear a growing trend in which corporations copy the inventive techniques and culinary creations of local establishments and use them in franchising chains. (16) Homaru Cantu, chef and founder of Chicago's moto restaurant, asserts that "food producers have always copied products from cutting edge restaurants. Why should we leave that money on the table for them?" (17) As competition and the cost of opening a restaurant continue to skyrocket, legal experts predict an increase in lawsuits similar to Charles's as chef-owners begin to think more like chief executive officers. (18)

   2. Traditional Industry Culture and the Derivation of Dishes

      The culinary industry generally views cooking as a derivative art. (19) Chefs work in an open-source model, drawing inspiration from a multitude of places, borrowing and expanding on fellow chefs' ideas and deriving new dishes from them. (20) Many chefs freely admit that they base their dishes on versions that they have previously seen or eaten. (21) In an open letter to London's Guardian newspaper, four renowned chefs wrote that "culinary traditions are collective, cumulative inventions, a heritage created by hundreds of generations of cooks." (22) Chef Nora Pouillon (23) echoes this sentiment, saying that she is flattered when someone passes along one of her recipes, and although it is nice to get credit, a recipe ultimately is something to share. (24) By nature, food people are generous and believe that much of the fun in food is in sharing it. (25) The International Association of Culinary Professionals' ethical guidelines require members to pledge that they will not knowingly use any recipe or intellectual property belonging to another for their own financial or professional advantage, but they also provide for use with proper recognition, further reflecting the industry's norm of sharing. (26)

      The role of apprenticeships and stagieres (27) in the industry also supports the idea that cooking is a shared art and one that is best handed down from one cook to another. (28) Professional cooking is viewed as a mentoring process whereby executive chefs teach their cooks everything they know--recipes and techniques--hoping that the cooks will successfully recreate the cuisine in order to keep a restaurant operating consistently. (29) The American Culinary Federation describes the goals of apprenticeship as gaining knowledge of the history, evolution and diversity of the culinary arts, practicing basic and advanced food preparation skills, and developing knowledge about food composition. (30) Apprentices are allowed and encouraged to carry their learned tools of the trade from job to job. (31) Essentially, they are taught to "pay it forward [and] spread the word." (32)

   3. The Fusion of Cooking and Mad Science

      The modern convergence of cooking and technology contributes to some chefs' desires for increased intellectual property protections. (33) Today, a group of avant-garde chefs is creating novel cuisine using equipment, ingredients and processes traditionally reserved for science. (34) Sometimes termed "molecular gastronomy" (although many chefs do not favor this nomenclature), this increasingly popular style of cooking involves applying scientific techniques to the creation of food. (35) The techniques include using lasers, chemical powders, enzymes, and flash freezing to make unique foods such as jelled sweet potato and bourbon, lamb with mastic-infused cream, and dehydrated bacon threaded on a wire and decorated with ribbons of dehydrated apple puree. (36) The result is cuisine that is highly imaginative and arguably, non-derivative. (37)

      According to some, this marriage of food, chemistry and technology reflects an important turning point in the history of cooking. (38) Cantu, a practitioner of molecular gastronomy, is a pioneer in the movement to expand intellectual property laws to certain culinary related creations. (39) Currently, he is seeking legal protection for his edible, cotton candy flavored paper--a concoction of soybean and cornstarch--and a fork that holds herbs, adding an aromatic element to each bite of food. (40) Cantu believes creative chefs ought to have the same rights and protections as the rest of the food industry. (41) While he does not advocate patenting food on a broad scale, Cantu believes patenting some of his intellectual property in order to get licensing fees from chefs, restaurants and businesses might be the most efficient way to tap revenue in the restaurant industry. (42)

3. Identifying Relevant Legal Standards

   1. Copyrightability of the Recipe that Makes the Dish

      The purpose of U.S. copyright law is "to promote the Progress of [...] useful Arts, by securing for limited times to Authors [...] the exclusive Right to their respective Writings and Discoveries." (43) An erroneous belief persists that the goal of copyright is to protect copyright holders from parties who would steal their work and the fruits of their creative labor. (44) While the Supreme Court recognizes that an effect of copyright law is to secure a fair return for the creative labor of an author, the ultimate goal of copyright is "to stimulate artistic creativity for the general public good." (45)

      The scope of the law is set forth in section 102 of the Copyright Act of 1976 and extends to literary, musical, dramatic, choreographic, pictorial, graphic, architectural and sculptural...