Ed's Lobster Bar. Photo: Oscar Hidalgo/The New York Times
via NYTimes (thanks TWhid!):
Chef Sues Over Intellectual Property (the Menu)
By PETE WELLS
Published: June 27, 2007
excerpts with commentary:
Sometimes, Rebecca Charles wishes she were a little less influential.
She 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.
Yesterday she filed suit in Federal
District Court in Manhattan against the latest and, she said, the most
brazen of her imitators: Ed McFarland, chef and co-owner of Ed's
Lobster Bar in SoHo and her sous-chef at Pearl for six years.
The suit, which seeks unspecified financial damages from Mr. McFarland
and the restaurant itself, charges that Ed's Lobster Bar copies "each
and every element" of Pearl Oyster Bar, including the white marble bar,
the gray paint on the wainscoting, the chairs and bar stools with their
wheat-straw backs, the packets of oyster crackers placed at each table
setting and the dressing on the Caesar salad. [...]
In recent years, a handful of chefs and restaurateurs have invoked intellectual property concepts, including trademarks, patents and trade dress — the distinctive look and feel of a business — to defend their restaurants, their techniques and even their recipes, but most have stopped short of a courtroom. The Pearl Oyster Bar suit may be the most aggressive use of those concepts by the owner of a small restaurant. Some legal experts believe the number of cases will grow as chefs begin to think more like chief executives.
Glossing the article my eye stops here:
Charles Valauskas, a lawyer in Chicago who represents a number of
restaurants and chefs in intellectual property matters, called their
discovery of intellectual property law "long overdue" and attributed it
to greater competition as well as the high cost of opening a
restaurant.
hey, more jobs for lawyers;
"Now the stakes are so high," he said. "The
average restaurant can be millions of dollars. If I were an investor
I'd want to do something to make sure my investment is protected."
Ms.
Charles's investment was modest. She built Pearl Oyster Bar for about
$120,000 — a cost that in today's market qualifies as an early-bird
special.
it always boils down to the smell of money, or so it seems;
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.
So she acknowledges she was influenced by a pre-existing "narrow, unassuming" place, but there's always a "but"...
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.
"My restaurant is a personal reflection of me,
my experience, my family," she said. "That restaurant is me." [emphasis mine]
Really? And where does she think
she comes from? direct from heaven?
TWhid writes:
Even worse is this...What a hypocrite:
But the detail that seems to gnaw at her most is a $7 appetizer on Mr. McFarland's menu: "Ed's Caesar."
(nice use of "gnaw"...)
She learned it from her mother, who extracted
it decades ago from the chef at a long-gone Los Angeles restaurant. It
became a kind of signature at Pearl. And although she taught Mr.
McFarland how to make it, she said she had guarded the recipe more
closely than some restaurateurs watch their wine cellars.
Yikes. It is really all about money, with a smoke screen of sentimentality sown as a public relations ploy...
Fred Benenson of Free Culture @ NYU comments:
The entire premise of the article itself is fallacious -- the
restaurant owner is intending to sue over "intellectual property
rights" without really specifying what those are (copyright, patent,
trademark). Moreover, the journalist implies that "intellectual
property" rights exist as an actual atom of law which can be litigated
over, something that is not the case.
Furthermore, what isn't made clear (and what I'm sure Tim Wu went to
pains to make sure they understood) is that recipes nor ideas can be
owned like property, or even copyrighted. Though another chef mentions this, it's dishonest
and misleading for the journalist not to properly include these facts.
I'm working on a letter to the editor...
