Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“Life may not be exactly pleasant, but it is at least not dull. Heave yourself into Hell today, and you may miss, tomorrow or next day, another Scopes trial, or another War to End War, or perchance a rich and buxom widow with all her first husband's clothes. There are always more Hardings hatching. I advocate hanging on as long as possible.”     H. L. Mencken

June 26, 2007

Intellectual Property And Caesar Salad

by Doug Mataconis

Pete Wells of The New York Times writes today about what may well be one of the most inventive extensions of intellectual property law that I’ve ever seen:

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.

Mr. McFarland would not comment on the complaint, saying that he had not seen it yet. But he said that Ed’s Lobster Bar, which opened in March, was no imitator.

“I would say it’s a similar restaurant,” he said, “I would not say it’s a copy.”

Lawyers for Ms. Charles, 53, said that what Ed’s Lobster Bar had done amounted to theft of her intellectual property — the kind of claim more often seen in publishing and entertainment, or among giant restaurant chains protecting their brand.

That’s right. She’s asserting that someone who copied her ideas for a restaurant has violated her intellectual property rights.

As is typically the case with stories, like this, though, there is much more to the story. As it turns out, Ms. Charles’ ideas were not entirely original:

[Ms. Charles] acknowledged that Pearl was itself inspired by another narrow, unassuming place, Swan Oyster Depot in San Francisco.

Now, in the same spirit, couldn’t McFalrand argue that Ed’s Lobster Bar was “inspired” by Pearl ? After all, how many original ideas are there when it comes to restaurants. Doesn’t Ruth’s Chris take it’s inspiration from Morton’s ? And can anyone really tell me the difference between Chili’s and TGI Friday’s ? Or Romano’s Macaroni Grill and The Olive Garden ? It’s food people, there are only so many ways you can make it.

But the essence of the problem with Intellectual Property today comes in the story of a Caeser Salad:

[T]he detail that seems to gnaw at [Rebecca Charles] most is a $7 appetizer on Mr. McFarland’s menu: “Ed’s Caesar.”

She has never eaten it, but she and her lawyers claim it is made from her own Caesar salad recipe, which calls for a coddled egg and English muffin croutons.

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.

“When I taught him, I said, ‘You will never make this anywhere else,’ ” she insisted. According to lawyers for Ms. Charles, the Caesar salad recipe is a trade secret and Mr. McFarland had no more business taking it with him after he left than a Coca-Cola employee entrusted with the formula for Diet Coke.

Let’s just dissect this one for a second. Ms. Charles learns a Caeser Salad recipe from her mother, who in turn had “extracted” it from another chef decades ago. And now she claims that another chef has violated her intellectual property rights by duplicating it.

More to the point, though, is the fact that Caesar Salad (and, that, by the way, is the proper name, not Ceaser’s Salad),  is in itself an original idea that has been copied by, and modified by, countless chefs, professional and amateur, for the past 83 years. For Ms. Charles to claim that her “modifications” to an idea that has been around for almost a century constitute intellectual property worthy of protection is, quite honestly, absurd.

From a legal perspective, her IP claim is dubious at best. There is admittedly no originality in the recipe.

The only credible legal claim that Charles would have at this point is that McFarland, who was apparently a former employee of Ms. Charles, violated her trade secrets by copying the recipe.

But there are two problems here. First, the recipe itself was a copy from someone else. Second, there’s no evidence from the article that Charles took any steps to maintain the secrecy of the recipe. She shared it with McFarland and did not extract from him any explicit promise that he wouldn’t share it. And, quite frankly, she served the salad to the public on the daily basis. Anyone could’ve taken it home and figured out how she made it.

From a legal perspective, I can’t see how she has a case.

But that’s not purpose of this post.

The purpose of this post is to point out the absurdity of the current state of intellectual property laws. To say you can claim an enforceable right over a food recipe is, quite simply, absurd.

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1 Comment

  1. >> purpose of this post is to point out the absurdity of the current state of intellectual property laws

    If that was your purpose, you failed. It really doesn’t do that at all. You see, people can sue for any reason, no matter what.

    While I agree with you that this lady has no case, it doesn’t challenge the morality of intellectual property at all. Although you have haven’t mentioned it, I would also agree that software patents and business patents are invalid.

    Comment by Gunnar — June 27, 2007 @ 10:07 am

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