Waiter, There’s A Lawyer in My Soup

Unless it’s a story about Krispy Kreme’s stock price hitting an even newer low, it’s rare to see restaurant news on the front page of the New York Times. Yet there is an important article there today about a lawsuit that Chef Rebecca Charles, owner of the Pearl Oyster Bar in the West Village, is bringing against a competitor and former employee, Chef Ed McFarland. It is the first instance (at least in my memory) of a chef claiming intellectual property rights over a menu.

Well, I should amend that statement a bit. I know a lot of chefs who have claimed intellectual property rights. I’ve never known any to actually take a case of a stolen menu item (or items) to court, as Chef Charles is doing. Having worked in more that a few bars and restaurants over the course of my misspent youth, I can say categorically that having your recipes “ripped off” is one of the long standing (and largely accepted) realities of the profession. You rip off from others, others rip off from you, it’s the way of the world, just like guitar players steal from each other writing rock and roll tunes. Escoffier begets Thomas Keller begets Tyler Florence in the same way Led Zeppelin begets AC/DC begets Jet.

The trick is being tasteful in the way that you steal. Swipe a few riffs from Jimmy Paige some Saturday night at the Roxy and odds are no one will notice (or will nod approvingly at your homage). Throw on shorts, a Gibson SG, and strum the opening chords of Highway to Hell and you’re a pathetic Angus Young wanna-be. Yet this is precisely what the young Marcel Vigneron did when he so obviously stole Wylie Dufresne’s vegetarian “egg” on an episode of Top Chef this past winter, an act which will forever label him as both a twerp and a thief. Such is the time-honored punishment for those who pilfer too obviously and too greedily.

But while that particular brand of outlaw justice may work among chefs, there is no such honor code among restauranteurs, who steal from each other much more brazenly and with much greater impunity. A concept that turns a decent buck inevitably inspires imitators. It’s been that way ever since Crazy Ahmed’s Flatbread stand, way back in ancient Mesopotamia, had to change it’s name to Crazy Ahmed’s Original Flatbread stand and ultimately to Crazy Ahmed’s New Original Flatbread stand to stay ahead of the competition. But that hasn’t stemmed the tide of an increasing number of food entrepreneurs who’ve been bringing lawsuits in recent years in various attempts to protect what they see as their intellectual property.

This would be the perfect spot for a screed about lawyers in the kitchen, creativity being held hostage by the legalism, blah blah blah. But I’m not going get near that territory. Mostly because I see this as a fad. Much of this has already been tried in the music world over the last several decades, to little avail. And let’s assume for a moment that Ms. Chase does win her case. That might force her competitor to change the look of his restaurant and his menu in this one instance. But is she going to have the time, energy and resources to go prosecuting every restauranteur, wherever they may be, that she believes is encroaching on her “concept”? She must be made of money. Most restauranteurs I know vacillate for months over whether they can afford new soap dispensers in the employee bathrooms, much less a lawyer to go out hunting for other restaurants with similar appetizer combos at $400 and hour. Much cheaper, easier and better for your reputation to just get creative and think up something else. And anyway, ever tried to get another restaurant owner to pony up dough? Even when a judge tells them to? I’d rather try to prize land away from the Israelis.

Nope, I’d say what we have here is your classic self-limiting phenomenon. Chef Charles may one day end up winning her case on principle (though that’s a long shot in my opinion), but in practice there’ll be nothing but degrees of losing. And if she’s still ticked about the realities of the food business, I’d say if you can’t stand the heat…