Intellectual Property

Render Unto Caesar What Is In Caesar's Salad


pearl oyster bar

Intellectual property has always been pretty dodgy when it comes to recipes and cookery–they've traditionally joined dress designs and mathematical algorithms on the list of non-protected property. Now Rebecca Charles, the chef of Pearl's Oyster Bar, a ten-year old restaurant in the West Village that made lobster rolls chic, is suing her former sous chef Ed McFarland, claiming that his restaurant, Ed's Lobster Bar, copies "each and every element" of her restaurant.

The detail that seems to gnaw at her 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.

And elsewhere:

[Charles] 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.

Everyone steals from everyone until someone has the bright idea to sue. Some chefs are using contracts: Chef Homaro Cantu "makes his cooks sign a nondisclosure agreement before they so much as boil water at Moto, his restaurant in Chicago."

Haven't had your fill of intellectual property squabbles? Check out "Creation Myths" and more.

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  1. Some chefs are using contracts: Chef Homaro Cantu “makes his cooks sign a nondisclosure agreement before they so much as boil water at Moto, his restaurant in Chicago.”

    That would be treating it like it is a trade secret, which seems perfectly acceptable. Not that I think that you are objecting to that.

  2. Sounds like Ms. Charles should have had a noncompete agreeement as well. Though I don’t know how enforceable it would be under New York law.

  3. She’s suing because he “stole” the recipe that she “borrowed”?


    BTW, I have to get to Moto one of these days.

    I’m missing out on dining at Alinea with some friends this weekend. ;(

  4. Down with IP!

    Some chefs are using contracts: Chef Homaro Cantu “makes his cooks sign a nondisclosure agreement before they so much as boil water at Moto, his restaurant in Chicago.”

    I don’t have a problem with that.

  5. I have your receipe, Salad Nazi!

  6. I’m not a chef. Hell, I’m what you would call culinarily challenged.
    That said, it seems to me (from my admitted inexperienced, unqualified position) that most “recipes” could be reverse engineered by someone with more experience and a better trained palate than myself. There seems to be a lot of food aficionados who regularly post here. Am I right about that?

  7. All knowledge is derivative; somebody told me that once.

  8. Oh, absolutely. A person with extensive knowledge of cooking and a refined palate can closely approximate just about any recipe, with adequate experimentation. This isn’t a job for the Rosenbergs.

  9. P Brooks,

    To paraphrase Newton, if I have seen further it is because I stand on the shoulders of giants.

  10. 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.

    So she’s trying to copyright the idea of putting oyster crackers on the table? And considering how trends go, trying to copyright decor like a white marble bar would be like somebody in the 70s trying to copyright the use of colors such as phlegm-green and vomit-orange.

    Maybwe I can copyright the whole “wrap silverware in a napkin rather than place it directly on the table” idea.

  11. Jennifer,

    Well, there is the concept of Trade Dress. FWIW.

  12. I’m familiar with the concept of trade dress, Grotius (though I didn’t know what it was called), but I don’t think that’s the same thing. One of the Wikipedia examples was “the shape of a Coke bottle.” This instance sounds less like Coke complaining “his soda bottle looks a lot like ours,” and more like “his bottle is made of glass, just like ours.” Or even “he sells his soda in a bottle, just as we do.”

    And to make it worse, in this analogy, Coke has the gall to sue someone for selling soda in glass bottles despite the fact that Coke itself “borrowed” the glass-bottle concept from someone else.

  13. I don’t know if this is a great example, but as long as we’re going to agree that there is such a thing as “intellectual property” I suppose it’s worth discussing what ideas can be owned and which ones cannot. A recipe is at least in some ways simlar to a process, which can be patented I believe.

    Decor is even tricker – if I were to open resturants that were housed in buildings that looked exactly like McDonalds (sans the trademarks), do you think they’d have a case for a lawsuit?

  14. I didn’t see Grotius and Jennifers’ previous posts which kind of cover what I was saying.

  15. Dan,

    All fast food restaurants _do_ look exactly the same, except for the signage. Strip that off and I can’t tell what used to be a Wendy’s from what was once a Carl’s Junior.

  16. Ideas, per se, can’t be owned except insofar as they are patentable processes or inventions (I’ll let Dave W. weigh in eventually on this and say no more). The unique expression of an idea is copyrightable, which leads to questions about what counts as expression or uniqueness. A trademark (the McDonalds example) is protectable at least in theory because of concerns public confusion (in reality, to protect the value of the brand). So the question becomes one of “fact” — does the removal of trademarks (which, btw, would include the arches) make it clear that the place is not a McDonalds? The legal principles are actually fairly simple, it is their case-by-case application that quickly becomes a mare’s nest.

  17. Ceasar?

  18. Going back to the foundations of patent, trademark, and copyright law, we see that each of those was enacted for utilitarian purposes–to encourage production of creative works and progress in the useful arts, and to avoid confusion about what people are buying.

    No one who eats at Ed’s is likely to think they’re eating at Pearl’s, and vice versa, so there is no benefit from society at large for honoring this as a trademark. Ms. Charles, knowing her recipes may be stolen in future, may have less of an incentive to create good new ones, but given the competitive nature of restaurants and the high first-mover advantage, I find the first part of this sentence amusingly implausible.

    However, contract law still ought to hold (thus the chef at Moto would have action if one of his people stole his recipes).

  19. Yes, Pro Libertate?

  20. Just checking. We were worried about you, man.

  21. Is the McDowell’s in Queens still open?

  22. You can’t swipe proprietary knowledge, although that didn’t stop the former Veep at Mickie Dees from smuggling the Frog Fry recipe when he jumped ship to Burger King.

    For all you youngsters, there was a period of time when McDonalds fries were quite tasty and a subsequent period of time when Burger King and McDonalds fries were indistinguishable from one another.

    I am never quite sure if fast food has gotten worse or if my tastes have changed over time. I’m inclined, however, to suspect that when the McDonald Brothers were grinding their own meat and making their own patties that the food was a bit better (not that I’m old enough to remember).

  23. Is the McDowell’s in Queens still open?

    Why, yes it is — it’s the Wendy’s located at the intersection of Queens Boulevard and Broadway in Elmhurst. While I haven’t been there in a while, the last time I was there, movie stills from the McDowells scenes in “Coming to America” still graced the walls.

  24. Looking at the above posts, there ought to be a rule prohibiting the posting at H&R of opinions on IP matters until the prospective poster has demonstrated a rudimentary ability to differentiate between patents, copyrights, trademarks, trade dress, and unfair competition.

  25. I went to pearl’s once.

    Some friends and I wanted to try out all the decent oyster joints in town, and this was near the top of the list.

    We left after first round. The place is all ferns and wine drinking southhampton/soho intelligentsia who think the place is the epitome of cute cozy gourmetness. It’s fucking lame. An oyster bar should be someplace unpretentious. They’re fucking oysters man, you’re not cooking em. You shuck em. They try to lecture you on the flavor differences between species, and you’re looking at them like, yeah, I know, now shut up and shuck, honey.

    My vote for oyster experience in NY is Shafer City on 21st st.

  26. Gilmore, I don’t even like oysters, but your comment sold me. Great post.

  27. Er, wasn’t Caesar salad invented about a 100 years ago by a chef called Alexander Caesar?

    She should stick to Waldorf salad. Everyone knows that recipe (gratuitous Fawlty Towers reference).


  28. So at what point does this become a legitimate complaint? I understand mocking the idea that you could sue someone because you served food on plates before they did, but there is a point where if someone is replicating your design, menu, recipies, musical atmosphere, specialty drinks, uniforms, etc., there is a legitimate intellectual property issue.

  29. Dave, I hear you but a lot of folks around here think IP is a hose job. Not me, but I seem to be in the minority.

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