when chefs leave restaurants

[mongo_jones]

this is inspired by recent news about suvir saran and hemant mathur's departure for amma.

do chefs generally sign over ownership of any recipes and menus they create for a restaurant (or while affiliated with a restaurant) to its owners? if not, do they explicitly retain proprietary rights? what happens when a talented chef who has transformed a restaurant's meny leaves it?

[bourdain]

what happens when a talented chef who has transformed a restaurant's meny leaves it?

Said chef takes any successful or "signature" dishes with him/her--as well as any other good ideas/recipes picked up along the way. Also the more talented of the kitchen staff.

[Carolyn Tillie]

Thus spake the horse's mouth...

Thanks, Tony - it is always a thrill to get the inside scoop...

[mongo_jones]

what happens when a talented chef who has transformed a restaurant's meny leaves it?

Said chef takes any successful or "signature" dishes with him/her--as well as any other good ideas/recipes picked up along the way. Also the more talented of the kitchen staff.

so, is this generally an informal "procedure"? have there ever been cases of chefs and restaurants suing each other for continued preparations of recipes each claims is indelibly associated with either the restaurant or the chef?

[RagallachMC]

Unless you trademark a recipe, I think you would have a hard time suing for sole use of that recipe.

The head chef at the place I work just left a little over a month ago. Before he left, he wiped all menus and recipes from the computer in his office (which didn't bother me since I had a hard copy of all of them anyway). Myself and the other Sous just rewrote the menu for spring, and I'm sure when the new chef comes in he'll rewrite it again.

[Moopheus]

I don't think trademark law will get you very far in protecting a recipe (maybe a unique name for a recipe). Copyright doesn't generally apply to recipes (ingredient lists and simple directions), so the only way to legally own a recipe would be either as a trade secret (which means you actually have to keep it secret, like the Coke formula), or as a patent (sometimes done for processed food formulas). Practically speaking, in most situations, I'd think that as Mr. Bourdain said, chefs are pretty much free to use whatever is in their heads whenever they want.

[stovetop]

That is why so many restaurants go down; new chef, new menu; new menu, new restaurant; new restaurant, bye bye, done like dinner.

It is better to be a chef and hire a chef, you are still always front and center, the chef works for you, the menu is the restaurants, the chef has some creative room, but it is still your restaurant, so when buddy goes bananas and takes the crew with him, you still can have somewhat of a restaurant, The recipes are the restaurants and if you can save a few of the crew you are back in business, you can cook until you find another monkey.

Do not feed the animals!

stovetop

[lleechef]

Last restaurant I left, I took the recipe book and wiped them off my computer. My sous chef and four other cooks followed me to the new restaurant. Just part of the resto biz.

[Bux]

The recipes--the final results, not the wording--cannot be copyrighted and there's many a restaurant that still serves it's version of the original chef's dish long after he's gone. They may even serve a more authentic version of the dish than the original chef now prepares at his new restaurant. More authentic, not better as the original chef may have made improvements.

[Suzanne F]

The recipes--the final results, not the wording--cannot be copyrighted and there's many a restaurant that still serves it's version of the original chef's dish long after he's gone. They may even serve a more authentic version of the dish than the original chef now prepares at his new restaurant. More authentic, not better as the original chef may have made improvements.

Has anyone here ever heard a piece of music by Alvin Lucier titled "I am Sitting in a Room"? It begins with a tape of a person reading the words "I am sitting in a room, different from the room you are in now . . ." The tape is played back into the room and the sound from the playback is recorded, and then that tape is played back, and THAT tape . . . over and over, until the words are long gone and very little identifiable sound remains, just the vaguest outline of tone and overtone.

That's been my experience staying on after the chef left. The way the chef's dishes were prepared -- a tenuous attachment at best even with the chef's presence -- drifts farther and farther from the original. The plating may change, because there's no one to make sure the plates look just right. The accompaniments may change, because one day the purveyor can't supply the right ingredients, and the new person in charge says, So what? The dish changes, not for better or worse, or greater or lesser "authenticity" -- it just changes because there's no reason for it NOT to change.

Sure, the recipes are probably all still there, but there's no one to enforce their correct use. So the food drifts, until the new chef exerts his/her influence and makes substantial changes in the menu.

[KatieLoeb]

Even if not copyrighted, couldn't recipes be considered intellectual property?

[bbq4meanytime]

Even if not copyrighted, couldn't recipes be considered intellectual property?

Sure it can be intellectual property, but the questions is can you legally protect it as such. Intellectual property (IP), depending on its nature, is legally protected in one of three ways: copyright, patent or trademark...this is long legal discussion and its outside my legal expertise.

[balmagowry]

Even if not copyrighted, couldn't recipes be considered intellectual property?

It sounds sort of screwy, but here's how it works: the content of the recipe, i.e. the information contained in the list of ingredients and the instructions, is not copyrightable intellectual property; but the expression of that information, i.e. the language in which it's written, is. Gets tricky in the case of the ingredients list, because if two versions of a recipe are written to the same style requirement (say, both adhering to that contained in Recipes Into Type, which is what I happen to follow), you won't get all that much variation in the expression of the ingredients - the two versions could quite likely be identical without overstraining credulity. But if the language in the instructions is identical it starts to be too much of a coincidence. The headnote, note, and variations are where a writer really has scope for individual style and ideas, and where it would be easiest to demonstrate an actual copyright violation.

[lala]

Interesting...I was always told that anything a chef/cook created while being paid by a restaurant was a "Work for Hire" (or something like that), and is the property of the Restaurant Owner. This is how several of my creations were used in cookbooks published by the owners of restaurants where I worked, with no attribution to the staff (myself and others) who created the recipes.

However, in reality, I am aware that Chefs/Cooks do take recipes (and staff!) when they leave. Heck, I've done it, and have gone so far as to give the owner (a real jerk, in this instance) the 'recipe' written incorrectly - not obviously, but enough so that it wouldn't work. This was for baked goods, so I made sure the chemistry was off... I found that far more entertaining than just taking the recipes with me!

As for copyright law, it's so squishy in regards to recipes that almost anything goes. Here's a link to the applicable gov't site:

http://www.copyright.gov/fls/fl122.html

[balmagowry]

Interesting...I was always told that  anything a chef/cook created while being paid by a restaurant was a "Work for Hire" (or something like that), and is the property of the Restaurant Owner. This is how several of my creations were used in cookbooks published by the owners of restaurants where I worked, with no attribution to the staff (myself and others) who created the recipes.

The restaurant owners in those cases were right, alas, but for the wrong reasons. You may have been working for them at the time, but that didn't make your actual recipes work-for-hire; it made them unprotectable, as they were anyway, so the restaurants had every right to use and to publish them - and over and above that to claim, accurately, that they were created at/for the restaurant in question. BUT there's a converse to that coin: unless you have a specific contractual obligation that precludes it, you have just as much right as they do to use and to publish any recipe that you created. (Furthermore, you have a much greater right than they do to claim it as your own invention.) Short of such a contractual understanding, the only case in which either of you would have grounds for taking action against the other would be if one of you had copied the other's wording - i.e., what the applicable law refers to as "substantial literary expression."

As for copyright law, it's so squishy in regards to recipes that almost anything goes.

Can you explain what you find squishy about it? It seems perfectly clear-cut to me. In fact, the page of copyright law you cited agrees perfectly with my understanding of the whole thing (as well it might, since that is how my publishers originally explained it to me, and you can bet that they were working from the same document). I'm afraid that what's really squishy is the ethics of your former employers, if they tried to make you believe that they had exclusive rights to any of your work. In fact, even if you had signed an agreement to that effect, I suspect it would be unenforceable.

[lala]

"Mere listings of ingredients as in recipes, formulas, compounds or prescriptions are not subject to copyright protection. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a combination of recipes, as in a cookbook, there may be a basis for copyright protection. "

The squishy part is 'substantial' literary expression. I have a friend who works for a recipe web site that uses recipes from members. The editorial staff has to check each recipe in this regard. Say, you have a recipe for a cake, made by creaming

butter and eggs, and add dry and wet ingredients alternately. These directions are not really subject to copyright, due to it being a common 'literary expression' - ie: common recipe procedure. So those directions cannot be copyrighted. The directions must be more complex and unique. Of course, as the quote above states, putting these recipes into a specific format/combination creates a new entity, which can be copyrighted as a whole.

This is how I understand it, but you are better positioned than I am in this matter. so if I'm wrong, please correct me.

I appreciate your concern about the recipes that I created . I have not personally published any recipes (yet?!), but your input gives me hope. And yes, unfortunately, the person I'm thinking of is a bit unethical, but she's a famous 'chef' and author, and is still publishing cookbooks with recipes that others have created. I worked for her years ago, and have happily forgotton the overall hell of being in her employ...

[Jinmyo]

So then my "raw fish on vinegared rice" and "rare striploin steak" and "tubular pasta with melted cheese" recipes are not copyrightable and I won't make a fortune in royalties...

How about my "minced beef formed into a patty and fried, served on a round wheat bun with condiments"?

No?

Bummer, Dude.

[balmagowry]

"Mere listings of ingredients as in recipes, formulas, compounds or prescriptions are not subject to copyright protection. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a combination of recipes, as in a cookbook, there may be a basis for copyright protection. "

The squishy part is  'substantial' literary expression. I have a friend who works for a recipe web site that uses recipes from members. The editorial staff has to check each recipe in this regard. Say, you have a recipe for a cake, made by creaming butter and eggs, and add dry and wet ingredients alternately. These directions are not really subject to copyright, due to it being a common 'literary expression' - ie: common recipe procedure. So those directions cannot be copyrighted. The directions must be more complex and unique. Of course, as the quote above states, putting these recipes into a specific format/combination creates a new entity, which can be copyrighted as a whole.

Ah - OK, I see what you mean. Yeah, in that sense it is sort of squishy, insofar as it's open to interpretation. But here's another way to think about it: the real problem is the division of labor between the protectors of different types of intellectual property, and the fact that recipes straddle that divide.

I don't know much about patent law (if someone here does, please jump in and set me straight if I get this bit wrong!), but consider for the sake of argument that a recipe in its most basic form is analogous to a scientific formula. OK, so you invent a new and unprecedented cake; in theory the cake is eligible for patent protection, and that patent is secured by means of a document containing the scientific formula for the cake's manufacture, i.e. the list of ingredients and the instructions that enable someone to put them together and reproduce your invention. That's theory - in real life it's got to be either impossible or damn near impossible to patent a cake; nevertheless that is where the dividing line falls: in theory your creativity as a baker, then, is protected not by copyright but by the patent protection afforded to the object which you have baked.

The reason it is feasible under certain circumstances, then, to copyright a recipe or a collection of recipes has little to do with your creativity as a chef and everything to do with your creativity as a writer. I hold copyrights on a bunch of historic recipes which I do not claim to have invented - my intellectual property consists of the way that I have grouped them to illustrate certain points, the things I have written about them as a collection, and the things I have written in the course of adapting them for my purposes, all original content which transcends the spelling out of a formula.

Here's a somewhat heavy-handed illustration. My mother and I wrote a recipe for a gratinee of lobster which was served in a particular historical context; we didn't presume to invent the dish itself, though we did combine some ideas from different sources to suit the scenario. At the end of such a recipe, one might choose either to discard the legs or to use them for garnish; we chose the latter course. OK, so what does the recipe say? If it said "garnish with the legs" it wouldn't stand much chance of copyright protection, because that is the kind of neutral language that belongs in a patent document. What it does say, however, is "garnish amusingly with the legs." That one word makes an enormous difference; first, because it has no place in a patent document - it doesn't add anything to the functional definition of the object; second, because it is a highly characteristic expression of our personal writing style. If you ever run across that combination of five words anywhere else, either it will be one HELL of a coincidence, or you will know that someone has read and copied - NOT what we made, but what we wrote. And that's where the copyright violation comes in.

Obviously a lot of cases are less clear-cut than that one, and that's where things can definitely get squishy - equally obviously, the clarity of your recipes won't benefit if you are constantly preoccupied with stating their every detail in as original and characteristic a manner as possible! But you own the truth (in the sense that you have a unique personal experience of the process of invention) and you own your style and nuances, and there are any number of ways to set a personal stamp on the document.

I appreciate your concern about the recipes that I created . I have not personally published any recipes (yet?!), but your input gives me hope. And yes, unfortunately, the person I'm thinking of is a bit unethical, but she's a famous 'chef' and author, and is still publishing cookbooks with recipes that others have created. I worked for her years ago, and have happily forgotton the overall hell of being in her employ...

As long as you haven't forgotten the recipes themselves! She may have published them first, but she doesn't own them. If you have ever explicitly signed away your right to use and publish them yourself, then your position becomes dicey; short of that, though, you're in the clear as long as you don't copy her personal style and expression. And it sure doesn't sound as though you're remotely likely to do that.

[EDIT: clarity]

Edited April 16, 2004 by balmagowry (log)

[balmagowry]

So then my "raw fish on vinegared rice" and "rare striploin steak" and "tubular pasta with melted cheese" recipes are not copyrightable and I won't make a fortune in royalties...

Don't see why not, Dude. Just write them out in verse, with a few deftly-chosen adverbs and anecdotes scattered tastefully about, and yo! instant riches (not including subway fare).

How about my "minced beef formed into a patty and fried, served on a round wheat bun with condiments"?

No?

Um, no. I've seen the patent documents on that one, complete with blueprints. But maybe you could, like, substantially improve it by setting it to music. Then you could get rich just renting out the orchestra parts.

You might want to make the piccolo a separate deal, though.

[Pan]

You might want to make the piccolo a separate deal, though.

Yeah. And hire me.

[balmagowry]

You might want to make the piccolo a separate deal, though.

Yeah. And hire me.

Yeah, that'd really give new meaning to "hold the piccolo," wouldn't it....

[herbacidal]

You might want to make the piccolo a separate deal, though.

Yeah. And hire me.

Flute. Piccolo. Is there a woodwind instrument you don't play?

[balmagowry]

You might want to make the piccolo a separate deal, though.

Yeah. And hire me.

Flute. Piccolo. Is there a woodwind instrument you don't play?

(Shhhhh... I think he's asleep.)

Prolly anything with a reed - or two. But most flutists double on piccolo... if they're smart....

[Moopheus]

Interesting...I was always told that anything a chef/cook created while being paid by a restaurant was a "Work for Hire" (or something like that), and is the property of the Restaurant Owner. This is how several of my creations were used in cookbooks published by the owners of restaurants where I worked, with no attribution to the staff (myself and others) who created the recipes.

Generally speaking, it's true that anything you create at work belongs to your employer, to the extent that they could be said to own it. But the basic formula of the recipe can't owned that way. They could try to claim it's proprietary information (trade secret), but if they're publishing the recipes in cookbooks, that negates that argument. As Balmagowry points out, getting a patent on an ordinary kitchen recipe would be difficult; it wouldn't be seen as sufficiently novel. If you invented a really new cake-making process, that might be patentable.

Another point to remember is that copyright wouldn't prevent anyone from using the recipe in a kitchen.

Also, copyright or not, it's still bad form not to give credit where credit is due in cookbooks.

[balmagowry]

Generally speaking, it's true that anything you create at work belongs to your employer, to the extent that they could be said to own it. But the basic formula of the recipe can't owned that way. They could try to claim it's proprietary information (trade secret), but if they're publishing the recipes in cookbooks, that negates that argument.

Oh, well put. I'm glad you said that - I wanted to say something sort of analogous in relation to patents but it didn't fit there.

Hmmmm. I wonder about the trade secret argument, supposing they had not published it but only continued to use it. Could they really claim exclusive rights to its use? I still think you'd have to be bound by a pretty stringent work-for-hire NDA for that to stand - but maybe it actually is implicit in the working relationship. In that case the best tactical advantage of the chef is that of having invented it and being able to develop it a bit further after the fact - change the name and just enough of the recipe to make it demonstrably distinct from the original, and I don't see what they could do. That and the fact that the chef's successor will undoubtedly change it in the execution because no two people follow a recipe exactly the same way (um... do they?), and if the new chef has any pride at all he will surely want to set some stamp of his own on the territory.

Also, copyright or not, it's still bad form not to give credit where credit is due in cookbooks.

Damn right! Or indeed, where possible even in a restaurant setting, supposing one were really honorable. But I think it's pretty clear ex hypothesi that that is not a salient attribute of the people lala has described!

EDIT: NDA = Non-Disclosure Agreement - but actually I think in that context it would have to be something more like a Non-Compete Clause. Do restaurants have 'em?

Edited April 16, 2004 by balmagowry (log)