Kruse Company president Nancy Kruse asks whether chefs should be able to legally protect their culinary creations.
It has always been the case that restaurants are easy pickings for customers bent on larceny, the ones who make off with costly mementos of their visit. We’re not just talking sugar packets here: Restaurateurs regularly report the loss of everything from fine glassware and silver to artwork and even furniture. And the back of the house can harbor sticky-fingered miscreants, too, in the form of employees who pilfer food and supplies.
While this bad behavior is aggravating, arguably stronger emotions may be stirred by a restaurant competitor who steals recipes. This kind of violation cuts to the core of an operation’s identity and has given rise to some heated rhetoric. Earlier this year, the New York Post ran a story about what it dubbed “copycat cuisine” and detailed the legal battles enjoined by chefs who feel that their dishes have been ripped off.
Restaurant recipes can’t be copyrighted, though other elements of the operation, called trade dress, can lawfully be protected, like logos, signage and interior décor. There are regular skirmishes over infringement whenever the resemblance between two operations becomes too close for comfort. But chefs don’t enjoy such protection and find themselves crying foul when a dish of their invention turns up on someone else’s menu.
Or at least some cry foul. Others shrug off the imitation as flattery, as did notedEric Ripert of Le Bernadin in New York City after a complex and sophisticated dish that bore marked resemblance to one of his own making surfaced on a rival bill of fare. In fact, Ripert himself admits to borrowing ideas from others, notably chef Ferran Adrià of Spain. Adrià, founder of legendary Spanish restaurant elBulli, believes that chefs should freely share recipes and ideas. He plans to put that belief into practice with his proposed Bullipedia, a digital search engine for kitchen pros that will promote idea sharing “from everyone for everyone.” It’s a concept that’s open-minded and open-hearted, but it gives me pause.
The law protects works of literature, and musicians regularly file suit over melodies that too closely echo their own. But chefs have little recourse when someone pirates their culinary creations. In the chain context especially, it can take years of trial and error on the part of both the operator and the supplier to bring a new product to market. Their chagrin at being knocked off is understandable.
On the other hand, the restaurant world has gotten pretty darn small, with participants tracking the same trends, responding to the same inputs and influences, and using the same ingredients. Seen in that light, it’s understandable that the same item would turn up in two different venues with absolutely no malice. And, as important as a signature item may be to the patron, it’s only one element of his or her overall dining experience, which may owe just as much to factors like service, ambiance or the bar program.
Still I’m left a little conflicted, Bret. Should chefs and recipe developers have the right to protect their recipes? Or do you agree with Eric Ripert, that from the gastronomic point of view, everyone is taking their inspiration from their best-in-class peers? In a restaurant industry where there really are no culinary secrets, is menu plagiarism just the cost of doing business?
Nature of food unlike other creations
The following is NRN senior food editor Bret Thorn’s response to Kruse Company president Nancy Kruse’s take on culinary copycats.
Nancy, in the past I’ve shrugged off the notion of dish theft as the whining complaints of the unconfident. But you raise some interesting points. Whether you consider cooking to be an art or a craft, those forms of expression, from paintings to shirt designs, are generally protected from copying.
Why not food?
I think part of the reason for the food free-for-all stems from the fact that food didn’t used to change very much, especially in restaurants. For decades in the United States, diner food was chicken, meat loaf, roast beef, hamburgers, pancakes and scrambled eggs, and fine-dining food was the French haute cuisine of Auguste Escoffier. There was nothing to steal, so there was no legal or customary framework to discourage theft.
I’m not a lawyer, but maybe that’s why we’ve seen so few legal tussles among restaurant chains when it comes to food, even when they show complete willingness — even eagerness — to go to court over other issues.
If you come close to using Chick-fil-A’s signature “Eat Mor Chikin” slogan, you’ll get a cease-and-desist letter in less time than it takes to eat one of the chain’s sandwiches. But when Church’s Chicken, McDonald’s and other chains came out with sandwiches of breaded fried chicken breast in a bun with a pickle, Chick-fil-A remained silent. Burger King’s Big King burger, a double-decker sandwich of two all-beef patties, “King sauce,” lettuce, cheese, pickles and onions on a sesame-seed bun, was recently added to the permanent menu, but McDonald’s hasn’t said a thing about the sandwich’s suspicious resemblance to the Big Mac.
Then there’s the nature of chefs. Trained in hospitality, inherent nurturers, most of the ones I’ve met share Ripert and Adrià’s desire to share what they know and thus make the world a happier, better-fed place. It’s a rare occasion indeed when I interview a chef who doesn’t want to tell me precisely how he or she makes something, at least in the independent world. Research and development chefs at chain restaurants tend to be more guarded, but that leads me to my next point: The nature of food.
Food is made to be destroyed. Other ephemeral works of art, such as musical performances, can be recorded and reproduced. Even if nothing beats a live show, a facsimile of it can be preserved and, I suppose, used as evidence of copycatting. Food can be photographed, but it can’t be re-tasted or smelled again. And it takes more than a great recipe to guarantee consistency. A chef can tell me exactly how to make something, but I still need to know how to cook to reproduce it even once. To make it the same way over and over again during a dinner rush requires a great back-of-the-house staff, consistent suppliers, and the sorts of operational systems in which chains and R&D chefs excel.
Making magic happen in a kitchen requires skills that are learned over years of experience and by teams that require continuous dedication to develop and reshape. You can try to copy someone else if you want to, but running a professional kitchen is a lot harder than it looks.
Maybe that’s why most chefs, when they see someone else trying to do what they do, seem to quietly wish them luck and go on with their lives.
Nancy Kruse, president of the Kruse Company, is a menu trends analyst based in Atlanta and a regular contributor to Nation’s Restaurant News. E-mail her at firstname.lastname@example.org.