Whose Dish Is It Anyway?

October 08, 2019 Admin 0 Comments

When leaving a restaurant, chefs must often navigate the murky waters of whether they can take the dishes they created with them

Last spring, just as she made the semifinals for the James Beard Awards for the second year in a row, Butcher & Bee pastry chef Cynthia Wong lawyered up.

In 2016, the Charleston, South Carolina, restaurant had hired her — an alumna of Cakes & Ale and Empire State South in Atlanta — to build a pastry program with national significance, which she had done. She had signed with a literary agent. Moreover, she decided she wanted out of restaurants in order to build her own project around the ice cream treats shaped like fried chicken drumsticks she created at Butcher & Bee. But restaurant owner Michael Shemtov, she says, had made noises that he would keep serving ice cream drumsticks after she left. So before she gave formal notice, she hired an attorney.

“You work your whole life to create a catalog of things that are very stylistically tied to you, so the idea that you pass them up when you leave a job is absurd,” Wong says.

Who owns a signature dish: the cook who invented it or the restaurant that first put it on the menu? Most diners don’t particularly care, and on the other side of the kitchen wall, conversations about intellectual property tend to be informal at best. Yet this is changing, at least on the business’s side of the equation. Wong thinks cooks need to catch up.

But not everyone agrees with her. Vartan Abgaryan, chef and co-owner of Yours Truly in Los Angeles, which opened in March, says that when he moved on from his last job at 71Above, he had no regrets about leaving behind customer favorites like poached oysters topped with uni and caviar and a cured and whipped egg served over chorizo bolognese. “I was a person who was hired to do a creative job,” he says. “I got paid for that work. It belongs to them.”

The food he designed for 71Above, with its top-story steakhouse vibe, is necessarily different from his menu at a neighborhood bistro like Yours Truly. Besides, he adds, cooking is such a collaborative act. He told his sous chefs about his idea for the egg dish, and they refined the components and presented him with prototypes, which he helped rework. Would he even deserve sole credit for all that labor?

For Butcher & Bee’s part, Shemtov wrote in an email, “My position and the restaurant’s position is that if a team member develops something while working for us, and they can take that thing and generate success for themselves with it — be it a more senior or exciting role with a different company, or to create their own business — we do not try to stop them or stand in their way.”

He did point out his team spent thousands of dollars helping Wong develop and promote the drumsticks. “Once hatched, it (often) takes an ecosystem to bring an idea to the world, and for any chef who is not a sole owner and operator, that ecosystem plays a key role in the success or lack of success of a dish.”

The measure of success for a great dish has long been the extent to which it is mimicked. Only in the media-savviest, and often best-funded, stratum of restaurants do chefs claim the privilege of owning a dish. But in an era when Instagram broadcasts ideas across the world and a Chopped appearance can help an aspiring restaurateur reel in investors for years afterward, cooks have good reason to tell diners who came up with their favorite food.

Faced with sexual harassment lawsuits and labor shortages, that same segment of the restaurant industry is finally professionalizing, too. With formal rules come employee handbooks. And, more and more, cooks say, these handbooks inform them that the business considers their food “work for hire,” which, according to the U.S. Copyright Office, means “an employer is considered the author even if an employee actually created the work.” (Eater reached out to restaurant groups around the country, all of whom declined to share their handbooks or any explicit policy around recipe ownership.)

The courts don’t necessarily consider food intellectual property. The U.S. government refuses to issue copyrights to recipes, which it describes as “a mere listing of ingredients or contents, or a simple set of directions.” Some restaurants have argued their recipes are trade secrets. A few large chains use trademark symbols on their menus, which, if enforceable, only protect the name of the dish.

The attorney Wong hired, Steven Sidman of Carlton Fields in Atlanta, scoffs at some of the legal language he sees restaurants using. Merely calling a dish a “trade secret” or a “work for hire” doesn’t make either claim legally defensible. On the flip side, he writes in an email, a chef looking for legal protection for her best dishes faces the same problem. “The best practice would require her effectively to have to treat her dish as a trade secret, and take steps to protect the recipe from being revealed,” he writes. In short: Show no one and refuse to write anything down.

The fact that the laws are unclear doesn’t keep young cooks from encountering contracts they have to sign, language about intellectual property their employers tell them to read, and recipes they’re required to share with employers, without knowing what the ramifications of those actions might be.

It can be confusing. Less than a month after leaving her first executive chef position at Tartine Manufactory in San Francisco, Christa Chase is helping two friends open a bar in Oakland while she figures out what she wants to do next. As she looks to future chef jobs, she has been mulling over all the recipes she entered into the restaurant’s food-cost database. (Tartine confirms the database’s existence, but claims it has no language around recipe ownership in employee materials.) Can she reuse her favorites? She hopes so. “I have given myself a pep talk: I’ve created some really cool, delicious things here with a really great team, and I can do that again,” Chase says.

One of the rare chefs to publicly announce his signature dishes would leave with him is Kevin Tien, chef-owner of Himitsu in Washington, D.C., who dissolved his partnership with Carlie Steiner this month to open Emilie’s on October 10.

Not only does the menu erasure make it clear that he’s no longer at his old place, Tien says, he may permanently retire Himitsu hits like the Vietnamese-inflected hamachi crudo and the Korean fried chicken with biscuits from his own repertoire. “They’d still be great dishes,” he says, “but I think at the end of the day, the perception would be, oh, he’s just resting on his laurels.”

In early September, he met with the sous chefs and kitchen managers at Emilie’s to talk about what would belong to Tien’s business and what to the individual cook. “For me, when it comes to building a dish, there are multiple recipes built into it,” he told them. “I’m not going to ban you from doing any of those components. As long as it’s not an exact replica of the dish at this restaurant, it doesn’t really matter.” That position, he says, is now written down in Emilie’s employee handbook.

Wong says that, with employers asserting their ownership, young chefs need to discuss the idea of intellectual property with any prospective employer before taking a job. But the best way to claim stake to their most popular dishes may be to declare ownership early and often. Posting photos on Instagram. Talking about them to the media.

Maybe even giving them away. Tartine’s Chad Robertson, who has watched the style of naturally leavened breads he built his reputation on proliferate, says his own approach has been to put everything into his cookbooks. Before he published Tartine Bread, he says he decided, “Either no one’s going to care or a lot of people are going to make this ... and it’s going to push us and keep us on our toes.” The cookbooks document his past work, with a side benefit: Every baker around knows who wrote the recipes.

Wong said her lawyer and Butcher & Bee’s talked over nondisclosure agreements and lists of recipes she would leave or take over, but after a few weeks, the two parties let the matter drop. Meanwhile, she hustled to launch Life Raft Treats, her ice cream truck, in just one month and placed her desserts in local stores before anyone could serve knockoffs — relying on peer pressure to protect her in ways copyright law could not.

She hopes Life Raft Treats will be lucky enough to hire workers who come up with best-selling treats. If they strike out on their own, she intends to negotiate some licensing arrangement or send the dishes off with the employee with her blessing. “There has to be some sort of recognition,” Wong says, “that a paycheck doesn’t equal ownership of someone’s entire catalog of ideas.”

Jonathan Kauffman is a Beard Award-winning writer based in Portland, Oregon, and the author of 2018’s Hippie Food: How Back-to-the-Landers, Longhairs and Revolutionaries Changed the Way We Eat.
Kevin VQ Dam is an Viet American illustrator and printmaker in Oakland, California.