In this, Part II of our series on “What does it takes to be a private chef?” we will examine that most elusive of creative kitchen questions: Is a menu or recipe for particular dish created by a particular chef copyright-protected? Is it permissible to copy a chef’s menu? Is it legal?
While this certainly is not a new question, it is one that comes up with much greater frequency, not just because the Internet makes restaurant menus widely available on-line, even from Michelin star chefs; but with the advent of a plethora of “dining alternatives”, from services like Kitchit Tonight, which use “chefs” to heat up and plate dishes from chef-developed menus (food is prepared in a commissary kitchen) in their customers’ homes to community-dining sites like Feastly and EatWith, more and more private chefs find themselves competing on the same site for the same customer. And, as many chefs have found out, there is little or nothing to stop a potential host from “shopping” a menu they received from one chef to another, in search of the most bang for their buck.
All of which begs the query: what is a chef, really?
Chef Josh Garcia of Private Chefs of the SF Bay says, “It all begins with the menu”, which takes us back to the title of this article. A chef designs a menu based on their repertoire of recipes, and prepares or oversees the preparation of that menu. The chef’s understanding of flavor profiles, seasonality and cooking methods as they apply to the kitchen he or she is using (in the case of a private chef cooking in your home, for example) very much determines and is reflected in the menu he or she designs. Menu development is at the core of what a chef does, as is recipe development. Chefs kitchen-test recipes and refine them, and re-test and refine again– all long before a dish appears on a menu and is served to you and your dinner guests. So how to protect this creative process? Do copyright and intellectual property laws apply? While “in recent years, a handful of chefs and restaurateurs have invoked intellectual property concepts, including trademarks, patents and trade dress — the distinctive look and feel of a business — to defend their restaurants, their techniques and even their recipes” (NY Times) this has applied to restaurant chefs with a physical address and/or printed menu with specific design flourishes, not to private chefs. According to Justin Massa, founder & CEO of Food Genius “The text, layout, format, and data schema (if published on the web in some proprietary format created by the restaurant owner) are all the intellectual property of a restaurant owner”. But what of the private chef?
While the recipes a chef develops are not subject to copyright law (that is, the list of ingredients is not), the method of preparation used to create a unique dish from those ingredients can be. So if you hire Chef B to make a dish that originated with Chef A, you should not expect the dish will be the same. The ingredients may or may not be, but what the chef creates from those ingredients, which is the heart of the matter, will surely differ and that difference will be palatable.
What about plating style?
So far we know that a chef is a menu-designer and recipe-tester and developer, long before he or she takes knife to hand. Next comes that kitchen magic that only years of experience can teach. And finally, to the plate. So is a particular plating style, perhaps, something that can be protected? This brings us to the question of “trade dress”. According to intellectual property law attorney Naomi Strauss, as quoted in a Dec. 2012 article by Amy Mceever in Eater, “Trade dress is a form of trademark. You can use your trademark to protect your brand name, to protect your logo…. Trade dress has also expanded to protect things like interior [restaurant] design”. So what about plating? While Strauss focuses on the restaurant industry, where she argues that “another possibility for protecting restaurant dishes … [is] a small expansion of trade dress to cover the plating of restaurant dishes [as] an ideal way to codify existing norms” (UCLA Law Review on Trade Dress Protection for Cuisine), its not a huge stretch to apply that same expansion to cover private chefs. Her argument is this: “Yeah, I mean, if we can protect the way a restaurant looks, why can’t we protect the way that the food in the restaurant looks? This isn’t really established at all, but there’s a possibility of analogizing to other cases to show that if it’s a signature dish that people really associate with the particular chef and it looks a specific way, that could theoretically be protected as trade dress,” but likely only if a chef has a well-developed brand, Strauss suggests. It is possible that if this comes to be, then the expectation would seem to be that, at least in practice if not in law, plating-style could protect the high end, well-established chef, working in or outside the restaurant, from copycats.
So where does this leave the private chef in terms of protection? Maybe nowhere, yet. But with an industry burgeoning the way private in-home dining is, expect to see changes soon. If plating becomes subject to trademark laws, it could apply to private as well as restaurant chefs. In the meanwhile, be aware of the way your meal is designed and who created the menu and who is cooking it.