Bread Battles Raise Questions About Intellectual Property And Recipes

from the not-this-again dept

Fri, Oct 17th 2008 5:36am — Mike Masnick

In this era where everyone wants to "own" unownable ideas and concepts, is it any wonder that there's more and more talk about the idea of extending copyright to other things? We've already discussed how the fashion industry has been agitating for special new "copyrights" despite the fact that their industry is thriving, in part because of the lack of protectionism in the industry. In fact, research suggests that adding such protectionism would significantly harm the industry, by slowing down innovation, decreasing competition and output.

A second area where we've seen stories similar to this is in the food industry. While we just wrote about the ridiculous story of Lebanon wanting official "food copyright" on hummus, falafel and other middle eastern treats, there are some chefs who take the idea of recipe ownership quite seriously. As it stands today, a recipe is not copyrightable -- though the description of how to cook the recipe could be. The list of ingredients, however, is factual.

But chefs are increasingly trying to somehow guard what makes them unique. We've already seen stories of restaurant owners suing former employees for opening up similar restaurants, but it's not clear what's illegal about that at all. If you think you can do a better job than your boss, then splitting off and forming a competitor is how innovation happens. Just look at the history of Silicon Valley, and you see this repeated time and time again. The traitorous eight famously quit Shockley Semiconductor to form Fairchild Semiconductor, because they didn't like how Shockley ran his company (as well as his decision that silicon wasn't worth pursuing). Without that we wouldn't have "Silicon" Valley. And, of course, from people leaving Fairchild, Intel was born.

But, for folks not in the tech industry, apparently these sorts of splits still seem controversial. My friend Tom sent over an article in The Atlantic about battles over bread recipes and bakeries in New York. Apparently, two partners at a bakery split up, and the author of the article expresses some concern over the "ownership" of the bakery's distinctive bread recipes. The article also notes a similar split between the partners of the famous Magnolia cup cake shop in New York, leading one to form a competitor with a similar recipe. Amongst these battles, though, there is one part regarding the bread makers that seems questionable and fraudulent (which happened separately from the ownership split). One of the bread distributors hired on some of the original bakery's employees and started baking its own bread, but used the name and logo of the original bakery, and then delivered the bread to restaurants without letting them know that it wasn't from the actual bakery. That's outright fraud.

But the good news in this story is that while it appears the "divorce" between bakery owners wasn't that pleasant, and the original owner isn't thrilled that there's a competitor in the space, he does seem to realize that there are better ways to go about dealing with the issue than trying to "protect" his bread (especially since his recipes are based on old Roman recipes). He actually notes that the bigger challenge is increasing the size of the "craft bread" market and taking away business from the big industrial bread makers. It's not about protectionism of a tiny market, it's about increasing the overall pie of the market he's in -- and that may even mean teaming up with his former partner with whom he split, noting that he's looking to form a Craft Bread Association, and will ask his former partner to be the first member. How refreshing.

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Filed Under: bakers, bread, intellectual property, recipes

21 Comments

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Zak, 17 Oct 2008 @ 6:22am

The small bakeries rock! Instead of fighting one another they should get together and - as it was said in the article - take away market from "the big industrial bread makers" that make utter garbage, not bread. One of the problems though is pricing. It's OK to offer a loaf for $8 on the upper East Side but it won't fly off the shelves at that price in most other areas so it can't compete with $1.99 loaf from Arnold's or Pepperidge Farms. Zak
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NSMike, 17 Oct 2008 @ 6:25am

Bread Battles Raise Questions?
Groan.
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TheCrut, 17 Oct 2008 @ 6:34am

Trade Secret?
There is a thing called a trade secret, think about KFC's secret recipe. It's just left up to the company to keep it secret.

BTW, anyone know a good site for downloading American Eagle Jeans? They're too damn expensive to actually buy...
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Daniel, 17 Oct 2008 @ 6:47am

Reverse Engineered Food
There is a restaurant in DeLand, FL called Cook's Cafe. They sell a delicious reverse-engineered soup, and they have a newspaper article about them winning a lawsuit to prove it.
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JV, 17 Oct 2008 @ 7:00am

Owning Food?
Sometimes I think when I read a Techdirt article about how people doing their best to own well just about anything, that there is a slight risk of feeling a slippery slope when there really isn't one.

At the same time, if our laws fail to keep sense of the changes in our world, we may end up with ridiculous patents, copyrights, and IP protections that could not only stifle innovation, but cause real problems.

It's a fun and slightly depressing thought exercise to imagine what would happen if a company could patent and horde the world's bread recipes.
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Cheapster McSavinstein, 17 Oct 2008 @ 7:04am

Copyright == Decreased Competition
These bakeries shouldn't be allowed to copyright their recipes, thats just a stupid idea. It would prevent someone from competing with them.

I think the large scale bakeries should start making the "Artisan" breads and put all these mom and pop shops out of business. If the big companies bake the breads we can get the same breads on the cheap because of their bulk buying abilities. Screw intelectual property, I'm all about the benjamins.
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Anonymous Coward, 17 Oct 2008 @ 7:09am

"It's a fun and slightly depressing thought exercise to imagine what would happen if a company could patent and horde the world's bread recipes."

A company (forgot its name) is already patenting food crop genes. The crops that are created from it then naturally spread to other fields, and said company then claims patent infringement.

Soon, they'll own everything you eat.
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Killer_Tofu (profile), 17 Oct 2008 @ 7:15am

Re:
"A company (forgot its name) is already patenting food crop genes. The crops that are created from it then naturally spread to other fields, and said company then claims patent infringement."

And the judge who said this is actually okay is an idiot.
Goes against all common sense. Not allowed to patent nature so I do not see why you can slightly alter nature and patent it. Yah they made some modifications but so what?
I have also heard of companies trying to patent parts of the human genome, which is making research in some of those areas really tough to progress. Holding back the whole effort. What a waste.
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Killer_Tofu (profile), 17 Oct 2008 @ 7:16am

Re: Owning Food?
"At the same time, if our laws fail to keep sense of the changes in our world, we may end up with ridiculous patents, copyrights, and IP protections that could not only stifle innovation, but cause real problems."

I believe that is what is happening right now these days.
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Christopher Smith, 17 Oct 2008 @ 7:25am

Re: Trade Secret?
This is exactly what I came to say. Despite the article's scornful tone about non-compete agreements, it's entirely reasonable for a restaurant with a great recipe to try to keep it secret, and even for the employees to have to promise not to take it with them.

The distinction that fails to be drawn is that in the case of a trade secret, it's perfectly acceptable for competitors to buy take-out and then try to figure out what the ingredients and recipe are; the seller has no obligation to make his recipe public (a la closed-source software). But if someone else independently figures it out, then they're free to use it as they will.
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Anonymous Coward, 17 Oct 2008 @ 8:22am

Pretty much all the recipes for bread out there have all been done ages ago, so I don't think anybody should be able to "own" the rights to a particular recipe. The whole idea here is who makes the best bread. You can give two bakers the exact same recipe and get completely different results. It's not like a computer program that will run the exact same way every time no matter what.

Baking is an art form, and being successful is all about training yourself to be the best there is. I happen to know a lot of housewives that are far, FAR better bakers than the ones running these big bakeries. I know commercial baked goods have their place, but I honestly think they could try a little harder to make decent stuff sometimes. Panera Bread is the only commercial chain bakery I've ever bought from that I thought makes really high quality goods.

As for secret recipes, sure, they're trade secrets, but if you don't protect them, that's your problem. Don't expect the court to shut everyone down who has a similar recipe, because it just ain't gonna happen.
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Beta, 17 Oct 2008 @ 8:26am

A small point of information
There is a lot more to baking bread than the recipe. Try looking up the classic recipe for french bread; now try baking a good loaf of it. A good bakery has good recipes, good ovens and other tools, good ingredients, but most of all good bakers. A more interesting question is what happens when an employee leaves with a thimbleful of the sourdough culture...
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Anonymous Coward, 17 Oct 2008 @ 10:00am

Re: Trade Secret?
"downloading American Eagle Jeans"

what century do you live in???!!!!
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Rekrul, 17 Oct 2008 @ 10:30am

"No soup for you!!!"
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Greg, 17 Oct 2008 @ 10:48am

I wanted to see a FOOD FIGHT!
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Carol, 17 Oct 2008 @ 11:03am

Let them have the recipe
I have been baking bread since I was 9 years old (I am 57).
I have given away recipes hundreds of times for all kinds of baked goods, but the folks who use them do not come up with the same bread I make. The years of experience are not in the list of ingredients.
Greed is taking over this country. What used to be freely traded for the good of society is now "owned" and proprietary.
I applaud the small bakeries trying to cooperate, because , in the long run, cooperation for the good of the society is, IMHO, better for the society than "ME!MINE!" ownership.
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Lawrence D'Oliveiro, 17 Oct 2008 @ 3:23pm

Re: Trade Secret?
Christopher Smith wrote:

...it's entirely reasonable for a restaurant with a great recipe to try to keep it secret, and even for the employees to have to promise not to take it with them.

Except that no such contract was agreed to in this case, hence no law was broken. Therefore there is no basis for any kind of infringement lawsuit.
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Joe Lanfort, 18 Oct 2008 @ 7:22am

Bread Battles
You're missing the point totally. The issue with the Hummus, Taboule and Falafel aren't with the recipe itself. It's the "appelation" itself. These are Lebanese origin dishes that are being marketed as Jewish dishes.
Can American wine producers market their sparking wine as American Champagne? No!
Greek Feta, for e.g. has to be called as such as it's a Greek-origin appelation.
A Chianti is a Chianti- can't be French Chianti or American Chianti.
So Lebanon is seeking to secure the Country of Origin rights for these dishes that are indigenous to that country, and were invented there.
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nyc, 18 Oct 2008 @ 2:31pm

Regarding comment #18. The extent to which "Geographic indicators" (such as "champagne" and "feta") are considered valid is based on several factors. For one, the name actually has to be of a GEOGRAPHIC REGION. Is there an area called, "Hummus, Lebanon?" Is there a town called "Babbaganoush?" If not, then no geographic indicator, a la "champagne." The second, major factor in granting this type of trademark monopoly is that the name must not have achieved GENERIC status. Considering that nations all over the world produce and consume falafel and hummus without thinking specifically of any single country suggests that the dishes are solidly in the generic category. The Lebanese lawsuit is one of the most laughable in current circulation. It is more fitting for an edition of the Onion than for a credible human being.
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S Ramos, 28 Oct 2008 @ 10:38am

recipes
I have a long term employee (19 years) who has created some great recipes for our restaurant. With a huge following we pack the house for some of these treasures. Sadly he is moving on to a smaller restaurant. He is tired of the stress and responsibilities of management. I don't blame him after 19 years at one place. My concern is he may use the same product and recipes at the new restaurant he is going to. This would not be good for us if he started a following there, taking away business from us. I have read about trying to protect employers from employees doing this but it looks like there is really no protection. Any suggestions?
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Joe Lanfort, 30 Mar 2010 @ 2:31pm

Re:
Your comment is not correct. There is an origin to these dishes that is traceable to Lebanon. Anybody around the world can consume falafel of course, but that doesn't change the origin of that dish.
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