This New York Times article, about a restaurateur who's suing her former sous chef for opening a competing restaurant that copies her own in many respects, is more than a little astonishing. First, because it ends on this brazen note:

Ms. Charles has come to think that if this case forces Ed’s Lobster Bar to change until it no longer resembles Pearl Oyster Bar, it could be the most influential thing she has ever done.

"I thought if I could have success with this lawsuit, that could be an important contribution," she said. "If some guy in California is having problems, he could go to his lawyer and look at this case and say, 'Maybe we can do something about it.' "

That's right — you'll be doing a huge favor to humanity by bringing IP litigation to the world of foodservice in order to protect your business's margins. Thanks a ton, really. But a word of advice: they say it hurts your chances if you campaign for the Nobel outright.

Second, there's the article itself, which completely ignores the well-settled legal questions involved. The closest the article comes to saying "recipes absolutely, unequivocally cannot be copyrighted" (as it ought to) is quoting another restaurant owner who laments, "You can’t protect recipes, you can’t protect what a place looks like, it’s impossible." That makes it sound like the system is stacked against him protecting his rights — instead of the system explicitly saying he can't assert IP rights over other people's cooking, which is the actual situation. And for what it's worth, the article implies that trademark law can protect what a place looks like — I'm pretty sure that's right, the McDonald's clone in Coming To America notwithstanding.

All of this ignores the public domain innovations that Ms. Charles benefits from, royalty-free: the cocktails her bartenders serve, the system of reservation-making she presumably employs, and, most amazingly, the Caesar Salad recipe that she says her mother got from another restaurant, but which she's now suing her sous chef for using. Diffuse borrowing seems to be okay; borrowing too much from one place isn't, I guess. But where do you draw the line?

The story mentions that nondisclosure agreements are coming to more and more kitchens, but fails to point out why this is: as screwed-up as our IP system is, it actually dealt with these questions before the food industry was sufficiently powerful to corrupt the process. That's why lawyers are now trying to shove all of this stuff into contract law, where you can get away with much more. In other words: it's because the sorts of claims Ms. Charles is making are untenable under IP law.

There's no question that the sous chef is being tacky by copying Charles' restaurant, but it would be very silly to open a Pandora's box by punishing him for copying paint colors. IP laws are there to encourage people to make new things; the market's there to get them to make those things better. These distinctions can get blurry in the world of novel cuisine. But restaurants are fundamentally in the business of selling food, not seeking rent on ideas about food. This story is asinine, and Pete Wells would have done better to highlight how stupid everyone involved is being instead of just making the guy getting sued sound like a jerk.