Copyright on the menu

This article was also published in the Financial Times.

From the moment I was handed the single sheet menu at A16, an extremely fashionable and popular restaurant on Chestnut Street in the very cool Marina district of San Francisco close to the Golden Gate Bridge, my eye was caught by the very last line. This reads ‘© 2008 All rights reserved A16 restaurant’, the very first attempt I have ever come across by the owners of an independent restaurant to copyright their menu.
Opened four years ago by a trio of partners, Shelley Lindgren, Nate Appleman and lawyer Victoria Libin, A16 takes its name from the motorway that runs east out of Naples through Basilicata and into Puglia, a region relatively unexplored by many restaurateurs, which not only inspires its menu but also its very particular wine list.
By concentrating on such an appealing but esoteric area its owners have ensured that A16 remains incredibly busy attracting not only those visiting the city keen on food and wine but also the many who live nearby. They have even managed to overcome the universal challenge of quiet Monday evenings by introducing a special, inexpensive dish called ‘Meatball Mondays’ which they serve as both a first and main course.
On the night we ate there the place was packed, so much so that A16 more closely resembled a frenetic New York restaurant than one in the usually more relaxed Bay Area. The reception area was crowded as was the bar just beyond. As we were led to our table towards the back of the restaurant it was just possible to squeeze between the tables on the left and those eating at the counter opposite the two wood fired ovens, one which handles their excellent pizzas, the other their main courses (and, of course, this being California, both in this otherwise authentic Italian restaurant were manned by Hispanics). These two ovens and the numbers they servemake this section of the restaurant very hot and equally noisy.
We ate and drank well. Their wine list is fascinating and they use their ovens effectively, most obviously for their pizzas, but also for a first course of roasted Monterey Bay sardines with Meyer lemons and Calabrian chilis and a main course of crespelli, Italian pancakes, stuffed with lamb, ricotta, tomato and pecorino. Only their pasta disappointed.
During the course of the meal I had asked A16’s manager about the copyright line but I got no reply. Subsequently I managed to speak to Libin a Vice President of Business and Legal Affairs with MTV Networks West Coast Digital with an expertise in intellectual property . Libin is also a founder, part-owner and business manager of A16 and its younger sibling SPQR, which specialises in the food and wine from the region around Rome.
Libin was quite clear about what she was setting out to achieve. “I believe that the design and non-descriptive wording of a menu may be copyrighted and therefore, given my professional background, it was instinctive for me to want to protect our menu’s look and feel. We have also trademarked our names and logos. My goal is to protect the look and feel and other elements that make the dining experience at A16 and SPQR unique so that others cannot trade on our goodwill.”
While I was wondering what possibility any restaurateur may have of enforcing this, a chance encounter led me to Vijak Toke, A16’s commercial lawyer and, subsequently, to a meeting in the offices of his law firm, Cooper, White & Cooper, in San Francisco’s business district. Ironically, for someone handling the modern face of restaurants, Toke’s office is located directly opposite Tadich Grill which, having opened in 1849 claims, with some justification, to be the oldest restaurant in California.
Toke is also an intellectual property lawyer with several restaurant clients who specialises in what he describes as ‘soft’ intellectual property i.e. trademarks rather than patents. He confirmed that this line is meant to convey to the world that A16 considers its menu protectable property and is forewarning everyone that it will do its utmost to protect that intellectual property.
And, like a good lawyer, he backed this up. Two cases from recent American law which had upheld copyright in a menu. The first, in New York, upheld the copyright protection in the overall design of Chinese menus in which photographs of the dishes appeared while the second in Kansas between the buyers of a Mexican restaurateur who had subsequently sued the daughter of the vendors after she had opened a competing restaurant and violated copyright in the order in which certain items were listed. The expression ‘three beef tacos’ could not be protected but a fanciful description that incorporated this dish could.
Toke, perhaps not surprisingly, believes that this can only be beneficial to chefs and restaurateurs. “The touchstone is the question of originality and creativity. What we believe can be protected need not necessarily be novel but it has to be original. And I am convinced that this will ultimately reward any and every chef’s creativity and to the extent that they can protect them, they should.”
I have to admit that, despite the California sunshine, I left Toke’s office very depressed. One of the distinctive features of the restaurant business internationally is that, in contrast to so many others, industrial espionage does not seem to exist and there are few trade secrets, if any. Recipes were shared even before the internet and head chefs welcome ‘stagiaires’, young chefs on a temporary placement, with commendable enthusiasm. Could all this hugely beneficial sharing of information soon hit the legal buffers, I wondered?
Fortunately, my concerns were dismissed during a conversation with Cecily Engle, a highly respected London based copyright lawyer. “ I certainly don’t know of any cases in the UK relating to the copyrighting of menu descriptions or layout. The law in the UK is very clear about his and no artist, whether painter, writer or musician, needs to affix a small c to their work as the copyright automatically belongs to them. In the same way the originality of the design and layout of a menu automatically belongs to the restaurateurs. Take the menu at The Wolesley, for example. As long as its owners have bought the design outright from whoever created it then that menu is theirs. I’m sure that there is a fair amount of copying of menu ideas but every industry has its different attitudes towards this type of thing and it can probably be resolved without going anywhere near a court of law.”
Engle’s opinions induced a great sense of professional relief. It’s a shame that the individuals who have created the world’s classic dishes that have given so much pleasure to so many – dishes such as beef Wellington, Caesar salad, escalope of salmon with sorrel, hare à  la royale or even crème brulée – are not as widely known as they should be. But like every enthusiastic restaurant-goer I am equally grateful that while they were so busy at their stoves the idea of copyrighting their dishes or their menus never occurred to them. Had they done so, the world would have been a poorer place.