Rights to recipes

Discussion in 'Food & Cooking' started by brfarr11, Jun 16, 2012.

  1. brfarr11

    brfarr11

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    Hi - first off - sorry about the typo in the title.. (Fixed it for you)

    I own a small food business that's been very successful in our market.  I hired my chef and he developed all recipes while being paid by me, working at our place.

      He had previously written down- at my request for need of redundancy - Some of our recipes, but they are dated, and many are missing, the recipie evolved etc.    

    He's now leaving to moving away to another state due to his wife's job, he's now being asked to document all recipes.

    The issue:     I'm being asked for 6.4 thousand dollars for 32 recipes and methodology - which will comprise all the elements to our handful of different dishes .  I offered to comp him for the hours it would take (at his normal pay rate) to put what's in his head, down onto paper.  He says the recipes are his property and  wants to sell back to me instead.  One of his professors at A I had asked him, "What are you going to Do with your recipes (upon leaving)- you can't just give them away.." 

      He says it's common place for chefs to get paid - up to $200/recipie.  I said, "if you were a scientist at Pfizer, and came up with the formula for a cure for cancer while on their Salary -  do you think You'd own the formula or Pfizer?  They aren't going to buy the formula from you. It's theirs."

    I'm not even asking that he Not use them elsewhere when he moves - though that would be nice.  I'm asking that I SHOULD get the info that's in his head, so we can continue to be at the top of our game.

    Who is right here? How often are chef's paid out for recipes in their head?  Under what circumstance are they paid for, or not.   - wouldn't they be only comped on special recipes they had and are bringing to the table to use, not ones developed on the company dime?

    I'm open to being wrong on this one.. but I just want to know honestly what the story is - since this is my first food business.

    Again - I'd pay him @ salary for his time to put them down on paper.  Seems like that's documentation that should have been done through the course of work anyhow..   
     
    Last edited by a moderator: Jun 19, 2012
  2. cheflayne

    cheflayne

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    In my opinion, yes you are correct on that issue. However, not trying to be harsh, but whose fault is that he didn't do his job, as envisioned by you, on that issue. Detailed written job descriptions and follow through to ensure that duties are being complied with and completed fall in your lap as owner.

    I know that doesn't help you in this particular situation, but hopefully you will be better prepared for the next time you hire a chef. I have never taken well to being held hostage, so I would probably refuse to pay him any additional money above his current pay. Personally I think right to and anything close to resembling magic secret recipes are a load of crap anyway.
    I have always freely given away any recipe without worry or concern. It is impossible to steal my creativity. I can always come up with something else. I like to operate on the principal of sharing.
    If possible, save physical samples of the current recipes and when you get a new chef, if they are worth their salt, they should be able to replicate.
     
  3. boar_d_laze

    boar_d_laze

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    A cooking forum is not generally a good place for legal advice.  In terms of expressly NOT LEGAL ADVICE nuggets of general knowledge: 

    1.  The question of who owns rights of any sort to complete, current written recipes is complicated by the fact that they don't exist.  Unfortunately for you, that's the sort of thing even judges and arbitrators notice.

    2.  If you want to negotiate another contract you're free to do so.   He's free to ask a ridiculous price.  If he doesn't work for what you want to pay, oh well.  There's no slavery anymore.  You can't force someone to work on your terms.

    3.  You have whatever rights to complete, current written recipes your contract gave you.  Since it's pretty clear the subject wasn't covered in your oral or written agreements, you have NO rights.  Furthermore, you've set the value of the complete, current written recipes as his hourly rate times the amount of time it would (or should) take him to write them down.  So even if you could arbitrate or litigate and prevail, (a) you still wouldn't get the recipes (no slavery, remember); and (b) you're reimbursement would probably be limited to something like $20/hr X 6 hrs.  If I were arbitrating the dispute, that's how I'd compensate in the unlikely event I found in your favor. 

    4.  Had you asked for complete, current, written recipes earlier in your relationship, you could have fired him for refusing to comply.  You can still fire him for his refusal, but it won't do you much good.   Your only leverage is as a future employment reference.

    5.  Be like Satyr Budweiser.  Don't let this happen again.  Next time stay on top of what's going on in the kitchen.  It's not the chef's fault if you don't.

    6.  Finally, take heart.  Unless you're food is wildly original and idiosyncratic, chances are that "recreating" recipes as good as what you have will neither be particularly difficult nor expensive.  Try and get someone competent to at least taste everything before your current guy leaves.  Better still if you can pay him (the old guy) to stay another few days and train.

    7.  Don't ask for legal advice on a cooking forum.

    8.  I mean it.  Don't ask for legal advice on a cooking forum.

    Too soon we get old.  Too late we get smart.

    BDL
     
    Last edited: Jun 16, 2012
  4. iceman

    iceman

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    [​IMG][​IMG]

    OK. So here are two(2) examples of cookbooks made directly of the restaurant recipes. I don't at all think Thomas Keller has any concern if anyone uses his recipes. After having worked in The French Laundry for a while my reply would be "good luck with that".  At all the places that I've worked it's been never a problem with recipes. Basically you can just have at it when I'm gone. I can't think of any good chef I've known that just uses someone else's recipe without thier own tweeks thrown in. I guess I'd even call it complimentary for a chef to use my recipes. Don't worry about it. If you're doing good business you'll continue doing good business. Improvise, adapt, overcome. 
     
    Last edited: Jun 17, 2012
  5. duckfat

    duckfat

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    There's not a snowballs chance in a hot oven that I'd ever write proprietary recipes on a normal hourly rate.

    Just because I may work for you you don't hold title to my creative thought unless we have an employment contract that details my obligations.  I expect you already know that would have meant a larger salary for the Chef and legal fees to draft the agreement.

    At some point once you became a viable entity you should have negotiated with your Chef to write a SOP manual including recipes that would be your property as well as a no compete covenant.

    The chances of your Chef staying on a few extra days and training a new Chef when he/she is trying to extort $200 per recipe is probably nill.

    IMO you are both being unreasonable.

    It is unrealistic to expect some one to perform as a contract employee with out the contract or salary to match.

    It is unrealistic for the Chef to demand such a sum unless your recipes are exceptionally unique.

    I'd either try to meet in the middle on a severance package but under no circumstances would I pay even five bucks with out a rock solid no-compete covenant and a contract your advisers put together so you know you have all your Ducks in a row.

    Personally I would have sent him packing the minute he asked for $6400.

    Dave
     
  6. chefbuba

    chefbuba

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    Well said.
     
  7. pohaku

    pohaku

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    Continuing in the "Not Legal Advice" vein, the Pfizer example, probably isn't the best here.  Unless Pfizer has a clause in their contract (employment or independent contractor) that specifies that all IP developed on the job or with their resources belongs to them (they most assuredly do), it most likely belongs to the "inventor".  That is the general "default option" for IP.  You are in good company here.  You would be amazed at the number of companies that discover this later, to their chagrin.  Many people assume, wrongly, that if you hire someone to do something for you, you automatically own any IP associated with or that is the product of their work (like hiring someone to write some software).  The general rule is that the author or inventor owns the rights unless you specifically contract otherwise. Of course this is a bit overly simplistic and there are exceptions.  Which is why this is not legal advice.

    So, the take away here is that when you hire your next chef, get a lawyer and contract up front as to these rights and then enforce them along the way, not when he or she is about to go out the door.  Not much you can do with the current chef except to try and negotiate a more reasonable fee if you really want/need the recipes. 
     
     
  8. iceman

    iceman

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    LOL. Sweet-Lov'a-Jebus!

    Our profession aint'e rocket surgery ... we work in kitchens. 
     
    Last edited: Jun 17, 2012
  9. chefhow

    chefhow

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    ^^^^^^^^ This!!!  If you as an owner don't have the info/recipes, know how or staff to cover the slack then shame on you, what do you do on the Chef's nights off?

    What happens if he gets sick?

    Goes on Vacation?

    What if he just up and quit?

    These are real questions that you should be able to answer.  Do you have a Sous Chef?  Does he know the recipes and techniques?  If so it looks like you have your replacement.  If not it looks like you're going to be out $200 a recipe.
     
  10. brfarr11

    brfarr11

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    Under what circumstances, if any, have you Ever been paid out for recipes developed and used daily as core business dishes -- developed and tweaked/refined all while getting paid, not while at home/off work etc.  ?   if so, what were you paid out? what rate? 

    FYI - slavery comment is over the top.   M-F 6am-4pm, nearly zero weekends/ nights   almost 57.4k for 50 hours/wk.. 23.75/hr.. not consulting wage, but not pennies/slavery either.

    anyone want that job in DC? (p.s. when you join, we keep recipes this time around)

    Also - I found several recipes that were documented, and given to me by the same chef -- doesn't that strengthen the expectation that we had an understanding -orally, that the recipies were mine to know/own..  
     
  11. duckfat

    duckfat

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    57K in DC?  No thanks. I'm in the greater Detroit area and the pay scale and cost of living here is far lower than DC. I was paying skilled cooks $15 an hour here 10 years ago.

    That's well below the average wage for a Chef in your area let alone expecting recipe develpment and ownership etc.

    I'm no longer surprised that your Chef wants that price for his/her recipes.

    I'd suggest you pay him what he is asking with the agreement that he will sign a no-compete covenant and train his replacement for a week at his current salary.  I'd also suggest you find and use a law firm to handle employment contracts for your key employees in the future.

    Dave
     
  12. boar_d_laze

    boar_d_laze

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    The "slavery comment" is not "over the top."  Reread and think it through.  It's compelled work which makes for "slavery," not the compensation. In case of a breach of contract suit regarding an agreement to perform a service, the "damages" are money and not performance of the service.  Why?  Neither you or a court can force someone to do anything they don't want no matter how much you pay or offer to pay.  

    Regarding another point...  Under almost any conceivable employment agreement, unless the topic was specifically covered, a restaurant could fire "for cause" any chef for refusing to supply the recipes currently used by the restaurant -- no matter who developed them.  That sort of communication is an implied part of employment agreements, even if the contract is oral and "at will."  Of course, as I said, the employer and employee are free to agree that it's not a part of the job -- but unless and until they do, it is.  As for the chef, NO unemployment compensation and GOOD LUCK finding the next job without a reference.

    Recipes are not IP (intellectual property) at least not in the sense they can be copyrighted.   However, under some circumstances, they're "trade secrets" and the restaurant can take steps to see that they're not shared.  The recipe information -- such as it is -- belongs to the restaurant.  If the restaurant fails to guard their trade secrets, even to the point of keeping track of them for itself, that's the restaurant's problem.  

    BDL
     
  13. cheflayne

    cheflayne

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    I have been working in the industry got 38 years. I have never been paid above and beyond whatever my pay rate of the particular moment was for recipe development and implementation.
    So fire him. You had an expectation, but did nothing to see that it was met, so while you are at it; fire yourself as well.

    A business developed primarily around one person is not built upon a very solid foundation. Business is about survival of the fittest. The natural selection process weeds out the weaker.

    Around the time of my father's death, I was the working chef/owner of a restaurant. I was able to be 3,000 miles away from that business for a period of 30 days because of a solid foundation. My business survived and even flourished during that time.

    That in itself was a valuable lesson. It showed me that no one is indispensable, even myself, a great ego check if there ever was one. But the double edged sword swung back to show me that I must be good at what I do, because I had built a solid foundation that allowed my business to weather this storm.
     
    mise ter place likes this.
  14. cheflayne

    cheflayne

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    Don't mean to hijack the direction of this thread but a very sore point in a former restaurant owner was triggered by this. Unfortunately, if a person is fired they can collect unemployment. I once caught a person stealing from me. Fired them on the spot. They were able to collect unemployment. EDD told me when I complained, I CAUGHT THEM RED HANDED FOR GOD"S SAKE!!!, that I could have reported the incident to the police. Big whoop, so their checks would have been mailed to the jail instead of their home?/img/vbsmilies/smilies/confused.gif

    Please excuse my rant, I now return control of your screens to the previous direction. Thank you.
     
  15. duckfat

    duckfat

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    It's a RPITA but IIR you can appeal the decision for them to get UE. When I catch some one stealing I don't worry about that. In most other cases I try very hard to make them not want to work for me. If they quit......

    NO UE for you! /img/vbsmilies/smilies/lol.gif

    Let some one go for not giving you a recipe and IME they surely would be getting UE if they wanted to persue that.

    Dave
     
  16. foodpump

    foodpump

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    I'm having a Brain fart here................

    Every place that I've worked at pretty much insisted that all dishes be costed out.  In order to cost it out, you need to know the ingredients and their weights.  This information was paid for, and is the property of the owners.  Owner's have the right to set menu prices, but need to know the food cost.  Kinda makes sense....

    The whole thing is kinda stupid.  Unless it's a McD's, every Chef (the one running the kitchen) has a different way of doing things.  You know the old saying, give 10 cooks the same recipe, and you will  have 10 different results.   

    As the ex-Chef did give notice, you had ample time to find a replacement.  This is the opportune time to re-do the menu.  Guess/fudge at the dishes you want to keep, and develop the rest of the menu.
     
  17. boar_d_laze

    boar_d_laze

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    First, let me apologize for being so general about unemployment benefits that my remarks were misleading and/or confusing.

    Not as "legal advice" or an expression of the law, but just as a nugget of general information gained from long experience in the California workplace:  Either the EDD was shining you or there was something else going on.  While some minor "for cause" reasons, e.g., chronic lateness or insubordination are not grounds to deny unemployment, gross misconduct, which definitely includes stealing, is.  The determination as to whether the cause was incidental or gross belongs to the local EDD.  On the other hand an EDD office might reasonably decide that stealing something minor -- a six pack of beer say -- was not sufficiently gross to deny benefits.  Why your EDD office ignored you, I have no idea.  I also have no idea if you had any recourse regarding their poor decision.

    Also, worth noting that a great many States are not as easy about unemployment benefits as California.  Different places are... well... different.

    Combining ignorance of the actual rules along with a little, shall we say "anecdotal experience," is just one reason seeking legal advice on a cooking forum might be counter-productive.  

    In any case, the OP is free to refuse to provide a reference and/or to include the "chef's" refusal to cooperate.  In this economy, that could be a problem.  To be clear though, I'm not saying the OP should get even, but use what resources he has as leverage for the recipes. 

    BDL
     
    Last edited: Jun 18, 2012
  18. cheflayne

    cheflayne

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    They told me that stealing didn't constitute gross misconduct. Flabbergasted I asked what the hey exactly constituted gross misconduct then. They didn't really have a cut and dried answer. It happened a long time ago and i have pretty much tried to expunge the incident from my memory banks, but i believe they hinted at physical altercations and or actions.

    In my experience, employers have no chance with the EDD. I had another issue concerning an employees final pay check. I was very much aware of the labor codes and statutes and made sure to follow the letter of the law in regards to their final paycheck. They phoned to say they would be in to pick up their check. I had it ready and waiting. They came in the middle of the lunch rush but still got their check no problem. They took me to the labor board saying that I made them wait to receive their check. At the hearing, I was basically told that I was guilty until proven innocent. I showed them a copy of the dated cancelled check. I was told that I could have written any date that I wanted on the check, it proved nothing in their eyes. To cut to the chase, I couldn't prove that I hadn't made the former employee wait. I wound up paying penalties that amounted to 3x the amount of the final paycheck. Yeah, I love the EDD.
     
  19. duckfat

    duckfat

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     As an employer you can contest and should always pursue that (IMO) with an employee that was let go for cause especially in state where the presumption for an initial ruling is always in favor in the employee. If you have appropriate documentation you certainly have a chance but IME it's a toss as to how it's going to turn in that quagmire of inconsistency.

    It is a pain but there's no way I'd kick back and have my insurance costs rise over some one getting compensation that should not.

    The Labor board is completely separate issue and I've never had any issues there but I'm a stickler for documentation.

    Dave
     
  20. cheflayne

    cheflayne

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    I am stubborn and hard headed (and those are my good points LOL) so I have never gone quietly screaming into the night when dealing with the EDD. As to documentation for " not making someone wait", well after that incident, I went so far as to have a witness to when I wrote a final paycheck and put it in a sealed addressed envelope (which they initialed) and to sign and date documentation to that end. I then would immediately go the post office and send the check by certified mail/return receipt. I didn't care if the employee said they would come and pick up the check or whatever, that was my procedure and they were informed as such.

    It is funny now, but when I opened my restaurant I was foolish enough to have no written policies, documentation, paperwork, etc. I thought would we would be above all that. One small happy family. Well by the end 12 years later, the pendulum had swung completely to the other direction. I had learned my lesson. I had documentation out the wazoo. I had documents to document my documents.