First and foremost, you must always have your managers, partners, and other members of your establishment execute a non-disclosure agreement and include confidentiality provisions in all agreements.
Restaurant owners and chefs often conflict with regards to who owns the copyright to the recipes and concepts created by the Chef and/or partners of the Restaurant. Concept and design of a restaurant/club is often times difficult to protect since, after all, we get our ideas from what we see.
Recipes that merely list ingredients are not copyrightable. They become copyrightable when they contain expression beyond the mere listing of ingredients, such as mixing and cooking directions, tips, photos, etc. Once they become copyrightable, they must be put in writing (or in some other tangible form such as a recording) in order to receive copyright protection. They are copyrighted the second they are written down and they do not need registered with the U.S. Copyright Office (although registering them does provide additional advantages such as proof of latest creation date, public record, and registration is required in order to file a copyright infringement lawsuit).
GENERAL RULE: THE COPYRIGHT FOR RECIPES CREATED BY THE CHEF WHILE WORKING AT THE RESTAURANT WIL BELONG TO THE RESTAURANT.
Once they are reduced to writing, the timing and circumstances of such will determine who owns the copyright. For example, if the chef copyrighted the recipes prior to working for the restaurant (eg, created and wrote them down), then the inquiry stops there: the copyright belongs to the Chef. If the Chef created the recipes on his personal dime and time but during his employment period with the restaurant, it's arguable, but the Chef may own the Copyright. If the Chef created the recipes while working at the restaurant, then the copyright will belong to the restaurant in accordance with the Work For Hire Doctrine in the Copyright Act. One simple way to eliminate all of the uncertainty is to execute a written “Work For Hire” agreement specifying that all recipes created during the period of employment shall become the property of the restaurant.
Once they are reduced to writing, the timing and circumstances of such will determine who owns the copyright. For example, if the chef copyrighted the recipes prior to working for the restaurant (eg, created and wrote them down), then the inquiry stops there: the copyright belongs to the Chef. If the Chef created the recipes on his personal dime and time but during his employment period with the restaurant, it's arguable, but the Chef may own the Copyright. If the Chef created the recipes while working at the restaurant, then the copyright will belong to the restaurant in accordance with the Work For Hire Doctrine in the Copyright Act. One simple way to eliminate all of the uncertainty is to execute a written “Work For Hire” agreement specifying that all recipes created during the period of employment shall become the property of the restaurant.
GENERAL RULE: THE CONCEPT AND DESIGN IS NOT PROTECTED UNDER INTELECTUAL PROPERTY LAWS
Unless the two restaurants/clubs are so similar to the point that one would believe it's the same club/restaurant owners and/or franchisors, the concept and design will not be protected. The rule of thumb is not to confuse the customer to believe that the two restaurants/clubs are created by the same owners. A case in point, Rebecca Charles, chef-owner of Pearl Oyster Bar in NYC. Ms. Charles sued her former sous chef and previous partner, Ed McFarland, now chef and part owner of Ed’s Lobster Bar in Soho, NYC. The two restaurants had similar menu options, as well as similar white bar, lamps, wallpaper/wall color, and similar seating arrangements. (See Article http://www.law.suffolk.edu/highlights/stuorgs/jhtl/docs/pdf/CUNNINGHAM_Protecting.pdf) Although the parties settled out of court for an undisclosed amount, it is evident that restaurant owners/chefs are becoming more and more aware of who to partner with, and how. Everything should be memorialized in writing and should specificy that the concept/design of the establishment shall not be used in similar or same format elsewhere by those involved in the establishment (eg, partners, chef(s), managers, etc).
There are numerous exceptions and nuances to these general rules and a consultation with a qualified attorney should be had to determine actual copyright ownership of recipes in each particular circumstance.
