Restaurants could be in hot water over who owns the chef's recipes

That delicious signature dish at a favourite restaurant could be a recipe for a war over who owns it if the chef ups and moves to another eatery.

Who owns the recipes largely comes down to the existence or not of employment contracts and whether the chef is an employee or a contractor, according to Brisbane lawyers Ken Philp and Michael Coates.

Brisbane chef Damon Amos is at war with his former restaurant over who has the right to feature a duck dish on their menu. Mr Amos reportedly created the dish KFD (Kentucky Fried Duck) when he was working at Public restaurant in Brisbane’s CBD in 2012. The dish became a signature of the venue’s menu and is still offered, even though Mr Amos left 18 months ago.

Now he’s fired up because he hasn’t been able to make Public take the duck dish off the menu, but he wants to use it exclusively at his new restaurant, Detour, in Brisbane’s Woolloongabba.

Brisbane intellectual property law expert Ken Philp and employment law expert Michael Coates, Directors of Brisbane firm Bennett & Philp Lawyers, said the issue goes far wider than one recipe at one restaurant.

The intellectual property rights of any creative person – be they chef, artist, photographer or advertising industry person- can come down to whether a person is an employee or a contractor, and whether copyright and other intellectual property rights are covered in contracts, Mr Philp said.

“If you are an employee of a restaurant and you create a dish in the firm’s time and using its resources then, unless you have a clause in your employment contract saying you have ownership of the recipe, then it belongs to the employer.

“However if you are an independent contractor supplying chef services to a restaurant and you created the dish, then you will usually  have the intellectual property rights to it and are in effect  licensing them to the restaurant,” Mr Philp said.

But what if the recipe’s all in your head? Who owns it then?

“If it’s in your head and you are an independent contractor then you own it unless you have agreed to hand over your rights,” Mr Philp said.

Mr Coates and Mr Philp said the duck recipe standoff illustrated the need for employment contracts to be clear on matters such as intellectual property ownership.

“If you are an employee and the restaurant owner asks you to create a dish and you do so in your head in the firm’s time using its facilities, then the employer owns it, unless your employment contract specifically gives you rights to a dish,” they said.

The rise of popular TV shows such as Masterchef and My Kitchen Rules had brought renewed public focus to eating out and innovative dining and given rise to celebrity chefs.

“Inevitably chefs will want to protect their unique signature recipes and move from restaurant to restaurant. The issue of a recipe’s intellectual property is one I expect will feature in more future disputes. Unique recipes are what they can use to sell themselves to a restaurant. That can be a very valuable right,” Mr Philp said.

Mr Coates said it all came down to having clear contracts and ensuring issues such as creative ownership of recipes was clearly dealt with in the contracts.

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Issued on behalf of Bennett & Philp Lawyers, Brisbane, by David Wilson Media Services.

Media contact:
David Wilson: Ph: 0414 224 527; Email:

Bennett & Philp Lawyers

15 Adelaide Street, Brisbane Qld 4000

Telephone:  3001 2999

Authors

Ken Philp is a Bennett & Philp Lawyers Founding Director at Bennett & Philp Lawyers
Michael Coates is a Director at Bennett & Philp Lawyers
Lachlan Thorburn is a Associate at Bennett & Philp Lawyers

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