Pearl Oyster Bar v. Ed's Lobster Bar: Day 2
Thursday, June 28, 2007
Pearl Oyster Bar
The food world has been absolutely transfixed by Rebecca Charles's decision to sue her former apprentice cum right-hand man Ed MacFarland for stealing her Pearl Oyster concept and cloning it into Ed's Lobster Bar (via press conference, Ed maintained his innocence, of course). It's being billed as the first of its kind in the restaurant world, an intellectual property lawsuit that gets to the essential and tumultuous question of how much of a restaurant's DNA said restaurant can really own—and, also, how original a concept is a fish shack in New York. On the issue of whether Ed's is, in fact, a knockoff, it probably is. Aesthetically, they differ (above, Pearl; below, Ed's), but the menu similarities (Pearl, Ed's) are striking.
For our part, we'll say that if Rebecca Charles was so worried about people knocking off her restaurant, she should have opened one on the East Side, with MacFarland at the helm, two years ago. Cut the issue off at the pass by spreading the wealth. She'd certainly have turned a profit on a theoretical Pearl East by now and would not be burning her cash on legal fees. The rest of the dispute is up for debate. Here now, what some of the web heavies have had to say thus far:
1) Ed Levine (earlier this month): "Now I understand that a Maine lobster shack menu and concept is not anything that can be copyrighted or patented. There are probably a hundred of them in Maine, and they've been around a long time, at least in Maine. But Pearl Oyster Bar is a New York City lobster shack opened by a highly trained chef who took that style of food and made it her own, armed with cooking technique and some original ideas...Pearl became its own unique animal, something that is in fact quite different from the lobster shacks of Maine."
And this morning "This fight is not about serious eaters enjoying unfettered access to delectable lobster rolls and Caesar salads. It's about a violation of trust, resentment, and betrayal behind the counter and the stove at a couple of restaurants in New York."
Ed's Lobster Bar
2) Megnut: "One one hand, I can see how she's frustrated after pouring so much into her restaurant and watching her former employees go open similar places. But filing a lawsuit seems ridiculous to me. I'm no fan of copyrighting recipes (see Keep recipes free) and I'm not much in favor of intellectual property claims on restaurant themes either. Lobster rolls? "Packets of oyster crackers placed at each table setting?" A "white marble bar" for seafood? Have you ever been to New England or France? Rebecca Charles hardly invented these concepts ten years ago. Instead, she was free to incorporate them in her new place because they've existed for so long and been used by so many; because they haven't been copyrighted and trademarked by lawyers and corporations. These details are the essence of our seafood restaurant vernacular, that's why they resonate with so many potential customers and give her West Village restaurant an authenticity she's now trying to control. Mr. McFarland would be hard-pressed to open an authentic-seeming lobster bar without including at least some similar items."
3) Erik Sherman: The paint scheme evocative of summers in Maine? She may see that as a personal statement, but so could hundreds of thousands, if not millions, of others who have spent enough time in Maine. The Caesar salad? Got the recipe from her mother who got it from an LA restaurant years ago, except now she calls it a trade secret. But whose? Coddled eggs as a basis for the dressing? I remember hearing that concept probably a dozen years ago on a cooking show where the chefs said that it was a way to prevent problems with salmonella from raw eggs...I understand the desire to protect intellectual property. I do that myself, as my living is based on IP. But you need to know when you've really done something different and when you owe too much to everyone who has gone before."
4) Jason Kottke: "The key question in these kinds of cases for me is: does the person exercise creativity in the appropriation? Did they add something to it instead of just copying or superficially changing it? Clam shacks are everywhere in New England, but an upscale seafood establishment with a premium lobster roll is a unique creative twist on that concept brought to NYC by Charles. An upscale clam shack blocks away from a nearly identical restaurant at which the owner used to work for six years...that seems a bit lame to me, not the work of a creative restaurateur."
5) Gurgling Cod: "If Charles wins, it opens up a whole can of worms -- no more mullet for the singer in Quarterflash, no more bowl cuts for the Monkees. From here, it looks like a case of bitch stole my look, which I do not think is illegal. Yet."
Photos from the Kalina Archive
Filed under
Eat: The Word,
The paint colors are the exact same. The chairs are the exact same. The finish on the wood floors is the exact same. I'd say Ed's is a total copy.
If nothing else, all of this begs the need to go to each, as soon as possible, to compare for one's self. I will Eat at Ed's tonight. Never would have before hearing the clamshells hitting the wall.
You forget to metion. That most menu items are the same and they are prepared and displayed the same way also.. Oh he has a little table in the bathroom just like the pearl. I'm not even going to mention the blackboard at the end of the bar? Gee have I seen this before in the same exact location and size??? Naaa he didn't copy The Pearl.
Rebecca Charles probably feels betrayed and rightfully so. The best way for folks to support her would be to go and patronize Pearl Oyster Bar and leave Ed's Lobster Bar out of their food itinerary.
If a picture is worth a thousand words (In this case 2 pictures) from above. You can pretty much see it looks like the same interior. But what do I know I have never been to either place and live out on Eastern Long Island.
I'm filing a patent TODAY on the concept of "sports bar". Soon, any saloon that has a TV in it will not be able to show a game without paying me a royalty.
Oh. And "beer". I'm patenting that too.
Too bad "hamburger" was already taken, dammit.
I think if Ed claims it was satire he should be okay.
I agree with Bluefish #5 Looks like the same place to me. If I didn't read the article I would of thought it was the same place from different angles.
Mr Ed clearly was inspired by The pearl ....
He should have embraced them and thank them for giving him the opporunity to think that He can do it.
I Wish LOVE 2 ALL as they both could inspire each other and both make it....
Do you remember when Mary's Fish Camp opened? It was the same deal, except more complicated because of their personal involvement. Now Charles is twice burned, so no wonder she's suing. As mentioned above, she should've taken the bull by the horns and claimed the market share herself.
This seems to go back to the issue of copyrighting recipes. Wasn't it chefs who were most in favor of NOT copyrighting? Imagine if you could only get lobster poached in butter at French Laundry or Per Se but no place else. And by the way, did I mention I invented peanut brittle? And the internet.
Has anyone mentioned the lack of a non-compete agreement here? What a shocker: the "right hand man" (read: guy who ran the place) for 6 years leaves and opens a very similar restaurant. Too bad, that's life. We should have Rebecca Charles' problems. Try to eat at Pearl without a wait first. Crybaby... .
What ever happened to being creative? I guess it's just easier to copy/steal a proven business plan.
Agree with Sandy. I feel for her, but a non-compete would have gone along way toward preventing her staff from poaching the concept.
NC's/NDA's are fundamental in most every other IP-oriented industry. Food doesn't necessarily fit neatly into that category, but "once bitten,..." as they say...
That said, I prefer Ed's decor based on the 2 pics...sue me.
If French bistros had to patent the menus, chairs, and look of their place, what is the world coming to? Balthazar, Pastis, have knock offs all over the city as you cant really patent a style and atmosphere. A nicoise salad, charcuterie plate, duck confit, frisee salad, there will not be too much difference in restaurants, it's the quality of the ingredients that count. Coddled eggs? That's something that I've seen in books, magazines, and on tv to use in a dressing or sauce for richness, texture, and bacteria issues.While Charles was the first in new York, she ceratinly wasnt the first on the east coast, or anywhere in America for that matter. Take it as a complement, that he copied her style.
i'm surprised no one has brought up or mentioned magnolia bakery in all of this. didn't multiple former employees of the original open up obviously similar places of their own after leaving? what happened in that case? am i making this up? i can't really remember.
Rebecca isn't the nicest person on the planet, so any tears shed by the woman fail to move me. There are lots of things she could have done to prevent this, but filing a lawsuit will eventually make her persona non grata in the business. The snickering has already started, the guffaws will come later.
frankly, even if it is a blatant rip off, at the end of the day restaurants are measured by their profits and not their inherent uniqueness. last i checked pearl is pretty damn hard to get a table at. until that changes i see no reason to care what the restaurant next door is doing.
i've been to ed's several times, good food and friendly staff and easy to get into...
Copyrighting recipies? You can't. A recipe is a process for doing something; the closest you could come would be to patent it, but then of course you would have to prove it was a "non-obvious" improvement to the state of the art...hardly possible when just about every technique, especially when mixing mayo and lobstah together is pretty obvious not matter what you add. You may be able to protect the way you describe making the recipe, but you can't copyright facts and processes no matter how hard you try. This is just another case of sour grapes (rotten lobstah?) by a spurned chef...guess what, if you paid your employees well enough and respected them, they wouldn't want to jump ship. And if they make learning from a master and then going off on your own to attempt your own version, then every bistro owner in France would be thrown in the clink. Guess she took a page from the RIAA and decided to sue rather than compete. Too bad, cause she does make a tasty lil roll of fish. I'd eat at that Y any time.
ed worked at pearl for six years and his place shows that influence--surprise! ms charles sounds petty, mean-spirited and a little bitter. I agree, pearl is still packed, she's got her book deal, what's her problem?
When something is good or succesful, it is often copied. tv does it all the time, fashion, etc., etc. Charles did it by copying the shacks in Maine. In the end, the best man or woman is noted and, more often than not, wins. (Ok, maybe not in tv.)
I do think, though, that by filing suit she has drawn attention to the fact that it is a copy (and a seemingly rather blatant one) and that educates the eating public.
Finally, you do what you do, the best way you can and let the people make their own decisions.
ps- I used to live in Maine and as far as I'm concerned, none of the lobster rolls I've tasted in town or out match the ones in the roadside drive-ins in Maine. period.
I ate at Pearl once, it was fine, super busy and the host behind the bar was very professional and got us seated. The waitress kinda sucked, maybe she was having a bad day, she actually walked away from us when ordering because we paused for a second. I'm with Ed on this one. It's just lobster.
i agree about the non-compete, would have been a smart move to protect yourself. guess some (more?) chefs are going to consider those now...
"new england fish shack" is a much more limited concept than, say, "italian" but it would have been nice to see something more creative and personal from Ed on the menu. meanwhile, it's just same old, same old.
i ate at Ed's once and it was noticeably Pearl-like. i already get that at Pearl - no reason to go anywhere else
I have been to both restaurants several times and while I do think that Ed's is a complete rip off it is not anywhere near as good, the seafood is definitely not as fresh and in a couple of instances very questionable.. I also think that the lawsuit is way too far. Chefs should fight their battles on stoves and plates not court rooms. Patronage and longevity will determine who is right in the long haul. I will have to say that I question Mr. Mcfarlands skills as a chef in tasting his food but also in the fact that most chef's who open their first place do so because they have a desire to be creative and show their own talents. his cloning of Pearls menu only goes to show his lack of either. Still Ms. Charles should have probably have given him more incentive to stay. Obviously there's some reason why this has happen to her twice by people she trusted. No matter what the legal outcome customers will have the last word on this matter.
"...guess what, if you paid your employees well enough and respected them, they wouldn't want to jump ship. And if they make learning from a master and then going off on your own to attempt your own version, then every bistro owner in France would be thrown in the clink."
Do you have any idea how many slimy overambitious types take jobs for the sole purpose of learning someone else's trade secrets? Do you know how many times, in how many restaurant kitchens, I've seen people come in on their first day and have the audacity to ask for xeroxes of recipes and contacts for purveyors?
They have no intention of staying with you once this info is obtained, no matter how well you treat them.
By the by, I'm not saying it's possible, realistic, or even smart for a restaurant owner to hide everything. But I am calling out the intentions of people digging for info so that they can use it themselves. There's a difference between learning and applying vs. slyly gathering info for your own benefit.
I just get this awful sense that McFarland's defenders are people who don't have an imaginative bone in their body. It's very depressing to think that so many NYers, many who love to distinguish themselves as food snobs, really just settle for places that are contrived.
Tell you what, let's all go out for some Hitachino at that place with exposed brick walls that serves Berkshire pork!
one more thought - when Mary Redding she left Pearl, she opened a very different looking restaurant, even if the core concept was the same. i just looked at the menu and she has lots of other items on the menu that you'd never see at Pearl like tacos. No "Mary's Ceasar" either
Pearl's and Ed's same decor....same food. DUH. Isn't it obvious that Ed is in no way hiding the fact that he's doing another Pearl's. It's a bold, in your face slap to Rebecca. It's an act of revenge, a quasi comupance. Perhaps Rebecca is a bad boss that most ex-employees want to f* over. There are two types of chefs, the ones that no one would ever, ever screw over (treat employees well, regards loyalty, shares the wealth, i.e. Mario Batali & David Chang), and the ones that EVERYONE wants to screw over (overworks, underpays, doesn't care about workers, tyrannical). Doesn't anyone think it odd that 2 different ex-employees go on to open competing places? It's about time the karma boomerang bit her in the arse.
I trailed at pearl once and I have nothing but lovely things to say about ms. charles. She was kind, considerate and seemed to have her heart in her resturant. I also met Ed, and he seemed like any other sous chef of a certain age, nice enough but you could tell he was bitter. I'm not suprised that he'd do this, and I think it's kind of shitty. At least come up with something yourself, jesus.
I hope they throw this ridiculous lawsuit out the window. Ed's a great guy. He basically ran Pearl's for 6 years and worked his butt off for Rebecca. Now hes' finally getting paid what's he's worth.
When Mary Redding left Pearl to open Mary's Fish Camp, most of the staff left with Mary. Obviously they'd rather work for Mary than Rebecca. Gee, I wonder why?
Any cook who works at any restaurant has to cook each dish exactly the way the head chef tells them to, which means that they HAVE to learn the exact recipes and techniques, so it is preposterous for anyone to say that Ed was "entrusted with trade secrets".
I doubt that anyone who has ever worked for Rebecca Charles would accuse her of being a nice person to work for.
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