July 3, 2013

Legal feast: Who owns fired Maine baker's recipes?

A baker fired by Micucci's says he owns the secrets to popular creations like luna bread, but the law is tricky.

By Meredith Goad mgoad@pressherald.com
Staff Writer

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click image to enlarge

Customers leave Micucci's Grocery with their pizza slabs Monday. The grocery is still selling the slabs, luna bread and Italian pastries after baker Stephen Lanzalotta's departure.

John Ewing / Staff Photographer

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Micucci's Grocery on India Street in Portland is well known for the Sicilian Slab pizza developed by fired baker Stephen Lanzalotta.

John Ewing / Staff Photographer

"In that case, a transfer of copyright has to be in writing," he said.

For items developed while Lanzalotta worked at Micucci, "it's not so clear."

Keep in mind that all of this depends on whether anything in Lanzalotta's recipes can be copyrighted. If copyright law doesn't apply in his case, trade secret law may, attorneys said.

"It would require a lot of extra expression to justify copyright in a recipe," said Ashlyn Lembree, a professor at the University of New Hampshire School of Law and director of the Intellectual Property and Transaction Law Clinic at the Franklin Pierce Center for Intellectual Property.

"I don't know what (Lanzalotta's) recipe looks like," she said. "But it's possible that the guts of what he really cares about are the facts and the process, which are not copyrightable, which brings us to trade secrets."

A trade secret is a process, formula, method or technique that has commercial value and is secret. The formula for Coca-Cola, for example, is a trade secret, and people have been arrested for trying to steal it.

People can do many things to protect trade secrets, Lembree said, including "only letting employees who have a need to know, know, or maybe know only part of the recipe. Or having passwords on your computers. Or having lock-and-key on your recipe box. Or having nondisclosure agreements with your employees."

The fact that the recipes Lanzalotta used to train employees were all marked "confidential recipe," in red no less, "adds such an interesting twist to this scenario," Lembree said.

It raises the question of whether the baker can sue his former employer for misappropriation of trade secrets, she said. Did the bakery have a duty to maintain secrecy or limit the use of the marked recipes? Or is Micucci's possession of the recipes enough to allow their continued use?

"If I was a mediator in this case and I were to recommend a settlement," Lembree said, "I'd say, 'You guys should both use it and you guys should both come up with a trade secret policy so it's kept as a trade secret.' You need to put limits on what it can be used for and what it can't."

In the days since Lanzalotta's departure from Micucci, both sides have had their supporters.

The store's owners are out of town until Wednesday, and an employee who answered the phone at the grocery had no comment.

Lanzalotta says he has been inundated with job offers that range "from being a consultant to a startup boutique bakery to manufacturing."

Paul Martino, a personal manager for actors who splits his time between South Freeport and New York, is one of the people who has offered to help Lanzalotta open his own bakery. He's offering a newly renovated, 1,900-square-foot commercial space in South Freeport, with seating for 30, at a highly reduced rate -- or even no rent at all.

Why?

"I'm Italian," Martino said. "I want to tell you, I've never had pizza like that in my life, and I live in New York City. It's on a whole other level. I've got Italian grandparents on both sides, and neither one of my grandmothers made pizza like this, ever."

 

Meredith Goad can be contacted at 791-6332 or at:

mgoad@pressherald.com

Twitter: MeredithGoad

 

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