Edible tries taking a bite out of Flavor
As local publisher Melissa Harris prepares to launch her second issue of Flavor, the quarterly magazine on local food and wine culture that debuted over the summer, she's reeling from a blow delivered by the company she almost partnered with, a Santa Fe-based firm that sued her in federal court accusing her of copyright infringement, unfair competition, and breach of contract. And you thought the local food movement was a quaint, idealistic grassroots affair.
On October 8, Edible Communities Inc got Harris to agree that Flavor won't use, among other terms, such feature headings as "imbibe," "in the garden," and as well as the seemingly stock phrase "What's in Season."
It seems that before Harris launched Flavor, she flirted with the idea of partnering with Edible Communities, a small magazine empire that began as a single publication in 2002, covering the local food scene in Ojai, California. Edible has since grown into a publishing company that claims a total readership of over 13 million with over 54 locally-based titles across the country, such as Edible Cape Cod, Edible San Francisco, and Edible New Jersey and so on.
According to a 2007 New York Times article on the franchise publishing company, it costs around $90,000 to set up an Edible outpost– $30,000 up front and $60,000 financed over five years. Fledgling publishers gets help with editorial content, production, training, ad sales, and distribution for the first year. Thereafter, they return the favor by handing over five percent of advertising sales.
"I thought it was an interesting concept," says Harris. "But in the end I thought it was too expensive, too much of a 'cookie cutter' publication. I didn't like the idea of carrying national advertising, and of paying them five percent forever."
Harris claims she made it "very clear" that she was considering publishing her own magazine, a decision she claims company brass appeared to approve.
"I am supposing you've decided to not pursue becoming an edible publisher at all any longer but wanted to double check," wrote Edible Communities cofounder Tracey Ryder in a March email to Harris. "We're about to move forward with the other couple in your area who wanted to do another title but I was going to leave out the 2 counties you wanted to have from their contract if Edible Piedmont was still a possibility for you. If not, that's perfectly fine as well."
Two months later, after Harris launched Flavor's website, Edible's lawyers came calling, accusing her of copyright infringement, unfair competition, and of stealing their "trade dress."
Charlottesville is no stranger to trade dress litigation. In 2005, the Riverside Lunch sued a former employee who opened a competing burger-centric restaurant called Martin's Grill. The suit was settled after several undisclosed changes to the decor and food presentation at Martin's.
As for Harris, she concedes that she signed a non-disclosure agreement to obtain information from Edible as well as a preliminary contract for a publishing franchise in November 2007. But Harris contends she was told by company officials that the contract wasn't binding until money was exchanged. Although Harris cites Ryder's March email as evidence that she could back out, the company demanded that Harris pay $22,500 to honor the two agreements.
"My lawyer said it was ridiculous," says Harris, "but I still had to defend myself, and it ended up costing me a fortune." After spending $50,000 in legal fees, Harris says she elected to settle with the company rather that fight them in federal court.
Harris alleges that Edible Communities was hoping to "take her out" or at least cripple her effort before the launch of its own local food magazine, Edible Blue Ridge, whose website showed up recently at edibleblueridge.com.
The "couple" Ryder spoke of turned out to be veteran journalists Steve and Natalie Russell, who moved here from New York four years ago and plan to launch Edible Blue Ridge during the third week of January. Steve Russell is a former executive editor for Playboy and Maxim, and his wife, Natalie (who will serve as editor), is a former managing editor of Martha Stewart Living Magazine.
In June 2006, Steve Russell opened News to You, the Downtown Mall’
s first newsstand in nearly a decade, right in front of the Regal Cinema. Although the business was short-lived, Russell calls it a "little experiment" that "did okay" that he stopped when he and his wife had their first child.
Russell says he was not a party to the lawsuit against Flavor, though he acknowledges he was aware of the magazine.
"We're fine with Flavor being around, as long as readers and advertisers know the difference between the two magazines," he says. "Besides, there are a million local food stories."
Unlike Harris, Russell found that the Edible concept made alot of sense. "We thought about doing it ourselves, but we like the idea of being a part of a community of magazines, and they help you work out the kinks in the beginning, and supply you with great photographers."
And Harris' contention that its a generic "cookie cutter" publication?
"No, actually its just the opposite," says Russell. "The content is not dictated, and you're free to make it what you want it to be. It's alot like the Buy Fresh, Buy Local thing. It's a national campaign, but people promote it locally."
Harris, also a veteran of the publishing business, says she observed that most people who bought into the Edible concept didn't have a lot of experience with the business side of publishing.
"There's no secret to publishing," she says, pointing out that hard work and salesmanship are all it takes. "People who buy into this idea will live to regret it."
That's obviously true for Harris.
"What money I saved to help launch Flavor, they took," she says. "But we're still coming out with our second issue in a few weeks, which is nearly 100 pages."
Edible's lawyers, however, stand by their actions and point to the settlement as proof that Harris lifted many of Edible's concepts and trademarks. Indeed, looking at an issue of Edible Grand Traverse (a Michigan-based franchise) alongside the first issue of Flavor it's hard not to notice the similarities. However, the issue of Edible Grand Traverse the Hook saw was published after Flavor's summer issue, and Harris says she instructed her editor and designers to make sure that "nothing looks, smells or tastes even slightly similar to Edible." What's more, Edible Grand Traverse's website (www.ediblegrandetraverse.com) features the same photo of some apples that Edible Blue Ridge is using on their cover. So who is copying who here?
Still, in a general sense, how different can magazines about local food be? In a town where two weekly newspapers appear to be coexisting peaceably, can two magazines on the local food culture do the same?
"It's always a last resort when we take someone to court," says Edible's in-house attorney Andy Huppert. "This is expensive, but it's over. We're not interested in causing this woman any more problems."