151 replies to this topic

[KD1191]

I think part of the problem those who believe in expanding the protections of IP to the culinary world will face, particularly in this thread, is a lack of innovation so great that it cries out for protection. Smoking coke and fat washing are novel infusion methods, but I can't imagine a world in which Eben is granted a patent on those processes. Neither should Dave Arnold be receiving royalties every time someone uses an iSi whipper to quick-infuse liquid. I agree that these are steps forward in the cocktail world, but they are certainly "obvious" in the way the term is used in the IP field. I wouldn't be at all surprised if patents exist (and have already expired) for the processes Eben is created with creating. He would not be entitled to anything even if he was the first to apply them to food.

I wouldn't argue that some of what the handful of most innovative chefs in the world are doing seems like it has the potential to qualify for a patent (certainly when compared to some of the absolutely mundane things processes I see getting patented left and right), but I would go so far as to say that this article hurts the cause of expanding IP rights into the culinary sphere.

[Splificator]

I think that's true. I'm sure I would get some grief from Steve Jobs if I launched a "Mack" computer.

I want one of those! Does it come with a white mink sleeve?

[slkinsey]

Of the people who have done serious legal research and thinking on this, I think Chris Buccafusco does the best job of laying waste to the idea that culinary creations are undeserving of copyright. Although his article ultimately takes a turn against extending copyright law to cover culinary intellectual property, he nonetheless does a great job making the case for culinary copyright. From his abstract:

I show that, contrary to recent appellate court opinions, recipes meet the statutory requirements for copyrightability. I argue, by analogizing to musical compositions, that written recipes work to satisfy the fixation requirement of copyright law just as musical notation does for compositions. Accordingly, the "dish" is the final work of authorship, the recipe is the fixation medium, and the various cooking techniques - braising, grilling, sous vide - are the potentially patentable processes. In order to meet copyright law's requirement of originality, though, the work must be deemed expressive. To determine whether and how recipes are expressive, I interviewed some of America's best chefs, each of whom claimed to use recipes to express various ideas and emotions.

I guess I'd say that it depends on the nature of the "culinary creation." If we're talking about the totality of a unique work there might be good argument that there should be some protection. However, it seems that there is some fairly low threshold at which this would be broken. The meaningful question would be "what constitutes the creative expression?" If the creative expression includes the combination of ingredient sourcing, equipment, techniques, presentation, etc. then not much has to change before it's no longer "copying," right? Serve it in a different glass, use a different brand of vermouth, garnish with two cherries instead of three, etc... If, on the other hand, the creative expression really just boils down to a list of ingredients and a few instructions, I have a hard time believing that's ever going to be protected.

And... here's the thing about cocktails. We're not really talking about the really far-out creative stuff in Eben's repertoire. That's specialty stuff that will never be the mainstream of cocktails any more than the stuff Adria does will be the mainstream of restaurant food. At the end of the day, people don't want to eat their cocktails and drink their pizza. When we move a bit closer to the mainstream in even Eben's work, we start hitting on innovative stuff, but stuff that starts to fall more squarely in the "cool drink" category more than it does the "creative expression as art" category -- things like smoked whiskey and cola, and pumpernickel-raisin infused scotch. Does the concept of making smoked cola syrup deserve copyright-like protection? That's a pretty hard argument to make. Because, after all, while its true that my crappy picture of the Empire State Building has automatic copyright protection, it's also true that you can take the exact same picture and not only does it not infringe upon my copyright but you have copyright protection for yours as well -- we can even name our pictures with the same name. All of which is to say that, if you're going to extent copyright-like protection to something like Eben's Waylon cocktail, that's not really going to prevent someone else from making a drink called the Waylon incorporating Woodford Reserve Bourbon and cherry/adler smoked cola any more than it would prevent someone else from taking the same picture of the Empire State Building. Meanwhile, below the level of the Waylon Cocktail, it becomes a lot easier to copy.

I can sympathize with his frustration. Here you have this incredibly creative guy who puts in long, hard hours inventing new cocktails that are an order of magnitude more creative than rum and Coke. He's using cutting-edge processes and when you're working with smoked Coca Cola there's an economic investment beyond just buying a bunch of bottles of stuff. Yet the world is saying, "What you do doesn't deserve the protection of the copyright law." Meanwhile, every photograph no matter how bad, every message-board post on the internet no matter how inane, every book or article no matter how stupid, every song, etc., is protected by that body of law. It seems wrong to me, and I can see why it would seem wrong to him.

This is the center of the argument, I think. For better or worse, the law in this country has decided that things such as writing, composition and photography are inherently creative artistic expressions whereas creating a recipe is not. I think there may be an argument made that certain cocktails might be deemed "creative works" deserving intellectual property protection, but whereas IP law holds that the most mundane scribble has copyright protection I have a hard time believing that it will ever come around to holding that gin, vermouth and a splash of Red Bull deserves the same kind of protections. So then, if you're in the position where a drink has to pass some kind of subjective sniff test to deserve intellectual property protections, it's pretty much useless because it will simply cost too much to litigate. And if you can't litigate, you might as well not have the protection. Never mind that cocktail recipes are even easier to share than music files, and it's quite clear that file-sharing is driving the copyright system for printed and recorded works right off a cliff. Extending this untenable system to cocktails (or other culinary recipes for that matter) would be about as beneficial to mixologists as trying to get robbers to go back to wearing green tights and carrying longbows would be to banks.

Edited by slkinsey, 31 August 2010 - 09:14 PM.

[haresfur]

I think he's heading in exactly the wrong direction. The thing to do is to get your ideas disseminated as widely as possible and as soon as possible as your ideas. No one is going to make any royalties on a drink - the commodity here is the bartender, not the cocktail. Your best bet is to enhance your reputation and make the "brand ambassador" and thus the brand look silly for plagiarism. And go down that route yourself if you think it is in your best interests. I'm sure the manufacturers would prefer to deal with someone with a reputation as truly creative than a hack. And as good scientists know, the best way to claim an idea is to publish first.

Now if you are planning on writing a book or an article, by all means keep your ideas under wraps until you get them worked out. Maybe if you are developing a unique menu for a big chain, they would want some kind of protection but I doubt they would give you the intellectual property rights. Maybe if you want to team with George Foreman to market the George Foreman Bar to go with the Grill (Hey kids, want to know what to do with that fat from your steak? Put it into the Bar accessory with some rye, marinate, skim off the booze, and get the rest of the flavor with none of the fat...).

Actually the only place I can think of in the "spirit world" where IP has any meaning is for the manufacturers who have a big enough market to make it worthwhile to keep people guessing about the exact formula for, say, Fernet Branca. So if you have a great drink idea, make sure it can be bottled and these days preferably make it taste like Kool-Aid ™.

[EvergreenDan]

As the author of a cocktail recipe sharing website, I'm neither in favor of IP rights for recipes, nor concerned about it coming to pass. My site has a place to note the date, creator, and source reference (link, book, whatever), and I fill it in whenever I know the information.

That said, if I were really worried about not getting credit for my creations, I'd publish the recipes and blog about others making my drinks. Those using exactly the same recipe would be seen as validating my awesomeness. Those making variations would have their variations critiqued by me and discussed in the the blog's comments. Now all the attention is back on me and my greatness.

So if one of my recipes shows up on the tag hanging from the neck of the Fernet bottle, I can talk about how I'm so awesome that Fernet selected my recipe to promote their product.

Which martial art is it where you grab the attacker's hand and pull it toward you?

[evo-lution]

as evidenced by the incorrectly formulated and incorrectly named "Earl Gray Mar-tea-ni" as found in Difford's Guide.

To be fair to the people behind Class Magazine and Difford's Guide they do make it clear that they reformulate drinks recipes to suit their palates and don't necessarily print the original.

[TAPrice]

I think he's heading in exactly the wrong direction. The thing to do is to get your ideas disseminated as widely as possible and as soon as possible as your ideas. No one is going to make any royalties on a drink - the commodity here is the bartender, not the cocktail. Your best bet is to enhance your reputation and make the "brand ambassador" and thus the brand look silly for plagiarism. And go down that route yourself if you think it is in your best interests. I'm sure the manufacturers would prefer to deal with someone with a reputation as truly creative than a hack. And as good scientists know, the best way to claim an idea is to publish first.

My impression from the talk was that Eben might want this rights but recognized that U.S. law would never grant them. We should probably be carefully about discerning his motives from this Atlantic story (as I noted, even the basic facts about the presenters weren't fact checked). Then again, he did say that someone should get sued.

The lawyers in the seminar made the same point about bartenders needed to stamp their "brand" on their creation.

It seems like only practitioners of molecular gastronomy are seriously arguing that their works deserve copyright protection (and I'm still not sure that anyone is making more than a hypothetical argument). I understand--they want to get paid. Part of the reason that they're frustrated and seeking new revenue models, I would guess, is that the traditional path of opening restaurants (or bars, in this case) has been largely unsuccessful.

How many full-on molecular gastronomy restaurants exist in the U.S.? Three, right? The entire city of New York, where all kinds of avant-garde art flourishes, seems able to support only a single MG restaurant.

Maybe the public hasn't caught up yet. Maybe the public will never catch up. Or maybe this "art" is too expensive to produce given the small number of diners interested in consuming it.

Edited by TAPrice, 01 September 2010 - 05:16 AM.

[slkinsey]

As the author of a cocktail recipe sharing website, I'm neither in favor of IP rights for recipes, nor concerned about it coming to pass. My site has a place to note the date, creator, and source reference (link, book, whatever), and I fill it in whenever I know the information.

You realize, I hope, that this is much someone who maintains a music file sharing side saying that they aren't in favor of IP rights for recorded music?

That said, if I were really worried about not getting credit for my creations, I'd publish the recipes and blog about others making my drinks. Those using exactly the same recipe would be seen as validating my awesomeness. Those making variations would have their variations critiqued by me and discussed in the the blog's comments. Now all the attention is back on me and my greatness.

I agree that publicizing the recipes broadly is a very good idea to do for your most popular and/or famous recipes. That said, I wouldn't recommend blogging about other people making your drinks for a variety of reasons -- not least because it can make you look like a jerk, and meanwhile people can always suppose that you're taking claim for a drink you didn't create. Really, it's better to get it out into either print media or some widely respected online media source, where it will reach a wide audience, isn't likely to go dormant, and benefits in credibility from the presumed authority and fact-checking conferred.

[Splificator]

The thing to do is to get your ideas disseminated as widely as possible and as soon as possible as your ideas. No one is going to make any royalties on a drink - the commodity here is the bartender, not the cocktail. Your best bet is to enhance your reputation and make the "brand ambassador" and thus the brand look silly for plagiarism.

I agree that this is the best we can do here. It won't stop the shameless from stealing or the ignorant from applauding the thieves as creators, though. But it's not just mixologists who have to live with that galling reality. imagine how Howling Wolf felt when he first heard the Rolling Stones. Or, for that matter, how most journalists feel today, when they see their carefully-written stories percolating through the web with their bylines stripped off.

I'm sure the manufacturers would prefer to deal with someone with a reputation as truly creative than a hack.

I wouldn't generalize here.

[Fat Guy]

Todd, the other possible explanation is that, given the expense and talent required to create original modernist dishes, and the ease of copying them, there's no way for modernist cuisine to achieve much commercial success without better intellectual property protection for its practitioners. At least in the realm of fashion, you have ubiquitous innovation despite lack of much protection. This is a decent argument against extending the copyright laws to cover fashion designs, since the purpose of the copyright laws is to encourage creativity.

[EvergreenDan]

You realize, I hope, that this is much someone who maintains a music file sharing side saying that they aren't in favor of IP rights for recorded music?

Not to be humorless, but, no, I don't realize anything of the sort. First, my site is for creations of all sorts, including one's own, classics, and those you've found or recreated. Second, recipes are not subject to copyright laws and music most definitely is. And third, there is nothing fundamentally different about my site than a blogger making a bar's recipe and reporting on it. OK, my humor is now restored.

That said, I'm not perfect about recording my sources. I found this in there:
http://www.kindredco...am-lloyd-kinsey

... I wouldn't recommend blogging about other people making your drinks for a variety of reasons -- not least because it can make you look like a jerk, and meanwhile people can always suppose that you're taking claim for a drink you didn't create.

I think how you write about it would determine if you seem like a jerk or not. For example, "this variation uses more Cointreau, but I think the extra orange flavor dues the peppery flavors of the tequila" sounds fine to me. Or even, "Joe at Bar X makes it with homemade chili-infused tequila, which lends a great spicy dimension."

Second, blogging it puts it in "print" on a specific date. You can point to that to settle disputes about who invented it first.

Rather than lamenting the unfairness of the law, I'm offering a concrete proposal to at least improve the situation. I don't like the idea of someone taking credit for another's work, even if it isn't protected by copyright law. Hence the fields for attributing the creator and referencing the source in my website.

[Chris Amirault]

I'm in need of an example to discuss.

Last fall I posted the following:

I was at No. 9 Park last week, and Ted made me a Scotland the Brave, which I thought was a big, brash keeper:

2 1/2 (not a typo) oz Talisker
3/4 oz Fernet Branca
3/4 oz Cinzano rosso
1/2 oz Mathilde Orange XO

Those who have opinions about such things, what should I have done?

• Don't post anything.
• Post that Ted made me a great scotch drink.
• Post that Ted made me a drink with Talisker, Fernet Branca, Cinzano rosso, and Mathilde Orange XO.
• Post what I posted.
• Post what I posted with Ted's last name.

Finally, should I have gotten Ted's permission to do any of these things? I didn't -- though he knew about eGullet and saw I was writing down the ingredients as he responded to my detailed questions.

[KD1191]

Those who have opinions about such things, what should I have done?

For me, it tends to depend on my relationship with the bartender. If someone I didn't know well gave me measurements and didn't ask me not to disseminate it, I'd feel within my rights to post exactly as you did, though adding Ted's last name would have been great. If it was a situation where I believed I was getting more info than your average customer might, because I'm a regular or have established a friendship with the person, then I'd probably lean toward a post praising the drink and mentioning the components but not the exact amounts...unless I received specific permission.

The history of the drink or its similarity to another previously published recipe might also enter into my decision making process. For example, Joaquin Simo made me a terrific Scotch old-fashioned with Averna...it's pretty easy to go and recreate that drink even without any measurements. He also said it had been on Death & Co.'s menu some time ago, leading me to believe that it was not something that was "under wraps". A quick Google search tells me the recipe is published on the Compass Box website, so I'd have no qualms about pointing you there (PDF Link).

It's a balancing act...I'm not sure there can be a standard. That said, the only way to be sure you're not going to make an enemy of the bartender is to ask.

Edited by KD1191, 01 September 2010 - 08:44 AM.

[bostonapothecary]

welcome to the culinary arts "establishment". get ready to become increasingly "hassled by the man"

just like any other establishment its got courtiers (brand ambassadors), gurus (spirits reviewers & many authors), and just a few individuals (the increasingly rare "connoisseur")

even more like any other establishments, information is tightly controlled to maintain power structures. the establishment is afraid of transparency (books on spirits are usually pretty pathetic because no author is allowed to know very much which is why pacifying photography courtesy producers are emphasized).

transparency often tarnishes an image and dissipates their mythology (cognac producers don't want you do know about additives like "boise". champagne teaches everyone about manual disgorgement but then relies on the transfer method). they are not afraid of propaganda and misinformation (vermouth producers created lots of technical misinformation to create barriers to entry).

vast swarms of information are maliciously thrown at us from the establishment. all this information is mainly trivia and is used to eat up all our time so we can't get a grip on reality and really understand anything (express doubt and challenge a price).

the wine industry seems to be the king of trivia. until more connoisseurs have popped up recently (fighting the good fight), you would have spend your entire life learning only about the cru classifications of french wine and why they are justified but never about the wine itself (its rare examples of tonality, tension, and emotional content, etc.)

the establishment has a strong dictatorship of language. marketers have corrupted all our words for communicating (balanced, complex, etc) and forced definitions of categories (gin) to prevent innovation not protect consumers. connoisseurs have lost huge ground in developing new ways of communicating and culinary art isn't really going anywhere because of it.

a bartender is supposed to be a connoisseur (doing connoisseural, subversive, establishment busting things) and largely has been in the cocktail renaissance until this new ambassadorship trend has taken many to the dark side. although they use them all day and can love them, a bartender should always have an air of doubt about a brand and i don't see much of that. the demand for IP protection takes everything to a whole new level. unwarranted protection further stratifies the structure strengthening the establishment.

i think i have just usurped the word "connoisseur" and now have to strip from it all negative connotations of snooty, boring, dorks. a connoisseur is now an anti-establishment freedom fighter who would not want to see the IP-recipe protection.

my recipes are up for grabs. and if in your drunken exploration, you forget the source of your inspiration to put kirshwasser and single varietal honey in everything you drink, don't worry about it. its never the same as if i make it for you.

Edited by bostonapothecary, 01 September 2010 - 10:43 AM.

[lancastermike]

welcome to the culinary arts "establishment". get ready to become increasingly "hassled by the man"

just like any other establishment its got courtiers (brand ambassadors), gurus (spirits reviewers & many authors), and just a few individuals (the increasingly rare "connoisseur")

even more like any other establishments, information is tightly controlled to maintain power structures. the establishment is afraid of transparency (books on spirits are usually pretty pathetic because no author is allowed to know very much which is why pacifying photography courtesy producers are emphasized).

transparency often tarnishes an image and dissipates their mythology (cognac producers don't want you do know about additives like "boise". champagne teaches everyone about manual disgorgement but then relies on the transfer method). they are not afraid of propaganda and misinformation (vermouth producers created lots of technical misinformation to create barriers to entry).

vast swarms of information are maliciously thrown at us from the establishment. all this information is mainly trivia and is used to eat up all our time so we can't get a grip on reality and really understand anything (express doubt and challenge a price).

the wine industry seems to be the king of trivia. until more connoisseurs have popped up recently (fighting the good fight), you would have spend your entire life learning only about the cru classifications of french wine and why they are justified but never about the wine itself (its rare examples of tonality, tension, and emotional content, etc.)

the establishment has a strong dictatorship of language. marketers have corrupted all our words for communicating (balanced, complex, etc) and forced definitions of categories (gin) to prevent innovation not protect consumers. connoisseurs have lost huge ground in developing new ways of communicating and culinary art isn't really going anywhere because of it.

a bartender is supposed to be a connoisseur (doing connoisseural, subversive, establishment busting things) and largely has been in the cocktail renaissance until this new ambassadorship trend has taken many to the dark side. although they use them all day and can love them, a bartender should always have an air of doubt about a brand and i don't see much of that. the demand for IP protection takes everything to a whole new level. unwarranted protection further stratifies the structure strengthening the establishment.

i think i have just usurped the word "connoisseur" and now have to strip from it all negative connotations of snooty, boring, dorks. a connoisseur is now an anti-establishment freedom fighter who would not want to see the IP-recipe protection.

my recipes are up for grabs. and if in your drunken exploration, you forget the source of your inspiration to put kirshwasser and single varietal honey in everything you drink, don't worry about it. its never the same as if i make it for you.

To the ramparts, dude. Pretty much this entire thread eludes me, and I think your attitude is the best. I'll climb up there with you and fire empty bottles at them when they come for you. One question, wine has emotions?

[cdh]

OK... a quick pair of queries to the proponents of IP protection for cocktails:

1) To what extent would the work-for-hire doctrine apply to your new rule? And

2) How about protection against derivative works?

Would the bartender own the recipes, or does the owner of the bar? Would you like to see a regime where a bartender can be enjoined from mixing drinks if he leaves the employ of the place he developed his style? (Anybody know if any bars make employees sign NDAs or non-competes or covenants to assign IP rights?)

Edited by cdh, 01 September 2010 - 12:35 PM.

[TAPrice]

Todd, the other possible explanation is that, given the expense and talent required to create original modernist dishes, and the ease of copying them, there's no way for modernist cuisine to achieve much commercial success without better intellectual property protection for its practitioners. At least in the realm of fashion, you have ubiquitous innovation despite lack of much protection. This is a decent argument against extending the copyright laws to cover fashion designs, since the purpose of the copyright laws is to encourage creativity.

No, I actually don't think that's another possibility. Your argument is based on the premiss that these dishes are difficult and expensive to create yet cheap and easy to copy. Recreating these dishes surely requires a significant investment in equipment and training. I realize that you're more familiar with these chefs and restaurants than I am, so I'm happy to be proven wrong.

And even if we accept that premiss, I just don't understand what you're arguing. In real, concrete terms, what substantial harm have these restaurants and bars suffered by any poaching of their intellectual property? Did people really cancel reservations at Alinea, because they found out they could get a similar dish at that copycat restaurant in Australia? Were drinkers really passing up Tailor, because they'd heard a consultant had put a couple of Freeman's drinks on some menu in Kansas?

I can see the argument that Freeman deserves compensation if a consultant took his drink and presented it as something unique. But how much is that drink worth? What percentage of the consulting fee should go to Freeman, if not legally than morally? I'd be shocked if the amount of money was even in the four figures. Nickles and dimes that wouldn't make a difference in the bottom line of a business.

And if bartenders or chefs of a certain artistic bent got copyright protection (I believe your arguing that only certain culinary creations merit protection, not every recipe ever created), how will they exploit this economically? I just don't see where it would generate a significant new revenue stream.

In the real world, copyrights are almost all entirely worthless.

Yes, it might stick in the craw of talented chefs that my family snapshots and tossed off blog posts all receive copyright protection, while they sweat over dishes and drinks that aren't protected. But in reality, my copyrights are worthless. Just because I have the right to economically exploit my family snapshots, it doesn't mean that I'll ever make a penny off of them. On the other hand, even without copyright protection, chefs and bartenders have numerous, established ways to exploit their creative efforts: open restaurants and bars, write books, teach classes, present recipes at seminars, consult, etc.

[evo-lution]

I have to take exception to a particular part of the article;

(Fat washing, for example, the process by which a spirit can be infused with, say, bacon, was pioneered in part by Freeman, yet is often attributed to others.)

That's one technique* he really can't claim to be his own.

*Ultimately the technique called infusion.

[Fat Guy]

cdh: Pete Wells, in his story New Era of the Recipe Burglar, ultimately argues that restaurants not chefs will benefit from culinary copyright. But I think he misses the point that there are so many chef-owned restaurants. I spoke to him about it for about an hour when he was writing the piece but he remained unconvinced.

Todd: Most copyrights are worthless, just as most songs are worthless, but the potential for a big hit can motivate a lot of creation.

[TAPrice]

Todd: Most copyrights are worthless, just as most songs are worthless, but the potential for a big hit can motivate a lot of creation.

Fair enough, but what's the equivalent of a "big hit" in the culinary world? Even if chefs and bartenders had copyright protection, how do you envision they would cash in on it?

It's easy to say someone could get rich, but much harder to convincingly explain how.

Edited by TAPrice, 01 September 2010 - 01:09 PM.

[Fat Guy]

I think if you make a list of most-copied dishes you get close to a template for the sort of thing that could generate revenue through royalties. Look at something like molten-center chocolate cake. There the origins aren't completely clear, but if a chef could make a clear claim to having created it then it would be the culinary equivalent of a chart topper. But more fundamentally the field of cuisine is not currently organized to encourage creativity. It is an imitative craft, where change tends to be incremental and only a tiny minority of practitioners strive for originality. I imagine that state of affairs would change radically if serious incentives for creativity came into play.

[cdh]

FG: I think you're underestimating the chilling power of a copyright claim, and just assuming that current-day restaurant owners will permit a talented chef or bartender to leave and set up their own shop in competition.

When a cause of action comes complete with presumptions in favor of injunction, statutory damages many times in excess of real provable damages, and shifts all attorneys' fees for both sides to the losing party, the mere idle mention of such a suit would make most sensible people run for the hills to avoid crossing anybody with the standing to bring such a case. I think culinary IP would result in consolidation of power in the hands of the chains and big-money owners who have the legal budget to make these sorts of threats. Would you invest in a venture that had any chance of getting slapped with one of those suits? How many intermediary structures would you create to interpose between your own assets and any liability that might result from such an investment?

Edited by cdh, 01 September 2010 - 02:02 PM.

[Chris Hennes]

Chilling indeed. A world in which no one dares innovate for fear that someone already holds the rights to their invention and is just waiting to sue them into the ground. "Gee, I don't think anyone has ever done this cocktail before... but I guess I better hire a team of attorneys to scour the records to make sure."

[HungryC]

Let's not forget that the very concept of protected intellectual property has a specific cultural basis, yet food is the great cross-cultural universal. We all eat, and frequently the table is the initial point of cultural understanding and curiosity. Some cultures don't recognize the ownership of music, and I think (historically) food & drink have a similar function in Western culture....an area of material culture where riffing, copying, and reproduction is the very essence of the craft. The ease of finding info in a digital world means that "sampling" will continue to spread (just try to talk sense to undergraduates about plagiarism).

[Dakki]

LOL chilling effects. That reminds me of this:

"The Official eGullet Cookbook infringes 235 of my patents. I'm not going to tell you what they are so you can take them out; I'm just going to reserve the right to sue any user who doesn't pay me a royalty."

[Fat Guy]

Since your "plating" options are quite limited when it comes to cocktails, I find it unlikely that you could sell it to a court as sculpture, or performance art, even if there were other culinary precedents for such a thing.

I think this is where the work of someone like Freeman is a break from the past. I'm not deeply familiar with his oeuvre but take for example his melon ball cocktail. Here you have a cocktail that's not even served in a glass. ("Solid cocktails," he calls them.) The melon ball cocktail is served in a dish and looks sort of like a psychedelic fried egg. You've got the vodka-infused melon ball in the center, which looks like a yolk, surrounded by a pineapple-foam white, garnished with little cubes of vodka gelatin that look like disproportionate crystals of kosher salt. I think it's pretty brilliant. Even before he adds the little cubes of vodka gelatin I think something like that crosses the threshold of creation.

Now I assume the melon ball cocktail has by now faded into memory, as most dishes do. But what if in the summer of 2008 someone from Applebee's had been drinking at the bar at Tailor, saw this thing, took it back to the test kitchen at headquarters, and put it on the cocktail list at 1,600 Applebee's restaurants, proceeding to sell 16,000 of them a day or 5.84 million a year for an annual profit of, say, US$17.52 million. I think Freeman deserves a cut of that.

[evo-lution]

I think Freeman deserves a cut of that.

Which he can then pass onto the creator of vodka-jelly...

Does anyone know if Freeman is still using the hard-shake method?

http://newyork.grubstreet.com/2007/12/eben_freeman_of_tailor_imparts.html

The headline alone makes the Atlantic article laughable.

Eben Freeman of Tailor Imparts the Secrets of the ‘Hard Shake’

I know he's not claiming to have created the hard-shake but the fact he uses someone elses technique defeats his argument doesn't it? Or am I looking at this the wrong way?!?

Now don't get me wrong, it sucks when someone steals your idea and claims to have come up with it themselves but the thought behind the Atlantic article is laughable.

Personally speaking I'd like to see bartenders give credit (for drinks/techniques that they've picked up elsewhere) to the originator wherever possible. It's something I've always done as a few posters/lurkers here will testify.

There's nothing more cringeworthy than someone trying to pass off someone else's work as their own.

Edited by evo-lution, 02 September 2010 - 02:35 AM.

[haresfur]

There's a big difference between, on the one hand, taking common-knowledge recipes like Hollandaise sauce or the Daiquiri and making some unremarkable incremental changes and, on the other hand, creating a dish like Adria's Carrot Air with Mandarin Concentrate or Freeman's Smoked Coke with Bourbon. The type of innovation and creation associated with recipes like that is more akin to categories of creative expression that are already protected (art, music, literature, sculptural works, etc.). This new reality demands thinking beyond the old "you can't copyright a list of ingredients" reasoning.

I don't think this is correct in practice - a number of the best known music copyright cases involve people staking claims to simple melody snippets or chord progressions that are far from a large innovative or creative work as a whole. The George Harrison "My Sweet Lord" and a recent Australian case around the Kookaburra Song come to mind. There doesn't seem to be any distinction in copyright law between unremarkable incremental changes and high art.

I can sympathize with his frustration. Here you have this incredibly creative guy who puts in long, hard hours inventing new cocktails that are an order of magnitude more creative than rum and Coke. He's using cutting-edge processes and when you're working with smoked Coca Cola there's an economic investment beyond just buying a bunch of bottles of stuff. Yet the world is saying, "What you do doesn't deserve the protection of the copyright law." Meanwhile, every photograph no matter how bad, every message-board post on the internet no matter how inane, every book or article no matter how stupid, every song, etc., is protected by that body of law. It seems wrong to me, and I can see why it would seem wrong to him.

But you can't copyright creativity - just the product of that creativity. I can sympathize, too, but economic investment and hard work just don't enter into the consideration of whether something is worthy of protection or not. And maybe someone can correct me if I'm wrong but I didn't think you could copyright a technique - that's where you would have to look to patents or some other form of IP protection.

Todd, the other possible explanation is that, given the expense and talent required to create original modernist dishes, and the ease of copying them, there's no way for modernist cuisine to achieve much commercial success without better intellectual property protection for its practitioners. At least in the realm of fashion, you have ubiquitous innovation despite lack of much protection. This is a decent argument against extending the copyright laws to cover fashion designs, since the purpose of the copyright laws is to encourage creativity.

Putting aside discussion of whether the purpose of the copyright laws is to encourage creativity or whether they have the opposite effect, I could argue that there has been considerable innovation in cooking and cocktail mixing without protection, too. It just appears that some people think their efforts are undervalued and undercompensated. For IP protection to make any difference, there would have to be a significant way for it to generate revenue. I'm scratching my head as to what that would be.

My impression from the talk was that Eben might want this rights but recognized that U.S. law would never grant them. We should probably be carefully about discerning his motives from this Atlantic story (as I noted, even the basic facts about the presenters weren't fact checked). Then again, he did say that someone should get sued.

I don't understand his motives. I just don't see how IP protection would enhance his revenue. I can see how it might make it easier to punish someone who steals an idea. So perhaps litigation is where money could be made. I can understand wanting credit for your work. As a non-professional I'm not sure if I'd be pleased or pissed to see one of my drinks on a bar menu with no attribution to my nom d'electron. Aside from those, are there other possible motives at play?

[haresfur]

I think this is where the work of someone like Freeman is a break from the past. I'm not deeply familiar with his oeuvre but take for example his melon ball cocktail. Here you have a cocktail that's not even served in a glass. ("Solid cocktails," he calls them.) The melon ball cocktail is served in a dish and looks sort of like a psychedelic fried egg. You've got the vodka-infused melon ball in the center, which looks like a yolk, surrounded by a pineapple-foam white, garnished with little cubes of vodka gelatin that look like disproportionate crystals of kosher salt. I think it's pretty brilliant. Even before he adds the little cubes of vodka gelatin I think something like that crosses the threshold of creation.

Now I assume the melon ball cocktail has by now faded into memory, as most dishes do. But what if in the summer of 2008 someone from Applebee's had been drinking at the bar at Tailor, saw this thing, took it back to the test kitchen at headquarters, and put it on the cocktail list at 1,600 Applebee's restaurants, proceeding to sell 16,000 of them a day or 5.84 million a year for an annual profit of, say, US$17.52 million. I think Freeman deserves a cut of that.

Don't get me wrong, I'd be happy to see him get a cut if some huge chain copied his work. But why would they bother? - the logistics seem impractical and they could sell nearly as many "martinis". Besides, jello shots have been consumed by university students for a long time and spiked watermelon has been around for even longer. It appears that the Surreal Gourmet started making other food look like bacon and eggs over a decade ago (think there was also an app. of honeydew and cantaloupe cut to look like a fried egg). So it looks like he took preexisting elements and combined them in a creative way. I don't know how it would play out in court if the situation were covered under copyright law but I tend not to bet against acres of lawyers.

[cdh]

Nobody has yet addressed the biggest fairness problem underlying this suggestion. We're being told that it's just not fair that all these brilliant creative geniuses behind the stick are sweating their brows off making unique libations that are getting shamelessly ripped off, and there aught to be a law...

Moving copyright into this field would bring along its work-for-hire doctrine. That means that what Freeman learned and invented at WD-50 would have been owned by Wylie and his investors, any of whom could likely have stopped Freeman from leaving with Sam Mason and working at Tailor at all. And no write-up of Tailor indicates Freeman had any ownership stake in Tailor, so (unless he was an independent contractor who successfully evaded signing a work-for-hire IP agreement), he'd have no ownership interest in these drinks that we've been told are so deserving reward and protection.