151 replies to this topic

[Fat Guy]

As far as I know Freeman is a partner in Tailor. Not that we have to look far for plenty of other examples of bartenders owning bars.

[Kohai]

But I think the point is that there are plenty of creative bartenders who don't own bars. Would you support their creative drinks being viewed as works for hire and therefore owned by the bar rather than the bartender who worked there?

Edited by Kohai, 02 September 2010 - 09:05 AM.

[Fat Guy]

That's something to be negotiated when a bartender, chef or consultant is hired. Someone of Freeman's caliber can say, if a restaurant company tries to hire him, okay, I'll come work for you but I own whatever I invent. The company can then choose to hire Freeman for the prestige, hire someone else, or offer Freeman more money to come work on the company's terms. For younger bartenders (or others) starting out, yes, the employer will own the work product.

Most people will never invent anything worthwhile. The few that do presumably have more ideas in reserve. That's what they can use to attract investors when it comes time to own a business, or it can be the basis for negotiating a new contract with the current or future employer.

Remember, right now, a bartender or chef's ideas have no intellectual-property value at all. So objecting to IP rights on the basis that they'll sometimes flow to employers makes no sense. Nobody will lose anything over the zero value we currently see. Some will gain. Some will not be able to take advantage. Some will get swindled. That's the way it is.

[bostonapothecary]

http://www.nytimes.c...anted=2&_r=1

from the front page of the new york times. a patent war for the "plumpy'nut" peanut paste recipe which is used more or less solely to feed malnourished children in developing countries.

the recipe for this peanut paste is pathetically simple. its gives some cocktail recipes a run for their money in the pathetically simple. the prior art to me seems to make a patent unjustifiable.

if this patent is unethical because people profit from other's charity who seek to help the malnourished lowest members of society, i'd argue that a cocktail recipe patent is also unethical because most imbibers are malnourished in artistic quality.

[Kohai]

What if we approach this from another angle... What if bars couldn't, er, "borrow" from other creative bartenders without royalties? It seems that no other bar would be able to do (for example) bacon-washing or maybe any kind of fat-washing if IP rights were stringently enforced. Can you imagine the drinking landscape if you had to go to only a few bars in the country (or the ones who could afford to pay royalties) to get the really good, creative drinks? Someone mentioned a "chilling effect" above but I think it's more like an Ice Age.

Ideas are passed around. People share, riff, play, tinker. They steal. The best chefs do it. Picasso did it. Eben Freemen is just the most vocal claimant of the IP for fat-washing but bartenders were doing bacon vodka for years before I even heard of him.

[Kohai]

The more I think about this the more ludicrous it begins to seem. Does Freemen own solid cocktails or fat-washing (neither of which, as some have noted above, he can be said to have really "invented" in a truly meaningful way)? Does Uyeda own the Hard Shake? Does Fosbury own the Flop? Who owns the curve ball? Who owns deep-fried ice cream? Someone had to invent all these techniques - they just did it before IP lawyers existed.

Can simple techniques and tricks like these really be called enforceable IP?

I think Freemen is less concerned with getting paid (which is obviously not going to happen) and more concerned with getting credit. (Not that I'm calling him attention-seeking or anything....) And credit is his due. I talk about him every time I tell people about fat-washed cocktails on our menus. At the same time, it's absurd to suggest I shouldn't be fat-washing because it's not "my" technique.

It's sad that people don't get credit for stuff they invented (or just popularized) but as you say above, FG - "that's the way it is".

[Dakki]

http://www.nytimes.com/2010/09/05/magazine/05Plumpy-t.html?pagewanted=2&_r=1&hp

from the front page of the new york times. a patent war for the "plumpy'nut" peanut paste recipe which is used more or less solely to feed malnourished children in developing countries.

the recipe for this peanut paste is pathetically simple. its gives some cocktail recipes a run for their money in the pathetically simple. the prior art to me seems to make a patent unjustifiable.

if this patent is unethical because people profit from other's charity who seek to help the malnourished lowest members of society, i'd argue that a cocktail recipe patent is also unethical because most imbibers are malnourished in artistic quality.

What a lovely bunch of people those makers of glorified peanut butter are.

[MikeHartnett]

I'm not sure this is being thought through very well. What benefit does a bartender see if a drink is protected in some way? A bartender profits in two primary ways from the creation of a drink: making and selling the drink at their bar, or collecting recipes in a book and selling it. Allowing some form of protection for the recipe itself does not aid either; a bar is not going to see a spike in sales because they are the only bar that can claim ownership of a certain drink (because people don't generally travel exclusively to have a drink, and because protecting a recipe would still allow another bartender to make a similar drink with nominally different measurements, etc., just like knock-off soft drinks) and recipe books are already copyrightable- no change there. The only arguable benefit to the creating bartender is acknowledgment, and that really isn't the driving force behind intellectual property protection.

It's similar to fashion: Some designers complain that they have no such protection for their designs, but for the most part, it's an industry built on constant knock-offs and improvements on the work of others. Protecting work would lead to a static industry, or at least an industry that would have to completely redesign the way it works to accommodate complete innovation with every new creation.

[haresfur]

Remember, right now, a bartender or chef's ideas have no intellectual-property value at all. So objecting to IP rights on the basis that they'll sometimes flow to employers makes no sense. Nobody will lose anything over the zero value we currently see. Some will gain. Some will not be able to take advantage. Some will get swindled. That's the way it is.

A lot of people will loose. Bartenders won't be able to make the drinks they invented if they move to another bar. They may not even be able to make variations on those drinks. No one else will be able to make similar drinks. We won't be able to have the vibrant discussions that include recipes. And I believe it is the educated enthusiastic aficionados that really are driving the renaissance of cocktails because they are the ones willing to seek out and pay for a good drink.

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.

This hits the heart of the matter. It's the execution that is the real value.

[Fat Guy]

What if bars couldn't, er, "borrow" from other creative bartenders without royalties?

They would have to pay royalties or come up with creative ideas of their own.

[Kohai]

If you can say with a straight face that I should be paying Eben Freemen every time I fat-wash or make a Jell-O shot I will be... amused, to say the least.

If I have misunderstood you somehow, please correct me.

[KD1191]

If patents were established for culinary processes and Eben was able to obtain a patent for such processes, then yes. Even if FG proposes the former, it doesn't even begin to suggest the latter...as I said above, I doubt Freemen could come close to satisfying the necessary requirements to patent any of the processes discussed so far in this thread.

Edited by KD1191, 02 September 2010 - 08:32 PM.

[Fat Guy]

If you invent a process like fat washing, that's something you can patent -- today, under current patent law. There are plenty of culinary patents. I'm sure Nabisco has a villion of them. I don't think Freeman invented it, so it would be hard for him to patent it. If he had invented it and patented it then, yes, I definitely think it would make sense for him to get a licensing fee from anyone who wants to use his process for the duration of the patent.

What we're talking about here, though, is copyright. What I'm saying is that if Freeman creates the melon ball cocktail and someone else wants to serve it, there should be a royalty arrangement available.

Big food companies are already protected by the intellectual property laws because they can afford to push through patent applications for every little thing they do, and they can afford to defend their trademarks. Individual chefs and restaurants can't afford to do that, just as individual musicians, authors, artists, photographers, etc., can't. That's why they need the protection of the copyright laws.

[TAPrice]

Big food companies are already protected by the intellectual property laws because they can afford to push through patent applications for every little thing they do, and they can afford to defend their trademarks. Individual chefs and restaurants can't afford to do that, just as individual musicians, authors, artists, photographers, etc., can't. That's why they need the protection of the copyright laws.

You're arguing that the type of protection granted to creative act (patent vs. copyright, in this case) should be based on the economic means of the producer?

Because patents seem like a more appropriate protection for these new dishes which exist primarily because of original techniques.

[Fat Guy]

Whether a patent or a copyright is appropriate for a given piece of intellectual property has nothing to do with cost. It has to do with definitions. Copyright protects works of authorship, so it is the appropriate type of protection for a restaurant dish. It also has the benefit of being a low- or no-cost form of intellectual-property protection (though enforcement can be costly), and therefore the only one realistically attainable by chefs as opposed to big food companies. Right now a chef can pursue a patent for a process if he or she invents that process, but there is no copyright protection available for works of authorship (at least that's the conventional wisdom; I'd be interested to see a test case where the briefs make the right arguments). It's like saying to a musician, if you invent the guitar you can get a patent on it. But, since the guitar already exists, if you write a song for the guitar anyone can copy it for free.

[TAPrice]

Whether a patent or a copyright is appropriate for a given piece of intellectual property has nothing to do with cost. It has to do with definitions.

Agreed, but you seemed to by arguing the opposite in the passage quoted in my previous post. Thanks for the clarification.

[Fat Guy]

Cost doesn't change the definitions but cost is a reason to offer copyright protection for works of authorship not just patent protection for invented processes.

[bostonapothecary]

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.

the technique is called "enfleurage" and has been practiced by perfumers since the 19th century.

are there really any techniques being used currently that do not have such closely tied "prior art"?

[Chris Amirault]

Well, here's an interesting example of "prior art." From the Tasting Table Chicago daily PR feed:

What to do with a glut of peaches? Muddle them into a cocktail that captures summer in a glass, says Debbi Peek.

The architect of The Bristol's cocktail program regularly raids chef Chris Pandel's walk-in cooler, turning seasonal produce into special cocktails to augment the drinks list, which is rooted in classic drinks (including, for our money, the best Pisco Sour in town).

For her most recent creation, the Peach Smash ($10), Peek muddles local white peaches with mint and raw ginger purée. She shakes the mixture with bourbon and lemon, and garnishes it with a slice of peach and mint blossoms--if Pandel has them in.

I think that Dale DeGroff -- hell, Jerry Thomas -- would have something to say about who should take credit for "her most recent creation." Turtles all the way down, I tell you....

[mkayahara]

Well, here's an interesting example of "prior art." From the Tasting Table Chicago daily PR feed:

What to do with a glut of peaches? Muddle them into a cocktail that captures summer in a glass, says Debbi Peek.

The architect of The Bristol's cocktail program regularly raids chef Chris Pandel's walk-in cooler, turning seasonal produce into special cocktails to augment the drinks list, which is rooted in classic drinks (including, for our money, the best Pisco Sour in town).

For her most recent creation, the Peach Smash ($10), Peek muddles local white peaches with mint and raw ginger purée. She shakes the mixture with bourbon and lemon, and garnishes it with a slice of peach and mint blossoms--if Pandel has them in.

I think that Dale DeGroff -- hell, Jerry Thomas -- would have something to say about who should take credit for "her most recent creation." Turtles all the way down, I tell you....

Though I imagine she would argue that her inclusion of ginger puree and the mint-blossom garnish make her drink sufficiently distinct from DeGroff's or Thomas's versions to avoid having to pay royalties.

Of course, if there were copyright protections in place, one presumes she would have to make that argument via her lawyer, in front of a judge, in which case one hopes that her bar has deep pockets.

[Dave the Cook]

Jerry Thomas's work is in the public domain, so both DeGroff and Peek would be off the infringement hook.

[mkayahara]

Well, yes, but my broader point still stands: in a domain where we can't even decide when a change in proportions requires a new name - you can call it a Martini whether it's 1:1 or 100:1 - how would we ever be able to decide when a change was sufficient to avoid royalties? It would all end up being fought in court, at great expense to bars and, by extension, customers.

[Dakki]

I've kind of lost track now. Are we arguing whether recipes or techniques should be patentable, copyrightable or what, exactly?

If it's patents, we get patent trolls, submarine patents, patents granted on obvious innovations and/or things that have plenty of prior art and all the rest of the stuff that plagues tech companies, particularly software. I can show you some neat examples of each if you care.

If it's copyright, we're talking about author's life + 70, or 120 in the case of corporate authors, with all the arguments about fair use and so on.

An illustration of the sort of thing that happens when you let the copyright lawyers in the door. (I picked this article because it allows you to compare the supposedly infringing work with the original; the final judgment is covered here).

I don't think it's going to happen, but if recipes themselves were to get IP protection I imagine a future where cooks and bartenders are only allowed by their employers to prepare from recipes that are in the public domain or specifically licensed by them, on the chance that their off-the-cuff creation infringes on someone's patent/copyright and lands them in court.

[Fat Guy]

Like I said, people who don't believe in intellectual-property laws at all aren't likely to be convinced that culinary copyrights are a good idea. But it may be possible to convince those who believe in intellectual-property protections in general that culinary creations are as deserving of copyright protection as anything else. Culinary inventions/processes are already patentable -- Homaro Cantu has dozens of such patents, and the big food corporations have thousands -- so that's not something that needs to be advocated.

[mhagglund]

Is there a certain point when we should step back from this, pull the cocktail off its pedestal a bit and remind ourselves that this is food and drink we're talking about? Food and drink should be fun, and the point should be to enjoy it. Sharing recipes and technique is a way to try to advance that enjoyment.
As a bartender I am proud of what I do, the drinks I make, and how my quests react when they taste what I put in front of them. If someone wants to replicate a drink at home or in their bar; more power to them. I hope they're able to make it better and maybe even show me a thing or two. And if what I'm making is not something that I've personally come up with, then I'm damn sure going to give credit to those that deserve it. In a culinary community I think that there has to be a certain pride in giving that credit to those who deserve it, but also pride in sharing ideas so that the community as a whole can continue to advance. The point to constant tinkering of recipes is the realization that as with any art we're constantly in search of perfection, however unattainable it is; and perhaps by sharing recipes and techniques we can move a bit closer to that goal.
If people are going to claim another person's recipe as their own to advance themselves in this day and internet-crazed age then I think it's simply a matter of time until that person is called out as a hack. If they don't have the courtesy and professionalism to give credit where it's due then that is a shame, and at that point I wouldn't really consider them as an active part of the community any more. Yet I don't think that people such as that are going to have any lasting impact- they're not actually creating anything new. The creative people are always going to keep creating, and that's why I think they'll continue to make a lasting name for themselves; not simply one that results in an ambassadorship. Not all ambassadors stick around very long, probably for that reason.

[slkinsey]

Like I said, people who don't believe in intellectual-property laws at all aren't likely to be convinced that culinary copyrights are a good idea. But it may be possible to convince those who believe in intellectual-property protections in general that culinary creations are as deserving of copyright protection as anything else. Culinary inventions/processes are already patentable -- Homaro Cantu has dozens of such patents, and the big food corporations have thousands -- so that's not something that needs to be advocated.

Copyright is a peculiar thing. The basis premise behind copyright in the United States is not to preserve the moral rights of the creator or anything like that (this is different from, say, French copyright law which recognizes the moral rights of the artist). The reason US copyright law confers certain rights to the authors of certain works is the belief that doing so promotes "the Progress of Science and useful Arts." So every time one might contemplate extending these into a previously uncovered field of creative work, the question is not whether this will benefit the creators working in that field or preserve their economic or moral rights, but rather whether providing these benefits and rights to the contemplated creators will benefit the field overall and, by extension, society at large by promoting the creation of more and/or better works. Copyright did not originally cover things like musical compositions or recorded works, for example. One reason why copyright has not extended into the fashion field is that closely-modeled design "copies" help to create the fashion trends which lead people to abandon last year's styles in favor of this year's styles, and this is something that not only drives the creativity but also the economics of the fashion industry. Copyrights similar to those existing in prose writing would be detrimental to "progress" in this field, and therefore it seems unlikely that these rights will be extended into this field. There are serious questions as to whether extending copyright protections into the realm of culinary and mixological field would either promote the progress of these fields through the creation of more or better works, or whether any such protections could realistically provide any benefits to creators in these fields.

[EvergreenDan]

... doing so promotes "the Progress of Science and useful Arts." ...

Thanks for an interesting and educational post.

[Fat Guy]

I've been assuming (and saying) all along that

the purpose of the copyright laws is to encourage creativity.

And as discussed above I don't think the fashion industry parallels the culinary world. There is a lot of creativity, and a premium on creativity, in fashion. Maybe it would be increased or decreased by copyright protection. I don't know. But in the culinary world it's hard to imagine less creativity than we have now. Most cities don't have a single creative chef or mixologist. In the largest cities, places like New York where in fashion you have creativity galore, you have only a handful of creative people in a field that is largely entrenched and imitative. Granting copyright protection to culinary creations may be one way to shift the emphasis from imitation to creativity, by keeping pace with the reality of the changes in the way cuisine is perceived on the leading edge.

[slkinsey]

Granting copyright protection to culinary creations may be one way to shift the emphasis from imitation to creativity, by keeping pace with the reality of the changes in the way cuisine is perceived on the leading edge.

I'd say that's a significantly open question, especially with respect to mixology. You seem to be proceeding from the standpoint that creations like Eben's Melon Ball Cocktail represent a desirable or realistic outcome of this kind of creativity. But not only would I challenge the notion that this kind of creativity and departure would result in the cocktails world if copyright were extended to mixological authorship, but frankly I would challenge the notion that the Melon Ball Cocktail is a cocktail at all. In my opinion it fails the first and most fundamental test, because it isn't a beverage. I respect and enjoy this side of Eben's work, but this sort of thing is not the future of cocktails.

At any level below the level of "re-interpretive whimsy" -- which is to say, at the level where someone is creating a beverage that people drink -- I don't see that any copyright-like protection would even be workable, never mind helping to drive creativity. There is no way, for example, that Eben could possibly meaningfully protect his intellectual property in the Waylon Cocktail even if copyright applied. If I were to sell a cocktail in my bar comprised of house-smoked cola syrup, Woodford Reserve bourbon and soda water, and if I were to call that drink the Waylon, what basis would he possibly have to extract some kind of royalty payment from me or enjoin me from making and selling the drink? There's no way anyone can claim exclusive intellectual property ownership over the concept of a bourbon and smoked cola highball. But let's say that he could claim a copyright for the Waylon. Okay. So I can't copy it. But what is copying, in this context? What might have to change so that my drink doesn't violate his copyright? Clearly he can't own the exclusive rights to the name, or even that name associated with a bourbon and smoked cola highball. So would it be enough if I changed the brand of bourbon? What about if my ratios were a bit different? Maybe I could use a different technique to smoke the cola syrup, or used different woods to produce the smoke? What about if I used a different garnish? Perhaps I could serve it slightly unmixed so it made a layered "sunset" presentation in the glass? Many of these techniques would enable me to sell a bourbon and smoked cola highball named the Waylon that did not violate Eben's copyright. And they're all easy to do.

Another interesting thing to observe is that none of the currently protected forms has a utilitarian use. A written work can be anything. A musical composition can be anything. What you experience them for is the creativity. A piece of fashion, on the other hand, is something you wear as clothing. A work of culinary or mixological invention is something you eat or drink. And because of this, the opportunities for creativity and invention are not the same as they are for written works and musical compositions, etc. Meanwhile, if someone creates a kind of far-out creative work like some of Adria's creations or Eben's Melon Ball Cocktail, it might be possible to protect these creations under existing copyright law as performance art or a kind of "edible sculpture" if the creators would like to go to the trouble of jumping through the hoops and accept the limitations required to maintain the creations' legitimacy as such. But if Eben would like to prevent others from profiting from his idea of making a bourbon and smoked cola highball, this is no more possible that it is for Anne Rice to prevent the makers of Twilight rom profiting from her idea of romantic, good-looking young vampires living in the modern world.

But, again, there is simply no way that even full copyright-like protections would have any applicability to the sorts of drinks and dishes that make up 99.99% of what is served in the world. No one will ever be able to meaningfully own the copyright for something like the Red Hook cocktail (made of rye whiskey, punt e mes and maraschino liqueur) in a way that is useful, or that could possibly promote the advancement of creativity in the cocktails field. The idea of extending copyright protection to cocktails would make every single bartender's gin and tonic an automatically protected work of authorship, just as every crappy cellphone snapshot is an automatically protected work of authorship. But so what? It wouldn't stop other people from making gin and tonics any more than your copyright ownership of the pictures on your cell phone prevents other people from making the exact same pictures with their cell phones.


What I don't see in any of this is any kind of reasonable argument for why and how extending copyright protection to culinary and mixological works would stimulate the creation of more and/or better culinary and mixological creations, and frankly it seems as though it would likely have the opposite effect.

[Fat Guy]

Another interesting thing to observe is that none of the currently protected forms has a utilitarian use. A written work can be anything. A musical composition can be anything. What you experience them for is the creativity. A piece of fashion, on the other hand, is something you wear as clothing. A work of culinary or mixological invention is something you eat or drink. And because of this, the opportunities for creativity and invention are not the same as they are for written works and musical compositions, etc.

Architectural works are protected, and they tend to be substantially more utilitarian than culinary creations. Although it's possible to eat a culinary or mixological invention, it's not as though at the creative end of the spectrum anybody is eating or drinking this stuff for actual necessary nourishment.

And I'm not sure how it follows that there's less opportunity for creativity with food and drink than with music etc. Each form has mainstream restrictions and the departures therefrom. A lot of these other fields are way ahead of the culinary arts, which are just now in their modernist period, but someone like Adria demonstrates the potential of the art.

It may be that with standard cocktails in a glass there's nothing to stop minor changes from circumventing copyrights, at least not with any current works or their logical derivatives. (Likewise, if you paraphrase you can avoid literary copyright.) Or it may be that sometimes there's enough value in making and serving an exact copy, and marketing it that way, to justify paying a royalty -- which would make the ease of minor alterations irrelevant. Also, what Freeman's melon ball does, when it triggers the debate "is it a cocktail?" is demonstrate that there are directions people haven't thought much about yet. Right now the incentive structure doesn't encourage a lot of people to think that way.