Intellectual Property, Copyright & Cocktails

[Chris Amirault]

Fascinating piece in the Atlantic today by Chantal Martineau on cocktails, intellectual property, and related issues, prominently featuring Eben Freeman. An excerpt:

Last month, at Tales of the Cocktail, ... Eben Freeman, best known as the creator of smoked Coke and "solid" cocktails at the now-defunct Tailor in Manhattan's SoHo neighborhood, gave a seminar on protecting one's intellectual property as a bartender. ... [H]e came up with the idea for the talk after becoming fed up with other bartenders and establishments taking credit for and profiting from his recipes and techniques. ... "Someone needs to get sued ... to set a precedent," he told me.

"In no other creative business can you so easily identify money attached to your creative property," Freeman went on. "There is an implied commerce to our intellectual property. Yet we have less protection than anyone else."

Less protection, as eGullet Society members know, because the ingredients and ratios of ingredients cannot be copyrighted.

We've been through this before in our discussion about culinary plagiarism started with this "Sincerest Form" Daily Gullet piece. But the world of cocktails is a bit different, particularly, Freeman asserts, given the preponderance of the "brand ambassadors" that big producers hire to push product:

The bartender not only acts as an advocate but is also expected to create signature cocktail recipes using the product he or she is pushing. Only, these days, the model is so prevalent that liquor brands will tap just about anybody to be a brand ambassador. Oftentimes, these young bartenders ... don't have the experience required to create their own cocktail recipes. And so they Google a recipe and tweak it, or simply use something they learned from a mentor....

[Freeman said,] "In no other creative field do you find people who are so easily able to insert themselves into the scene."

Though I find the brand ambassador trend somewhat unnerving as well, I also worry about reducing the amiable tradition of bartenders sharing their recipes with each other into the goose that lays Diageo's golden eggs. Society members have shared hundreds, if not thousands, of cocktail recipes in eG Forums, members that include Don Lee, Dave Wondrich, Audrey Saunders, Paul Clarke, Toby Maloney, Phil Ward, and many, many more. What a shame if that tradition -- which is many decades older than the eGullet Society -- were to be eradicated.

[Chris Hennes]

I'm reminded of an article I saw at Ars Technica which discusses a paper published in the Virginia Law Review called "The Piracy Paradox: Innovation and Intellectual Property in Fashion Design." From that Ars article:

The paper's authors, Kal Raustiala of the University of California, and Chris Sprigman, start by observing that the fashion industry has what they term a "low-IP equilibrium," in which clothing designs enjoy almost no copy protection and designers frequently turn large profits by copying each others' work. In spite of the lack of IP protection for clothing designs—or rather, because of this lack, the authors argue—the fashion industry remains vibrant and profitable, exhibiting none of the negative effects on creativity that advocates of strong intellectual property (IP) rights would predict in the absence of government-enforced monopolies on creative "content."

[Chris Amirault]

For those unfamiliar with the phenomenon of brand ambassadors, click here for a recent NYT article:

Not long ago, bartending was, for some, one of the classic dead-end jobs, the choice of wannabe actors and the terminally unambitious. The only way up the drink-slinging ladder was to own a bar. But with the cocktail renaissance, today’s star mixologist is tomorrow’s brand representative, hawking various products for liquor conglomerates, or tomorrow’s cocktail consultant, setting up drink programs for new taverns and restaurants. ...

“Brand ambassador” may seem like a highfalutin term, but it captures nicely the porous and peripatetic nature of the liquor promoter’s job. These employees are hired not just to push, but also to personify a brand. They talk to distributors and members of the news media, conduct educational seminars and cocktail demonstrations, and host parties.

And, alleges the Atlantic article, steal other people's ideas to pawn as their own. Or, more accurately, as a brand's.

[TAPrice]

I was in that seminar as well. I'm not sure this is the clearest summary of what was said (and some basic facts are wrong--the two lawyers on the panel were both from the firm of Davis Wright Tremain).

From the start, the author seems unclear about the various categories of protections for intellectual property:

Pusser's, which distills a Navy-proof rum in the British Virgin Islands, trademarked the recipe for a Painkiller cocktail back in 1989.

Trademark might have been sought for the name of the drink (a name which was borrowed by the bar), but (and any lawyers reading please correct me) it would not be applicable to a recipe.

As we've learned from the folks at Goslings, who trademarked the recipe for a Dark 'n' Stormy in Bermuda in the hopes of enforcing it the world over, it's impossible to stop people from using a certain recipe once it's out there.At a certain point, it becomes public property. But when, exactly, does that point occur?

Haven't look at my notes, but I don't remember any discussion about a recipe becoming "public property" over time. In fact, the copyright codes explicitly states that recipes cannot be protected.

The publication of a recipe can be legally protected, but the "expression of an idea," as the lawyers in the seminar explained, cannot. It's the reason musicians can't be sued for covering another band's song in a live show.

This is circular and just factually wrong (again, please correct me if I'm mistaken). Ideas can never be protected, but expressions of ideas can be. The lawyers, I thought, did a good job in the seminar explaining this fundamental concept of intellectual property.

Not sure the musician example is relevant here. If I'm not mistaken, authors of a composition do received compensation for covers of their work, although it would be through the performance venue paying BMI or ASCAP for this right.

The owners of Painkiller have avoided the issue of intellectual property altogether by publishing their recipes on their website for all to see.

Not even sure what to make of the above quote. Just because you explicitly waive your right to protect your intellectual property (which I don't believe happened here), you have not avoided the issue. You have simply taken an unconventional approach (there are books, such as the manifestos of the French Situationists, that explicitly waive all copyright protection, for example).

When I have more time, I could dig up my notes from the seminar. Basic take away: the law doesn't offer bartenders much protections, although using a "secret ingredient" might be one way to maintain control of a drink.

Edited August 31, 2010 by TAPrice (log)

[Dakki]

I'm under the impression "intellectual property" in the form of copyright and patents is a legal monopoly over the use of information, to encourage innovation, not to guarantee residual income.

I don't see how enhanced IP protection for cocktails is going to encourage anything except me writing a script to publish and copyright every possible variation on the well drink.

[KD1191]

I am not a lawyer (though I have about 200 IP lawyers for bosses), but I think the most likely way to protect cocktail IP would be as trade secrets. However, trade secret protection requires "reasonable measures taken to protect the information"...which, means if it's accessible via Google, it doesn't qualify.

If you can keep your mouth shut, there are certain benefits. Trade secret protection, unlike patents and copyrights, does not expire. That said, as soon as the cat is out of the bag, competitors are completely within their rights to duplicate it, and if you are extremely successful you can expect the process to be reverse engineered.

[Shamanjoe]

It seems to me that offering copyright protection for food or drink recipes just wouldn't work. Take Coke as an example. From what I've been able to understand, they own IP rights to the brand, and while the formula is "secret", there's no formal IP protection for it. They maintain the secret by producing a syrup that is sold to licensed bottling companies all over the world to produce the end product.

This seems like the way it would have to be for a food or drink recipe as well. You may come up with a great new cocktail, but unless you keep the formula secret, other people can make it, sell it, call it their own, etc. The only IP protection you're guaranteed is branding.

I think cocktail formulas are different than say, drug formulations because they don't require years of research, and millions of dollars in safety testing, etc, to get to an end product. A great new cocktail can be as simple as taking a recipe and swapping an ingredient out.

For instance, I have my own very specific recipe for an Alabama Slammer that uses pineapple juice instead of orange juice. I came up with the variation on my own, but I doubt I'm the first person to think of it, and I wouldn't think of trying to slap protection on it. If I wanted IP rights to it, I'd keep it a secret and create a brand, instead of trying to copyright the recipe.

edited: to correct some minor spelling issues (due to typing too danged fast)

Edited August 31, 2010 by Shamanjoe (log)

[Shamanjoe]

I am not a lawyer (though I have about 200 IP lawyers for bosses), but I think the most likely way to protect cocktail IP would be as trade secrets. However, trade secret protection requires "reasonable measures taken to protect the information"...which, means if it's accessible via Google, it doesn't qualify.

If you can keep your mouth shut, there are certain benefits. Trade secret protection, unlike patents and copyrights, does not expire. That said, as soon as the cat is out of the bag, competitors are completely within their rights to duplicate it, and if you are extremely successful you can expect the process to be reverse engineered.

I think you encapsulated my idea and posted it while I was still working on getting my wording right

edited: to correct a couple typos

Edited August 31, 2010 by Shamanjoe (log)

[TAPrice]

It seems to me that offering copyright protection for food or drink recipes just wouldn't work. Take Coke as an example. From what I've been able to understand, they own IP rights to the brand, and while the formula is "secret", there's no formal IP protection for it. They maintain the secret by producing a syrup that is sold to licensed bottling companies all over the world to produce the end product.

This seems like the way it would have to be for a food or drink recipe as well. You may come up with a great new cocktail, but unless you keep the formula secret, other people can make it, sell it, call it their own, etc. The only IP protection you're guaranteed is branding

edited: to correct some minor spelling issues (due to typing too danged fast)

According to the lawyers (found my notes!), you can't control the recipe but a unique, secret ingredient could be protected as a trade secret. This is how Coke and most of other food manufactures control their recipes. By law, they have to list ingredients, but they do not have to specify flavors. The syrup for Coke is protected as a "trade secret," but not the formula for the drink (which is just a recipe).

In order to maintain your right to a trade secret, you must take concrete and consistent steps to protect it. For example, any employees who made the secret ingredients would have to sign a confidentiality agreement.

[Chris Hennes]

Right, that's the way the law works right now. But it sounds to me like Freeman is arguing for a change to that law that would prohibit these "freeloaders" from co-opting his recipes and claiming them as their own. Is that not what he's suggesting? I can hardly think of anything that would be worse for the cocktail world as a whole than laws that prevented you from making a drink invented by someone else without paying them.

Edited August 31, 2010 by Chris Hennes
grammar (log)

[Dakki]

Right, that's the way the law works right now. But it sounds to me like Freeman is arguing for a change to that law that would prohibit these "freeloaders" from co-opting his recipes and claiming them as their own. Is that not what he's suggesting? I can hardly think of anything that would be worse for the cocktail world as a whole than laws that prevented you from making a drink invented by someone else without paying them.

That's what I got (from the quoted bits) as well.

I don't see any possible benefit to extending copyright to cover recipes in general and the whole "chopless brand ambassador stealing my cocktail recipes off the internet and claiming them as their own" is, well, irrelevant.

If some spokesmodel with a pill problem wants to take my recipes, tweak them and "claim them as her own," well, that's pretty much what I did. Making a paloma with melon soda instead of grapefruit or whatever isn't exactly the height of innovation.

[TAPrice]

Right, that's the way the law works right now. But it sounds to me like Freeman is arguing for a change to that law that would prohibit these "freeloaders" from co-opting his recipes and claiming them as their own.

No. He never suggested any changes to the law, at least not publicly during the seminar. In fact, everyone on the panel, including Freeman, seem to accept that the U.S. legal system offers no relief in this situation. Well, he might have expressed displeasure with current laws, but he was realistic about the unlikelihood that the laws would ever be changed in a way that would be more favorable to bartenders (sorry, working off memory here--my notes weren't that detailed).

He was, it was clear, extremely frustrated at the media, at other bartenders, at the way the internet spreads information, etc.

The conclusion from the lawyers was that bartenders, like celebrities chefs, had to build their brand to cash in on their creative efforts. They needed to own their own bars, sell branded products, and make their personal style so recognizable that a fellow bartender wouldn't dare rip off their recipes. It was also suggested that the bartending industry could find a way to police itself.

Edit: He did say in the seminar that "someone should get sued," but it was never clear on what grounds.

Edited August 31, 2010 by TAPrice (log)

[slkinsey]

"Intellectual property" is a catch-all phrase used to describe the ownership rights associated with an idea rather than a physical thing. The three most widely known intellectual property protections are copyright (for the expression of an idea, such as prose writing, musical writing or recording, paintings and other works), patent (for inventions), trademark (for a distinctive indicator used to identify a product, business or service) and trade secrets (not-generally-known knowledge that confers an economic advantage over competitors).

Not all of these things have similar kinds of protections. In particular, trade secrets are not protected intellectual property in all jurisdictions, which is why they are usually protected by Nondisclosure Agreements.

How these might apply to cocktails depends on a number of factors. Although, really, considering that the internet is so busy eroding so many of the firmly established intellectual property protections that it seems a bit like wasted effort to try to move them into the world of cocktails. Rather, it's likely that the best solutions will be to try to figure out other ways to generate profit from this kind of work.

Copyright is an interesting if unlikely possibility. The nice thing about copyright is that you don't have to register it or pay for it. If you created a copyrightable work, you are the copyright owner. There is certainly copyright protection for musical compositions, and I suppose one could argue that a cocktail recipe is like a "score" for "performing the cocktail composition." Unfortunately there seems to be plenty of precedent to the effect that lists of ingredients together with instructions such as "shake," "stir," "muddle" and "strain" is not copyrightable. Again, given the speed at which enforcement of copyright is being eaten away in the digital age, it seems unlikely that this will be availing.

Trademark is definitely one that can and has been used. The "Dark 'n' Stormy" is a well-known example. Goslings owns that trademark and can control what can and cannot be called a Dark 'n' Stormy. It certainly might be possible for, say, Audrey Saunders to trademark "Earl Gray MarTEAni." And this would mean that she could control the use of that mark. This could stop some minority of people from profiting from or claiming credit for her creation. However, there are a number of problems with this. First is that it costs to register a trademark, it costs to maintain the trademark registration, and it costs money when you have to litigate to enforce the trademark, which you have to do if you want to keep it in force. So it could be very expensive indeed for a bartender to trademark every cocktail they create, or even just a small repertoire of their best ones. Second, an individual trademark only covers a very, very specific mark. There is nothing stopping a bar from making and selling a "Dark and Stormy" or a "Dark & Stormy" any way they want. This makes trademark also not likely to be availing.

Then there is patent. This is normally used for physical inventions, but in certain cases can be used for inventive ways of doing things. This is sometimes used in chemistry and, for excample, my mother is an inventor of patents No. 6,375,980 and 6,106,859 for "Stabilization of lipid:DNA formulations during nebulization." This might have some application for the sorts of things that Eben Freeman does, but it's unlikely that one could get a patent for "System and method for making an Earl Gray MarTEAni." And even if it were possible, the application process is long, burdensome and expensive, and it has continuing costs throughout the term of the patent (20 years from the filing date in the U.S.) if you want to keep it in force. Again, probably not availing in most cases.

The trade secret model is perhaps one that could work in certain limited contexts. You could have all the staff at the bar sign an NDA, and/or you could go the old-school tiki route, and strip all the labels off your bottles, concoct mysterious ingredients offsite, and give your bartenders recipes referring to "once ounce of bottle no. 5" and so on. This actually worked remarkably well in the tiki world for a long time, to such an extent that the recipes for some iconic drinks are only now being uncovered. That doesn't mean someone else didn't try to reverse engineer the Zombie and call that drink a Zombie, of course. It only made it difficult to reproduce the original Zombie.

The people I've seen who seem to have got this right in the cocktail world are those who share their most famous recipes rather freely with the public. While any bar can make and serve an Earl Gray MarTEAni, because the recipe is widely known, it is also widely known that Audrey Saunders invented this drink and so what acclaim and benefit there is to gain from the popularity of this drink accrues to her. This is something with which the ubiquity of the internet is uniquely positioned to help. The Painkiller Tiki Bar guys are very smart to put their recipes out there because, if their "Cradle of Life" becomes a popular and imitated drink, at least it will enhance their reputations and hopefully drive business to their establishments -- and that's better than some other schmo taking credit for the drink, or the originator of the drink being lost in the sands of time like the creator of the Cosmopolitan (the flip side of all this is that if people know you are the inventor, you might just find a bunch of cocktailians outside your castle gate with torches and pitchforks -- so maybe it's best that the Cosmo's inventor is unknown). Of course, even publicizing your original recipes widely on the internet won't prevent every problem, as evidenced by the incorrectly formulated and incorrectly named "Earl Gray Mar-tea-ni" as found in Difford's Guide and the Big Bartender's Book.

[TAPrice]

Sam: excellent summary. Hits most of the points made by the lawyers at the Tales seminar. A couple of quick notes.

Unfortunately there seems to be plenty of precedent to the effect that lists of ingredients together with instructions such as "shake," "stir," "muddle" and "strain" is not copyrightable. Again, given the speed at which enforcement of copyright is being eaten away in the digital age, it seems unlikely that this will be availing.

This is not a matter of precedent. The codes on copyright explicitly exclude recipes from protection. The lawyers categorically said that copyright was a dead end for protecting drinks.

Then there is patent. This is normally used for physical inventions, but in certain cases can be used for inventive ways of doing things.

True, but you have to show that the method is "non-obvious."

The trade secret model is perhaps one that could work in certain limited contexts. You could have all the staff at the bar sign an NDA, and/or you could go the old-school tiki route, and strip all the labels off your bottles, concoct mysterious ingredients offsite, and give your bartenders recipes referring to "once ounce of bottle no. 5" and so on.

Although it might be a good idea to have all employees sign a NDA, it would be not be necessary. Only the employees who actually mixed the secret ingredients would need to sign an agreement. In fact, limiting the number of people who knew and mixed the secret ingredient would be further proof that the secret was being protected. If the secret is not carefully guarded, then the owner loses the legal protections.

Edited August 31, 2010 by TAPrice (log)

[Dakki]

Minor quibble: I think "trademark" protects the owner from cases where there is a likelihood of confusion. So no Dark and Stormies or Dark & Stormies, at least if they're similar enough to the original product to cause confusion in the mind of a patron.

EDIT: Written in reply to slkinsey's post.

Edited August 31, 2010 by Dakki (log)

[TAPrice]

Minor quibble: I think "trademark" protects the owner from cases where there is a likelihood of confusion. So no Dark and Stormies or Dark & Stormies, at least if they're similar enough to the original product to cause confusion in the mind of a patron.

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

[vice]

or you could go the old-school tiki route, and strip all the labels off your bottles, concoct mysterious ingredients offsite, and give your bartenders recipes referring to "once ounce of bottle no. 5" and so on.

I wonder how this approach would square with the increasingly stringent regulation by many liquor control boards of things like house-made infusions and bitters.

[Fat Guy]

The reason copyright came to the fore in the discussion at large of culinary copying was the rise of molecular gastronomy/mixology, culinary modernism, avant-garde cuisine, or whatever you want to call it. 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.

[TAPrice]

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.

Even if one accepts that argument (I don't), has a court ever accepted this new reasoning? Has anyone even attempted to challenge the exemption to copyright protection using this line of reasoning?

[Dakki]

How do you distinguish one from the other?

The US Patent Office notoriously has a lot of trouble distinguishing obvious from non-obvious claims (not to mention, claims with plenty of prior art) in straightforward tech; I don't even want to think about what would happen if the copyright office had to get into it on behalf of a bunch of cooks and/or bartenders.

[Fat Guy]

There are a grand total of about two cases on recipe copyright that generally get cited in law review articles on this subject, both very old and not particularly relevant (they pertain to written recipes in books, and focus on the issue of collections of recipes as unique literary expression). The most erudite lawyers I've heard speak on this issue, however (the partners at Cowan, Leibowitz & Latman, speaking at the Harvard Club symposium in 2008), have been of the opinion that in a clear case of copying complex molecular-gastronomy-type dishes a plaintiff with a good budget and legal team would have some very powerful arguments. It's not so much a question of copyright protection for the list of ingredients -- that is already off the table, pretty much, on account of the Library of Congress's language on the issue. It's about the dish looked at as a creative work -- part art, part sculpture, maybe even part choreography -- and that dish being copied.

There have also been several culinary processes patented.

[Dakki]

Such as this.

[Chris Hennes]

It's my understanding that the '596 patent (SEALED CRUSTLESS SANDWICH) has been re-examined and the patent revoked.

[Dakki]

The patent was issued and my argument on the USPTO not knowing their (body part) from (other body part) stands.

[Fat Guy]

I guess I'm not sure what the argument is or why it matters.

Back on the issue of copyright and cocktails, I think the discussion winds up being no different than the general culinary discussion. It comes down to whether the culinary arts have changed, and whether that change requires re-examination of the copyright law as applied to food and drink. I think it does, most people think it doesn't.

There are some people out there who don't believe in copyright for much of anything. We can't expect them to be convinced on the issue of culinary copyright. But for those who believe that music, art, et al., should be protected by copyright, I think it is becoming increasingly difficult to argue that culinary creations should not.

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.

You can work your way into the whole article by starting here and following the download link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=923712