Intellectual Property, Copyright & Cocktails

[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.

[Dakki]

Leaving aside the questions of whether or not copyright protection for recipes would actually encourage creativity and what mechanisms would have to be in place to ensure that I could post my bean soup recipe without getting sued by General Mills or whatever, I'd like to point out that maybe there just isn't that big a market for really creative cuisine.

[slkinsey]

We still have to think about what incentive would supposedly be created by extending copyright protection to mixological works. The point of extending it to literary and musical works is that it provides an economic basis upon which artists to create works in these mediums can profit from their creativity, an economic basis upon which to profit from creativity should lead to increased quality and volume of work in the protected mediums, and increased quality and volume of work in the protected mediums is believed to be beneficial to society at large. Benefitting society is the real rationale behind these protections, not necessarily benefitting the creators. The creators are benefitted by the protections only because it is believed that providing the protections ultimately benefits society. The rationale is that the protections are needed because a lack of such protections makes it difficult-to-untenable for creators to profit from their creativity. As file-sharing and such things make certain copyright laws effectively unenforceable, we have seen that the economic basis upon which is was possible to make a living in these mediums has eroded (whether or not this has had a negative effect on the volume and/or quality of works in these mediums is a matter of some debate). Its unclear how copyright-like protections would provide an increased economic basis for mixologists to profit from their culinary creativity. You seem to be arguing that the disincentive of potential punishment for copyright infringement would lead to increased creativity, but punishment is only the penalty that is in place in order to keep the system working so that creators can potentially receive the financial reward for their creativity. The first part of the argument has to be how and on what basis creators of cocktails would benefit from these protections.

What is your hypothetical scenario? For example, Phil Ward came up with the "Oaxaca Old-Fashioned" consisting of reposado tequila, mezcal, agave syrup and bitters. This cocktail has grown to have widespread popularity. How would Phil potentially benefit from owning copyright-like protections for this drink? How would these protections prevent any bar from selling the same cocktail with the same name? How would these protections prevent anyone from walking into a non-Phil Ward bar and ordering an Oaxaca Old-Fashioned, even teaching the recipe to the bartender if he doesn't know it? On what basis could it be determined what kind of royalty is owed to Phil for a bar serving this drink? What parts of that cocktail could possibly be protected? Is there any way to meaningfully assign the sole intellectual property ownership of "a cocktail called the 'Oaxaca Old-Fashioned' consisting of reposado tequila, mezcal, agave syrup and bitters" to Phil, or wouldn't the potential copyright have to be significantly more narrow? If it would have to be significantly more narrow, wouldn't it effectively be worthless, and wouldn't that completely destroy any presumed economic basis for profiting through creativity presumably encouraged by the protection? How, then, would this benefit society?

You've already made interesting arguments that are convincing to one extent or another that certain culinary works "deserve" to be considered works of creativity and protected with some kind of copyright-like intellectual property. But it's very unclear to me how this would work in any kind of real world basis to provide the benefits to society that are the justification for placing these kinds of restrictions on the public's free use of the intellectual property. Maybe there's something I'm not thinking of, though. So I'd be interested to hear about a real-world cocktail, how and what kinds of intellectual property protections would apply, and how these protections would benefit the creators in a way that stimulates increases in the quality, inventiveness and/or volume of cocktail creations above what we see today.

[Chris Amirault]

What is your hypothetical scenario? For example, Phil Ward came up with the "Oaxaca Old-Fashioned" consisting of reposado tequila, mezcal, agave syrup and bitters. This cocktail has grown to have widespread popularity. How would Phil potentially benefit from owning copyright-like protections for this drink? How would these protections prevent any bar from selling the same cocktail with the same name? How would these protections prevent anyone from walking into a non-Phil Ward bar and ordering an Oaxaca Old-Fashioned, even teaching the recipe to the bartender if he doesn't know it? On what basis could it be determined what kind of royalty is owed to Phil for a bar serving this drink? What parts of that cocktail could possibly be protected? Is there any way to meaningfully assign the sole intellectual property ownership of "a cocktail called the 'Oaxaca Old-Fashioned' consisting of reposado tequila, mezcal, agave syrup and bitters" to Phil, or wouldn't the potential copyright have to be significantly more narrow? If it would have to be significantly more narrow, wouldn't it effectively be worthless, and wouldn't that completely destroy any presumed economic basis for profiting through creativity presumably encouraged by the protection? How, then, would this benefit society?

I'm also wondering about a related scenario (which happens to be more or less true). A patron walks into a bar that focuses on classic cocktails and starts up a conversation about the word "cocktail" itself. Over the course of the conversation -- originally cocktails were spirit, water, bitters, sugar; those sorts of drinks are now called "Old Fashioneds"; you can use any spirit base -- the patrons eyes wander to the Del Maguey mezcal. "What about that stuff?" The bartender then makes an Old Fashioned with mezcal, cuts it with a bit of añejo tequila, some demerara syrup that's on the back bar, and some Angostura. Another bartender comes over as she's straining the drink and says, "Hey, that's Phil Ward's Oaxaca Old Fashioned!"

Is it?

[Fat Guy]

My initial reaction is that if a cocktail consists purely of X parts A, Y parts B, and Z parts C, shaken or stirred, it's harder to argue that it should be protected by copyright than it is to argue that the melon ball "cocktail" should. The melon ball is much more like the kinds of original studio arts creations that are normally protected by copyright. Then again, there are fewer notes on a piano than there are cocktail ingredients, and even simple melodies are protected by the copyright laws.

I think, as in cuisine, if copyright is extended to cover mixology there need to be exclusions. All prior art of course has to be excluded, so nobody tries to claim copyrights over the martini. As for other exclusions, I'm not sure. The melon ball seems like a clear candidate for protection. Some of the work that has been done with layered cocktails seems protectable. Basic ingredients combined in a ratio and shaken or stirred, that may get closer to the "mere list of ingredients" theory that has prevented recipe copyright from happening.

Incidentally, since this all started with Freeman, I thought folks might be interested to learn that I just got a press release saying he has taken a new job. Here's the first paragraph:

MIXOLOGIST EBEN FREEMAN JOINS THE ALTAMAREA GROUP

TO HEAD BAR OPERATIONS AND INNOVATION

NEW YORK CITY – September 7, 2010 –The Altamarea Group is pleased to announce the addition of Eben Freeman to their team. Freeman joins the Altamarea Group as Director of Bar Operations and Innovation. Renowned for his innovative approach and chef-driven style, Freeman will oversee the bar program at each of the Altamarea Group’s existing restaurants, with an initial focus on the soon-to-open New York City projects Osteria Morini (September 2010) and Ai Fiori in The Setai Fifth Avenue (late fall 2010). He will also oversee, train and add capability to the group’s bartenders and beverage staff across various expansion initiatives.

[Chris Amirault]

Some of the work that has been done with layered cocktails seems protectable.

Not sure I follow -- do you have examples? Pousse-cafés are about a century old, so unless you're referring to something else, it's going to fall into the category of prior art.

I bring this up not to be a stickler but to suggest that nearly all of the creative cocktail contributions I can think of are either riffs on a classic principle or innovations driven by new ingredients like hydrocolloids or technology like anti-griddles -- and even those are about state manipulation more than anything else. At

Someone recognized as a mixological innovator once told me about a "sous vide cocktail." Turns out he infused fruit with booze. I can think of a few thousand frat boys who might claim prior art.

[Fat Guy]

It's not that one could claim copyrights to the idea of a layered cocktail. That's more like the sort of thing that gets patented. It's not a fixed expression. But if someone comes up with a unique layered cocktail, that's more like the kind of thing that's already protected by the copyright laws. In other words, if you made it out of plaster and painted it, you'd be able to claim copyright protection, so why not if you made it out of booze? I figure there have already been so many combinations of various colors already done that it's not like someone could claim to have created the red-white-and-blue layered cocktail, but if someone does something new and unique with phosphorescence or vertical layers or whatever, that seems protectable.

A unique glass design could also be a candidate for copyright protection, with no change needed in current law.

[Chris Hennes]

I still can't see how it would work, Steven. As Sam pointed out, with copyright you only have to make relatively minor changes to the work to be off the hook, legally speaking. No matter how complex the cocktail, it still has relatively few ingredients and/or techniques: it seems probable that a minor tweak to any one of those things will result in a "new work" for the purposes of copyright. If someone comes up with a unique-looking cocktail, via layering, or fancy glasses, or whatever, do you actually think that another bar is going to pay to be allowed to reproduce that exact drink, when they can change one tiny detail and owe no one anything?

We see a lack of creativity in chefs and mixologists because there is no demand for creativity, not because there are no rewards for it.

[Fat Guy]

We have no absolute way of knowing whether demand or lack of creativity or lack of copyright protection is the chicken, egg, etc.

If someone's goal is to skirt copyright by making minor changes then that's difficult to avoid in several fields. But in a world where cocktails enjoy IP protection if a bar wants to be able to say it's serving the original it's going to need to pay a royalty. The royalty doesn't have to be a villion dollars. It can be a few cents -- little enough to make the bother of a workaround not worth it, but enough to encourage creativity of the kind that earns royalties.

[slkinsey]

A unique glass design could also be a candidate for copyright protection, with no change needed in current law.

Right. I guess this is where I am going. All the things you mention could conceivably be protected under existing copyright law as sculpture or something like that (or under a technical process patent). Unfortunately, it just doesn't take much to avoid copyright infringement. Change to a somewhat different glass and use a different brand of gin and you're no longer infringing. The reality is that the people consuming the cocktails don't care all that much whether the glass is a little different or a different brand of gin is used. Someone can easily take Eben's Melon Ball Cocktail, make it with cantaloupe instead of honeydew and, an oval saucer with a crackle glaze instead of a white ramekin, use gin jello instead of vodka jello and call it a "Melon Ball Cocktail." No potential infringement there. But someone is clearly benefiting from selling a "copy" of Eben's creative work. Meanwhile, Eben's hypothetical copyright ownership of the Melon Ball Cocktail doesn't do him any good at all. If Eben can't realistically benefit from the Melon Ball Cocktail, it's hard to imagine how extending copyright-like protections into this arena would promote the creation of more and/or better "mixological works."

If someone's goal is to skirt copyright by making minor changes then that's difficult to avoid in several fields. But in a world where cocktails enjoy IP protection if a bar wants to be able to say it's serving the original it's going to need to pay a royalty.

This is just a complete misunderstanding of how bars work. Or even restaurants for that matter. Since when did any non-chain restaurant care the slightest bit about saying that they are serving "the original"?

Edited September 7, 2010 by slkinsey (log)

[haresfur]

My initial reaction is that if a cocktail consists purely of X parts A, Y parts B, and Z parts C, shaken or stirred, it's harder to argue that it should be protected by copyright than it is to argue that the melon ball "cocktail" should. The melon ball is much more like the kinds of original studio arts creations that are normally protected by copyright. Then again, there are fewer notes on a piano than there are cocktail ingredients, and even simple melodies are protected by the copyright laws.I think, as in cuisine, if copyright is extended to cover mixology there need to be exclusions. All prior art of course has to be excluded, so nobody tries to claim copyrights over the martini. As for other exclusions, I'm not sure. The melon ball seems like a clear candidate for protection. Some of the work that has been done with layered cocktails seems protectable. Basic ingredients combined in a ratio and shaken or stirred, that may get closer to the "mere list of ingredients" theory that has prevented recipe copyright from happening.Incidentally, since this all started with Freeman, I thought folks might be interested to learn that I just got a press release saying he has taken a new job. Here's the first paragraph:

MIXOLOGIST EBEN FREEMAN JOINS THE ALTAMAREA GROUPTO HEAD BAR OPERATIONS AND INNOVATIONNEW YORK CITY – September 7, 2010 –The Altamarea Group is pleased to announce the addition of Eben Freeman to their team. Freeman joins the Altamarea Group as Director of Bar Operations and Innovation. Renowned for his innovative approach and chef-driven style, Freeman will oversee the bar program at each of the Altamarea Group’s existing restaurants, with an initial focus on the soon-to-open New York City projects Osteria Morini (September 2010) and Ai Fiori in The Setai Fifth Avenue (late fall 2010). He will also oversee, train and add capability to the group’s bartenders and beverage staff across various expansion initiatives.

I'm still trying to get my brain around your proposal. Law doesn't work very well with vague boundaries. The recipe of ingredients and instructions for putting them together isn't copyright. The technique wouldn't be copyright - like you wouldn't copyright finger-picking a guitar even if it had never been done before. It seems to me you are proposing copyright protection for "presentation". So the ingredients mixed don't matter but the way the "dish" looks when put in front of the customer does. Is that correct?

I still have a lot of problems with that. Would a copyright on the "melon ball" cover all kinds of melon? How about infusing melon with the same spirit and making a sculpture of stacked balls? Stacked cubes?

I can't overlook some issues with the way copyright laws have been written and implemented for other areas. The successful litigation over trivial music snippets has been mentioned previously. It is all very well to say a simple cocktail shouldn't be covered but fancy ones should but that isn't the way things have worked out in music. In addition IMO the recent changes to copyright law extending the coverage for decades is absurd. Why should works of art, books, etc. be worthy of longer protection than patents? Then when you consider that people can republish a work with some minor additions and gain essentially exclusive rights, (I'm not an expert, but it looks that way) creative ideas are locked away in perpetuity, stifling creation. Try to get Jerry Thomas' bartenders guide from Google Books. Didn't Google cut a deal with the publishing companies so they wouldn't be sued for something like that where someone has decided to republish (reproduce) it? It's not a case of being against any protection of IP but I am against extending badly written and implemented laws any further.

A unique glass design could also be a candidate for copyright protection, with no change needed in current law.

Perhaps, but practically unenforceable. I know of potters who have had designs taken and knocked off by overseas factories.

Maybe someone should ask Freeman if he has given up IP rights to the things he creates in his new job. Any bets?