Intellectual Property, Copyright & Cocktails

[KD1191]

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

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."

Except, that...

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.

Who knows what might come out of that process...when does it start becoming easier to come up with something new instead of just tweaking something successful enough to avoid getting sued? Or, better yet, what if that new tweaked drink is even better and more successful than the original? Copyright inspired you to create it...after all.

Edited September 7, 2010 by KD1191 (log)

[IndyRob]

It seems that there are at least four different kinds of IP law being addressed here in a willy nilly fashion. I am not a lawyer but still feel compelled to respond to the best of my ability.

Copyright covers the expression of an idea. You can't copy my reporting of a news event, but you can report on the same event independently. I can't sell pictures of the Mona Lisa, but Andy Warhol could do his own version (well, except for that being dead thing). But a list of ingredients is an instructional and not an expressive thing. Most food blog recipes probably would qualify as expressions of an idea if they were copied. But if just the ideas were used, there would be no violation.

But if you're trying to protect your turf, why have you published the method? And if you haven't, copyright does not come into play.

Patent laws protect the idea itself, but it has to a be a non-obvious idea. Sous vide cooking would've probably have been a good candidate for a patent. Your cocktail making method might be as well. But whether your idea your is worthy of patent protection is up to the courts.

Trademarks protects the brand name. It has nothing to do with the product, but the words and marks related to popularizing it and protecting an identity.

Trade secrets are protected and that means keeping your mouth shut. Coca Cola has been very successful with this for over 100 years. If your idea is good, marketable, and non obvious, this is clearly your best option.

[KD1191]

One form of IP that I haven't seen discussed here is Trade Dress. Related by not entirely synonymous with Trademarks, it refers to the "characteristics of the visual appearance of a product or its packaging". I wonder if trade dress issues could arise within some segments of the cocktail community. If "a method of displaying wine bottles in a wine shop" can be protected under trade dress, how far off are various implementations of the speakeasy or tiki bar concepts.

[Fat Guy]

a list of ingredients is an instructional and not an expressive thing.

As I mentioned above, I think Buccafusco's law-review piece does a great job of dismantling this received wisdom. To repeat, his argument is:

....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....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.

[IndyRob]

Here's the problem....

.To determine whether and how recipes are expressive, I interviewed some of America's best chefs, each of whom claimed to use recipes to express various ideas and emotions.

I asked them and they said it was expressive. That proves it.

Yeah, I don't think so.

[Fat Guy]

How else would you suggest establishing or refuting the claim that recipes can be expressive?

[KD1191]

a list of ingredients is an instructional and not an expressive thing.

As I mentioned above, I think Buccafusco's law-review piece does a great job of dismantling this received wisdom. To repeat, his argument is:

....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....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.

They use recipes to express ideas and emotions? They express ideas by writing down a list of ingredients and procedures? I can see saying that about a finished product, but the recipe is strictly utilitarian.

[KD1191]

How else would you suggest establishing or refuting the claim that recipes can be expressive?

I'd suggest looking at how recipes are created gives you a key. How many chefs sit down a write a new recipe for a new dish they've never made or tasted? I would argue that if the recipe itself were expressive, that should theoretically be how it's always done.

[IndyRob]

How else would you suggest establishing or refuting the claim that recipes can be expressive?

I've already been on record as to that. And very specifically. It's available to you upthread.

[Fat Guy]

KD1191, I think if you have a look at professor Buccafusco's piece on this subject you'll be impressed with how thoroughly he beats the heck out of the argument that recipes are not expressive. He goes on for pages and pages, but I can get into a couple of the points he makes that pertain to what you've said. Take, for example, music. Don't many composers, when composing, begin by tapping out music on a piano and then they write it down as music notation? Don't authors think about the story and the words before writing them down? As Buccafusco points out: "In truth, the recipe, the drawing, and themusical notation are simply means for fixing a work (the dish, the dance, or the symphony) in a tangible medium of expression. In the words of the Copyright Act, the recipe, the drawing and the musical notation allow otherwise ephemeral media to be 'perceived, reproduced, or otherwise communicated.'" He also notes: "It is no more true that the ingredients and directions for making 'Oysters and Pearls' is a statement of fact than it is to say that the arrangement of words in Joyce’s Ulysses is a statement of fact." I think he's got this aspect of the argument pretty well nailed.

[haresfur]

A design for a scientific experiment is creative and expressive but you can't copyright it. A mathematical proof is creative and expressive but you can't copyright it. A process for diagnosing a disease is creative and expressive but you can't copyright it. A philosophic argument might be creative and expressive but you can't copyright it. A design for say a pair of skis is creative and expressive but you can't copyright it (although you can copyright the graphic you put on top).

A computer program generally IMO is not expressive but you can copyright it. Utilitarian photographs documenting an object are not expressive but can be copyright. A book on Birds of the world is copyright but the list that goes into it and the taxonomic system are not.

I'd say there isn't a single test of whether something is "worthy" of copyright protection. It is fundamentally a political decision and I tend to agree with Sam that "benefit to society" is a reasonable test, although subject to considerable abuse.

[Fat Guy]

I'm not sure the things you say are or are not expressive are self evidently as you say, but I agree that it's ultimately a political decision whether to extend the copyright laws. My sense is that the entire culture of food and drink is evolving so much that it has become and will continue to become more like the types of things that are protected by the copyright laws. Right now we are still on our first generation of modernist chefs and diners. We're still entrenched in attitudes that say cooking is a blue-collar pursuit, where a chef's only value is his or her labor. As that continues to change, as more people choose culinary school over law school and more chefs become part of the global community of conceptual artists (as Adria already is), I think it will become clear that we need culinary copyrights for the same reasons we need them in the other studio and performing arts. Whether or not that protection extends to cocktails as well doesn't seem like a real question. The big issues will have to be the scope of what elements of cocktails can and can't be protected, and what the mechanism of licensing will be (an open playing field of enforcement, or an organized effort like ASCAP).

I'm not entirely sure we're even talking about extending the law. It may just be a question of recognizing food and drink as the art that they are. That could be done at the level of interpretation and precedent, although a statutory solution might be quicker and cleaner.

[evo-lution]

Alright everyone.

Just thought I'd chime in to say that having spoken with Eben (albeit through Facebook) the article (as I susupected may be the case) doesn't really do what he said justice and that his point has more substance when he explains in depth where he's coming from...

I quote;

"I just think bartenders deserve more of the profit and credit for the money being made by multinational beverage corporations during this golden age."

I don't think there's anything wrong with that.

Cheers,

Adam

[Dakki]

I think almost everyone can agree with that sentiment but the thread has become a discussion of IP in the food industry in general, not just the article linked in the OP.

[evo-lution]

I think almost everyone can agree with that sentiment but the thread has become a discussion of IP in the food industry in general, not just the article linked in the OP.

I understand the path the topic has taken but as it was interpretations of Eben's comments which sparked the debate it's only right that he has the opportunity to explain what it was he meant, hence my post.

The reason I quoted that line from Eben is because that is the issue at the heart of the matter and I believe that trademarking and/or copyrighting is not necessarily the road to go down to ensure bartenders receive the profit/credit they deserve...

[bostonapothecary]

"I just think bartenders deserve more of the profit and credit for the money being made by multinational beverage corporations during this golden age." -Eben Freeman

yikes, i think eben is looking for some sort of protection from the "establishment". everyone is only in the hypothetical stage, but any poorly conceived legal way to protect yourself is likely to back fire.

i think one of the solutions to not lining the pockets of multinational beverage corporations is to not use their products. there are vast alternative options out there besides micro distillery "clones", but when you get off the beaten path it requires a certain culinary theory that isn't well developed.

i've been using all these dirt cheap, excellent quality, portuguese products for quite a while now and have been thrilled with the results. many bars know of them but do not touch them. i don't think they have the skills to evaluate them for "quality" (whatever that word means) or the theory to put them to use, therefore they can't reap the subversive benefits (low cost gets people to socialize more often, exotic nature yields an expansion of harmony)

culinary works are definitely expressionistic (they have an emotional content: the spectrum of non universal reactions from repulsion to elation). the problem with the recipes we use right now is that they are dynamic and not static. the dynamic nature means they cannot accurately codify the expression intended. when we ask for a recipe we intend to get a static version because we want to recreate the same expression, but it doesn't work out that way with the current state of recipe writing.

the reason our recipes don't hit their mark is because they skip over so many points that are needed to fully codify the expression. the expression and emotional content of a culinary work comes from an intense synesthetic experience (cooperation of the senses) which has vast points of tension. we have done very little to identify these points and map the relationships.

we also make our recipes out of large dynamic units (that damn terroir thing strikes again!) which makes a culinary work very unlike a static industrial process or fairly static musical notation.

cocktails are interesting culinary art works because relative to a chicken dish, they have fairly simplified texture, temperature, and are built out of units that are closer than most things to static. they are also easy to turn into metrics and study which makes them the perfect tool to illustrate culinary theory.

the rise of expressionism in art (painting, music, dance, etc. think wassily kandinsky, same era) paralleled changes in bartending style. bartenders started packing more emotional content into their drinks and relied on more fixed static recipes. in the jerry thomas days, all recipes were expected to stretch up and down to an imbibers taste, but in expressionistic bartending you don't mess with the proportions of the savoy's "lucien gaudin". take it or leave it which means that non drink inventors still have to learn to curate.

so feran adria isn't that radical a conceptual artist. adria basically brings more texture and more tricks of expectation and anticipation to add more options of expression. being so calculated in tricks of expectation and anticipation isn't even new. it is widely practiced in amaro making. amaros are not about being bitter, but rather about the manipulation of bitter things. "special effects" (different extraction methods) are used to create a expectation differential of the aroma out the glass and the product under full sensory cooperation.

i don't think food & drink will become more of an art until people outline more of the mechanics of flavor. the cocktail is the best place to begin.

[IndyRob]

"I just think bartenders deserve more of the profit and credit for the money being made by multinational beverage corporations during this golden age." -Eben Freeman

yikes, i think eben is looking for some sort of protection from the "establishment". everyone is only in the hypothetical stage, but any poorly conceived legal way to protect yourself is likely to back fire.

Good point. Consider this story. A politician posts two newspaper articles on her campaign website without permission. She gets sued. Not by the newspaper, but by a company that looks for infringements and then buys the rights to the content that was infringed.

It makes sense for the newspaper since they aren't in the business of suing people, and these people are.

Bartenders don't have the infrastructure or expertise to manage an IP portfolio. All of those licensing and IP protection issues are better handled by, well, big corporations.

Extrapolate that to its logical conclusion and bartending could get quite scary (or quite boring).

[thirtyoneknots]

To continue upon the previous reasoning, which has sort of been my thought on this all along, is any expansion of IP law passed in the US today really likely to protect individual bartenders? Or Big Liquor? Call me a cynic if you must, but first cf extension of copyright law over the last several decades, which I'm given to understand (though please correct me if I'm wrong) has been done largely at the behest of Disney. What we're working with today is hardly pretty, or fair, but any attempt to rectify it is likely to be a disaster.

[haresfur]

Alright everyone.

Just thought I'd chime in to say that having spoken with Eben (albeit through Facebook) the article (as I susupected may be the case) doesn't really do what he said justice and that his point has more substance when he explains in depth where he's coming from...

I quote;

"I just think bartenders deserve more of the profit and credit for the money being made by multinational beverage corporations during this golden age."

I don't think there's anything wrong with that.

Cheers,

Adam

I agree, but in my neighbourhood the multinational beverage corporations are making most of their profit off pre-mix cans of Jack & Coke or the like. Talk about your culinary apocalypse...

[evo-lution]

"I just think bartenders deserve more of the profit and credit for the money being made by multinational beverage corporations during this golden age." -Eben Freeman

yikes, i think eben is looking for some sort of protection from the "establishment". everyone is only in the hypothetical stage, but any poorly conceived legal way to protect yourself is likely to back fire.

Undoubtedly, but you're still connecting the quote of Eben's that I posted with this issue of copyrighting/trademarking which appears to have been misinterpreted and misunderstood. I mentioned to Eben that it may be in his best interests to release an article detailing his point of view in more depth which I think he seems willing to do.

[Chris Amirault]

Last fall I posted the following:

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

2 1/2 (not a typo) oz Talisker

3/4 oz Fernet Branca

3/4 oz Cinzano rosso

1/2 oz Mathilde Orange XO

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

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

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

The bartender in question to whom the many Scotland the Brave fans owe a debt is named Ted Kilpatrick.

[12BottleBar]

I agree that mere historical credit is the most anyone can hope for, and quite frankly, we should all be so lucky to be chronicled a century hence. A question to daisy17: Doesn't any cocktail worth copyrighting/trademarking also run the risk of being declared generic by the courts, should it succeed to be so popular as to wind up on Cheesecake Factory menus (so to speak)?

[mkayahara]

Another "cocktail copyright" case: Looks like Pusser's rum brought a case against the New York City bar formerly known as Painkiller - and henceforth known as PKNY - because they hold rights to the term "Painkiller" as an "alcoholic fruit drink with fruit juices and cream of coconut and coconut juice". Interesting case that makes me wish I knew more about IP law. I take it the bar couldn't get around it simply by spelling it as two words: "Pain Killer"? How do you even trademark an everyday word anyway?

Anyway, there's obviously some anger against Pusser's, expressed in the only way that people seem to know how anymore: a Facebook group for "Bartenders against pussers [sic] rum".

[ScoopKW]

On the flip side, however, if you owned the rights to "Painkiller," would you want anyone opening a bar of the same name?

But I agree -- it's ridiculous that such a common name can be trademarked.

Even worse in my opinion -- Anchor Steam. It's the only beer that can be called "Steam." Doesn't matter there were once hundreds of breweries making Steam beer. That beer style has flatlined -- nothing at all interesting has happened with steam beer in the last 40 years.

It should be opened up as a regional brewing style -- Steam beer comes from the Bay Area, just like Bourbon comes from Kentucky. But giving one company all rights to a style would be like saying that only Gallo can make a wine and call it "Cabernet Sauvingnon."

[daisy17]

Another "cocktail copyright" case: Looks like Pusser's rum brought a case against the New York City bar formerly known as Painkiller - and henceforth known as PKNY - because they hold rights to the term "Painkiller" as an "alcoholic fruit drink with fruit juices and cream of coconut and coconut juice". Interesting case that makes me wish I knew more about IP law. I take it the bar couldn't get around it simply by spelling it as two words: "Pain Killer"? How do you even trademark an everyday word anyway?

Anyway, there's obviously some anger against Pusser's, expressed in the only way that people seem to know how anymore: a Facebook group for "Bartenders against pussers [sic] rum".

A trademark or service mark is a word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods or services of one party from those of others. Marks are always registered in connection with a class of goods or services - here, for example, in class 33 (wine and spirits). Pusser's also has a pending application for Restaurant and bar services in class 43. The goods and services the mark is used (and registered) in connection with are key. If they were trying to register the mark PAINKILLER in connection with pills that helped relieve physical discomfort, they'd have a problem (this mark would be generic). Same thing if I tried to register DAISY'S FISH SHACK as a mark for my taco stand. But the mark APPLE becomes very strong when it's used in connection with something completely un-apple-y, like computers and technology. So the fact that it's an everyday word is irrelevant if the mark is unrelated to and doesn't describe the goods or services being offered.

Changing the spelling or syntax doesn't do anything here. Courts evaluate the likelihood that one mark will be confused with another, and in doing so they look at the totality of things (would a consumer think that they were the same, or related to each other?) - like the classes of goods/services, and phonetic/visual similarities.

fun when my livelihood and interests intersect