Intellectual Property, Copyright & Cocktails

[Fat Guy]

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

[cdh]

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

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

Edited September 1, 2010 by cdh (log)

[Chris Hennes]

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

[HungryC]

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

[Dakki]

LOL chilling effects. That reminds me of this:

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

[Fat Guy]

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

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

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

[evo-lution]

I think Freeman deserves a cut of that.

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

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

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

The headline alone makes the Atlantic article laughable.

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

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

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

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

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

Edited September 2, 2010 by evo-lution (log)

[haresfur]

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

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

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

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

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

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

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

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

[haresfur]

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

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

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

[cdh]

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

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

[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 September 2, 2010 by Kohai (log)

[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.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.

[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 September 3, 2010 by KD1191 (log)

[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.