A Blog by Jonathan Low


Jul 27, 2019

You Can't Copyright A Cocktail. What's A Creative Bartender To Do?

Just as in the intangibly-driven world of software, scale matters. JL

Nathan Mattise reports in ars technica:

In the modern drinks world, copyright may be the most useless legal tool for enterprising bartenders. In this modern cocktail renaissance, a killer recipe at an influential bar can suddenly show up on menus worldwide with little more than a written credit. The US Copyright Office puts it plainly: "A mere listing of ingredients or contents, or a simple set of directions, is uncopyrightable." As bartenders work their way up from a single recipe or shift work to helping shape an entire bar program—full recipe menus, training materials, and standardized operating procedures—those are where IP law falls on their side.
Anyone who fancies themselves a fan of cocktails knows the names: the Manhattan, Old Fashioned, Martini, Margarita, on and on and on. In the drinks world, such recipes have stood the test of time and grown into industry icons over decades. But unlike similar cultural colossuses elsewhere—from Mickey Mouse on screen or "Hey Jude" in the stereo—you can find the Negroni being deployed freely at virtually every bar in America. What gives?
"Can you copyright and own a recipe? A recipe in the eyes of the law doesn't have that creative spark," says attorney Andrea Mealey, an intellectual property expert who has done legal work for beverage companies like Gosling's Rum. During a panel on IP in the bar industry at the 2019 Tales of the Cocktail (TOTC) conference, she next points at the ceiling in this conference room. "The design of that chandelier—someone had to come up with it. It's creative, and you can own copyright on that design. I can do a slightly different design and own that as well. But a recipe is like a phone book in the eyes of the law—you can't own something so factual."
In the modern drinks world, Mealey not-so-subtly implies copyright may be the most useless legal tool for enterprising bartenders. (You could at least patent some amazing new tool, in theory.) It's a not-so-dirty secret that many have increasingly become aware of in this modern cocktail renaissance, where a killer recipe at an influential bar can suddenly show up on menus worldwide with little more than a written credit. The US Copyright Office puts it plainly: "A mere listing of ingredients or contents, or a simple set of directions, is uncopyrightable.""In no other creative business can you so easily identify money attached to your creative property," bartender Eben Freeman told The Atlantic back at the 2010 TOTC conference. Freeman has been credited as a pioneer of fat-washing, the practice of infusing a spirit with a fat-heavy flavor like bacon, but Bacon Old Fashioneds appear all over without a cent going back to Freeman. "There is an implied commerce to our intellectual property. Yet we have less protection than anyone else."
Luckily, Mealey's panel this week emphasized there is some hope for modern bartenders looking to profit off good imbibing ideas. And while it takes a lot of circumstance and effort to protect the IP of an individual drink, bartenders can think bigger and package a lot of industry know-how together into entities more easily licensed out to others.

Trademarks and tiki

When it comes to drinks, legal muscle has historically stemmed from two entities: trademarks and trade secrets. Brands like TGI Fridays used to trademark drinks to prevent chain competitors from offering the same things, and individual drinks like the Dark 'n' Stormy or the Painkiller (err, Dark 'n' Stormy® and Painkiller®) are trademarked by individual liquor brands. The Bermudan brand Gosling's earned a US trademark on the Dark 'n' Stormy in 1991, and ever since the official recipe has dictated Gosling's brand rum and Gosling's brand ginger beer. (It doesn't specify measurements, notably—"A really weak Dark 'n' Stormy is still a Dark 'n' Stormy," Mealey says.)
The basic logistics for a trademark, however, make this a rare route for success. To start, Gosling's trademark was helped by its use of specifics (Gosling's Rum, Gosling's Ginger Beer) and later strengthened by the brand's ultimate move into offering those as a package: a pre-canned Dark 'n' Stormy.
"It makes sense to people in Washington DC—'This is a drink, we can trademark a drink, Class 32 Beverages, a-ha!,'" Mealey says. "It's a specific kind of rum with a specific ginger beer—this is a Dark 'n' Stormy."
And while applying for a trademark is relatively easy and inexpensive (comparatively for most legal processes), Mealey says the key to maintaining it is showing a willingness to defend that trademark. Gosling's has done just that throughout the years. The rum makers famously took legal action against the second-biggest alcohol company in the world, Pernod Ricard, back in 2015. Pernod had posted a recipe for a Dark 'n' Stormy to its website, but it used Malibu Rum rather than Gosling's. Eventually, Pernod opted to settle and entered into an agreement with Gosling's preventing a future Dark 'n' Stormy storm.
Not every trademark defense ends with legal action, of course. Mealey says she likely gets three notices a week about restaurants or in-flight menus, and often these just spark cease and desist letters. (Gosling's in the past had sent C&D letters even to bloggers.) The trick now, at least from the company's perspective, is striking the right balance between muscle and market opportunities. If a bar pushes Dark 'n' Stormy drinks with the wrong rum, for instance, can a letter encourage them instead to use Gosling's? A new consistent customer represents a better outcome than a legal fight. (Panelist Daniel Eun, an attorney/bartender formerly of PDT, knows that first hand—he helped open a bar called Painkiller in NYC, which quickly heard from Pusser's Rum. Eun's bar eventually became PKNY and certainly opted to carry different rums.)
"If you invest in the brand, you have to enforce it. Otherwise, you'd have it genericize—Band-Aid and Escalator are trademarks," Mealey says (and one of those has descended to the ground floor of generic). "We don't ever want a rum and ginger to be a Dark 'n' Stormy, so we have to keep these third parties at bay in a way that doesn't make you a bully out in the market. Just call it a rum and ginger; it's not a Dark 'n' Stormy unless you're putting our rum in it, which would be fabulous."

Trade secrets, on the other hand, could be a relatively useful tool for drink creators that doesn't require as much legal upkeep. These are things like the Coca-Cola recipe or the KFC special seasoning—proprietary information kept private for business advantages. At one point in time, this stood as standard practice for bars. Tiki pioneer Don the Beachcomber famously had alcohol's most complex batching system in his heyday, labeling bottles at his bar simply with numbers so bartenders or business partners could make drinks without ever knowing the recipes (meaning they couldn't go elsewhere and profit off a Zombie or whatever).
"[Historically], bartenders just had recipes and wouldn't tell people what they were," says author and bartender John deBary, whose Liquor.com article spawned this panel. "When you quit or got fired, you took the recipes with you."
"When Jerry Thomas put out his book, it was such a big deal because bartenders of the era didn't share recipes," says Erick Castro, bartender/proprietor at cocktail spots like San Diego's Polite Provisions and NYC's Boilermaker. "It might not be as sacred as the magician's code, but it was close, maybe on par. You weren't giving away the keys to the kingdom."Like trademark, trade secrets have been used in modern libations law. Attorney/bartender Daniel Eun shared the story of Lynchburg Lemonade, essentially a Jack Daniel's Collins ("This was the '80s, a dark day for cocktails," Eun says). Bar owner Tony Mason had been successfully slinging these whiskey lemonades in Alabama, and Jack Daniel's initially approached him about some kind of deal for the recipe. But before an agreement could be made, Jack Daniel's reverse-engineered the recipe.
Mason sued accordingly in 1983—and he won, albeit a nominal victory with only $1 awarded in damages. When things later went to retrial, the decision was reversed.
"[What] Jack Daniel's argued was this guy wasn't protecting his recipe," Eun says. "When they went to the bar he worked at, everyone knew the recipe—even the dishwasher. You did zero to protect your trade secret if everyone knows your recipe, and if everyone knows your recipe, then Jack Daniel's can, too." (Lynchburg Lemonade, like Gosling's Dark 'n' Stormy, now comes in a pre-made bottle even.)
Today, this level of secrecy simply isn't the typical modus operandi—recipes routinely get swapped and promoted in order to raise the profile of bars, drinks, bartenders, or any combination thereof. In fact, many bars would likely own the rights to drinks created by bartenders on premises due to common conditions in bartender working agreements. Eun, Castro, and their fellow panelists also highly encouraged anyone worried about their drinks' IP to read the fine print before considering entry to a recipe contest or working with a hotel or other hospitality brand that wants to do a video series of tips and techniques. Many such agreements come with contracts that sign over ownership rights.
So how can an enterprising bartender make money directly off their work nowadays? Eun and Castro encouraged their peers to think bigger than individual recipes. When opening new spots, make sure to have contracts that specify who owns the licenses to things like the bar name or drinks menu. (This prevents a business partner from duplicating everything without a bartender's involvement, or it may also allow a bartender to open a second location if an investor is content with just one pet project).
And as bartenders work their way up from a single recipe or shift work to helping to shape an entire bar program—full recipe menus, training materials, and standardized operating procedures—those are where IP law falls on their side.
"Think about software licenses nowadays—you don't own, you have a license," Eun says. "Adobe or Microsoft can pull functions off your program and make it do what they want it to do. It lets them do good things like updates, too. This is the way we've now done it. You own your bar manual and license it—you can use it while I'm employed or in perpetuity while I'm employed, but that license is pulled afterwards."
Eun points to examples like the popular JERRY platform being used for training by bars across Asia. And he says he does his manuals exclusively on Evernote these days in order to be able to quickly share notebooks with paying customers and then disable access after a contract is up.
"I've pulled my materials when leaving and seen bars have to redo everything, even Grenadine recipes and daiquiri training," Castro says.
"And sometimes," Mealey adds, "it's cheaper to stay on it rather than reinvent the wheel."


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