Cocktails As Intellectual Property: Should Bartenders Copyright Their Work?

The Atlantic:

Last month, at Tales of the Cocktail, a week-long convention for the spirits industry in New Orleans, Eben Freeman, best known as the creator of smoked Coke and "solid" cocktails at the now-defunct Tailor in Manhattan's SoHo neighborhood, gave a seminar on protecting one's intellectual property as a bartender. The panelists, Sheila Morrison from the Trademark Office, and Riley Lagesen, who has a private business law practice with a niche focus on the restaurant industry, discussed the nature of a bartender's creative work and who is allowed to use it. After the seminar, I spoke to Freeman, who admitted he came up with the idea for the talk after becoming fed up with other bartenders and establishments taking credit for and profiting from his recipes and techniques. (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.) "Someone needs to get sued ... to set a precedent," he told me.

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

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Comments

[Billy2]

01:54 PM on 09/02/2010

It's been long-estab­lished that one can not copyright a recipe. The public's right to prepare food outweighs the utility of a copyright on a recipe.

However, there are other protection­s. One can trademark aspects of the drink. If the drink has a new or novel technique involved (like fat washing), the preparatio­n could be patented. Otherwise, there's trade secret protection­.

[jcwtts1]

04:57 PM on 09/02/2010

But can copyright a technique? Not sure. The problem isn't you making the food it is profiting from a technique or idea you didn't come up with.

[Billy2]

05:14 PM on 09/02/2010

No. One can not copyright technique. Techniques are protected by patent. If the technique is patentable (and patented), then the infringeme­nt comes from using that technique without permission­. There are, of course, exceptions and defenses.

If someone comes up with a novel technique and isn't able to patent it or doesn't patent it, there's simply no patent protection­. But this isn't exclusive to food preparatio­n. This is the way every business works.

[suemj]

12:36 PM on 09/02/2010

No you cannot! That would have to be some drink, and with some kind of personally made/inven­ted spice that would totally change the taste of the drink, but you'd keep that to yourself anyway, and wouldn't have to tell anyone, which would keep them coming!

[mellene]

12:08 PM on 09/02/2010

I think that they should be able to copyright the name of a drink they invent. Afterall, names like Champagne, Cognac etc. draw a much larger price tag than sparkling wine or brandy. Seems like followers might flock to where these bartenders work and the books of their cocktails that are subsequent­ly published.

[Valerie Keefe]

12:03 PM on 09/02/2010

I'm sorry Mister Simpson, you can't copyright a drink!

[The Down to Earth doctor]

08:25 AM on 09/02/2010

Very interestin­g! I developed a recipe called The Healing Salad. It's available for free on my web site http://www­.thedownto­earthdocto­r.com. Does anybody think I should copyright it?

[Just walkin the dog here]

11:10 PM on 09/01/2010

Sort of like copyrighti­ng math, a name maybe, but I can come up with the same combinatio­n and call it something else. Also, try to collect royalties from Dave's Bar and Grill in West Oshkash Iowa.

[grailknight]

10:38 PM on 09/01/2010

Flamin' Homer/Flam­in' Moe!

[ontariogirl]

05:44 PM on 09/01/2010

Sure why not. If Paris Hilton can copyright "Thats Hot" then anything goes.

[Tails]

02:52 PM on 09/01/2010

I think it involves specific ingredient­s, or an unorthodox make-metho­d, then yes.