09/01/2010 02:09 pm ET Updated May 25, 2011

Cocktails As Intellectual Property: Should Bartenders Copyright Their Work?

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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