Bartenders Looking For Greater Intellectual Property Protection For Drinks

from the are-you-serious? dept

Copycense points us to yet another story about another person in another industry whining about not getting enough monopoly privileges from the government. This time, believe it or not, it's bartenders wanting to protect mixed drink recipes. Seriously. Unfortunately, the writeup at the Atlantic, by food writer Chantal Martineau seems to get an awful lot of points about intellectual property totally mixed up. The article slips back and forth between trademark law and copyright law (which are extremely different) and then has this whopper:
The publication of a recipe can be legally protected, but the "expression of an idea," as the lawyers in the seminar explained, cannot. It's the reason musicians can't be sued for covering another band's song in a live show.
So many things wrong in two short sentences. First of all, no, the publication of a recipe cannot be protected. Straight from the US Copyright Office: "Mere listings of ingredients as in recipes, formulas, compounds, or prescriptions are not subject to copyright protection." That said, if there is "substantial literary expression" in, say, the description of how to prepare the recipe that part (and that part alone) could be covered by copyright, but that should have little impact on bartenders making similar mixed drinks. Also, copyright is, in fact, supposed to protect the expression, contrary to the statement above. This is the whole basis of the idea-expression dichotomy, which Martineau seems to get backwards. As for why musicians can't be sued for covering another band's song in a live show, that's got nothing to do with the difference between an expression and an idea, and everything to do with performance rights licenses from venues to PROs like ASCAP and BMI that (in theory) are supposed to cover the copyright (yes, there is one) on the composition.

As for the meat of the actual article, there's a lot that's very troubling in there, though Martineau doesn't seem to challenge any of the claims made (given the confusion on the topic, perhaps that's why). It starts off with a story about a trademark violation, when a new Manhattan lounge called Painkiller was threatened with a cease-and-desist from the distillery Pusser's, who had apparently trademarked a drink called Painkiller back in 1989. But the only issue there is the name (which is trademarked), not the recipe. So it's odd that this is used as a lead in to a discussion about copyright.

The actual story focuses around an apparently angry bartender, Eben Freeman, who seems to be upset that he doesn't get enough credit for inventing certain drinks:
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."
Of course, Freeman is exaggerating the claim that bartenders "have less protection than anyone else." He has just as many protections, it's just that you can't copyright a recipe. If it's true that he really did come up with a novel and non-obvious process for "fat washing" (I really don't want to know), then he could have applied for a patent on it, but in an article confused about trademarks and copyright law, no one even mentions patents. Perhaps Freeman should have done some research first.

From there the article goes off on a totally random tangent about how big liquor companies have been hiring young bartenders to become "brand ambassadors" where they're expected to come up with a signature drink using the specific brands in question. But, the accusation is, these bartenders "don't have the experience" to do so, and instead just copy someone else's recipe and tweak it. Of course, that's not illegal. At all. And it's not a problem. It's how innovation happens. You build on the ideas of others, and you tweak it to try to make it better. There's nothing wrong with that at all. In fact, it should be celebrated. In fact, we've seen how the very same lack of copyright protection over recipes has helped food and restaurant trends grow and spread in valuable ways. Instead, this just seems like a complaint about someone who doesn't like young bartenders and the way they work. But that's not an intellectual property issue.

Over at the Washington Post, Ezra Klein does a nice job pointing out that, just as with fashion copyright, there's no evidence for a need for a "drink copyright,":
As is always the case with granting individuals legalized monopolies over intellectual property, we should start by asking whether consumers are suffering because bartenders don't have enough financial incentive to innovate interesting new drinks. Given that the past few years have seen an incredible explosion in creative mixology, that's a hard case to make. The status quo seems perfectly good at encouraging innovation -- so much so that the drinks have gotten increasingly comical.

And it's not just that there's no evidence that consumers are being harmed by the current arrangement. There's clear evidence that they're benefiting from it. I live in Washington. But a lot of really good cocktails are thought up in San Francisco. Happily, I can drink a lot of those cocktails, as the most successful recipes quickly proliferate.
But, of course, the reason that Freeman's complaint and Martineau's article don't ask those rather basic questions, is that it appears both don't realize that intellectual property is supposed to be about incentives, rather than protectionism and making sure that some guy who created something "gets his proper credit." Freeman's complaint comes off more as someone who just doesn't feel he's received enough recognition for his work as a grumpy old bartender. But that's got absolutely nothing to do with intellectual property law -- patents, trademarks or copyrights -- and should have no bearing on whether or not he likes young bartenders coming up with derivative drinks.


Reader Comments (rss)

(Flattened / Threaded)

  •  
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    Dark Helmet (profile), Sep 2nd, 2010 @ 8:39am

    Bah??!!

    "If it's true that he really did come up with a novel and non-obvious process for "fat washing" (I really don't want to know)"

    Oh, hell YES you do, my friend. Fat washing is the technique by which you infuse fatty substances into liquor and then extract the fat, leaving the flavor in. It has resulted in one of the most splendiferous alcoholic creations known to man: Bacon infused vodka and bourbon.

    http://chowhound.chow.com/topics/589978

     

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      identicon
      Michael, Sep 2nd, 2010 @ 10:15am

      Re: Bah??!!

      I live by the mantra that "bacon makes everything better - except ice cream" and I'm not comfortable with making my vodka taste like bacon.

       

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        identicon
        Chris, Sep 2nd, 2010 @ 12:51pm

        Re: Re: Bah??!!

        actually - small bits of real bacon, added to dark chocolate ice cream are remarkably good.

        I'm just sayin'...

         

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      duffmeister (profile), Sep 2nd, 2010 @ 1:15pm

      Re: Bah??!!

      bacon is net to godliness!

       

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      vivaelamor (profile), Sep 3rd, 2010 @ 2:23pm

      Re: Bah??!!

      "Oh, hell YES you do, my friend. Fat washing is the technique by which you infuse fatty substances into liquor and then extract the fat, leaving the flavor in. It has resulted in one of the most splendiferous alcoholic creations known to man: Bacon infused vodka and bourbon."

      As a vegetarian and teetotal person, that sounds so wrong.

       

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    weneedhelp (profile), Sep 2nd, 2010 @ 9:23am

    making similar mixed rinks

    Where can I get these mixed rinks? lol.

     

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    Kevin (profile), Sep 2nd, 2010 @ 9:37am

    Perhaps? P.S. I have about had it for the day already so forgive me

    Maybe I should apply for a patent on a lemon flavored water where by I serve iced water with a lemon slice (not to exceed 3/8") and then serve. Then perhaps the restaurants will either pay up or be forced to serve the more acceptable "lemon wedge" design which I find more acceptable anyway. (Makes it easier to squeeze into tea)

    P.S. I have about had it for the day already so forgive me

     

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      identicon
      Michael, Sep 2nd, 2010 @ 10:18am

      Re: Perhaps? P.S. I have about had it for the day already so forgive me

      I'm just going to patent a process for serving a liquid designed for ingestion in a container designed to be self-standing and of less than 70 ounces.

       

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    •  
      identicon
      Anonymous Coward, Sep 2nd, 2010 @ 10:46am

      Re: Perhaps? P.S. I have about had it for the day already so forgive me

      And the lemon water concoction needs to be served with at least the minimum amount of flare on your vest or suspenders!

       

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    Matthew (profile), Sep 2nd, 2010 @ 9:45am

    me me me

    The real issue behind so much of these cases is a fundamental disconnect between the culture that produced the concepts of copyrights and patents and the one that now uses (abuses) them.

    Our culture is willing to shove its peers and its progeny under the bus in exchange for ephemeral fame and fortune.

     

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    william (profile), Sep 2nd, 2010 @ 9:49am

    Hooray!! Another place where I can use "Warning: Journalist does not fully understand the subject at hand"

     

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  •  
    identicon
    Anonymous Coward, Sep 2nd, 2010 @ 9:53am

    Remember the Flaming Homer? Life imitating the Simpsons.

     

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    Nastybutler77 (profile), Sep 2nd, 2010 @ 9:54am

    ...it appears both don't realize that intellectual property is supposed to be about incentives, rather than protectionism and making sure that some guy who created something "gets his proper credit."

    It appears most of Congress and the President (along with the DOJ and DOC) don't realize that intellectual property is supposed to be about incentives, rather than protectionism.

     

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    Greevar (profile), Sep 2nd, 2010 @ 10:32am

    Great, let's just give everyone a monopoly on everything conceivable and maybe then no one will have a monopoly?

     

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      Hephaestus (profile), Sep 2nd, 2010 @ 10:39am

      Re:

      "Great, let's just give everyone a monopoly on everything conceivable and maybe then no one will have a monopoly?"

      Its called the public domain ....

       

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    NAMELESS ONE, Sep 2nd, 2010 @ 10:43am

    @15

    hyper inflation occurs when you give one gorup /comapny in each industry a monopoly why?
    cause prices go through the roof as we're seeing and you can afford less and less....

    capitalism on consumer side needs competition so one can have value and that drives innovation to do more or new things.

    Patents and copyrights as they are now are eroding that very fast. I am against it all, but i think were going ot have to allow them to have forever patents and copyrights and have people die more to see how evil it really is.

    AKA a few missing kids found dead that could have been found say by the same FBI that now polices IP more?

     

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    Anonymous Coward, Sep 2nd, 2010 @ 1:02pm

    Walking...has walking upright been patented or copyrighted? Breathing was patented on /. already

     

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    Anonymous Coward, Sep 2nd, 2010 @ 1:59pm

    IP laws are like a contagious disease it spreads all over the place and infects a lot of people and threatening the foundations of society.

     

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    identicon
    Sean, Sep 2nd, 2010 @ 6:25pm

    I somehow doubt that said grumpy bartender was the first person in history to realise that flavours soluble in fat are also soluble in alcohol. Does he think he's the only person on the planet allowed to make fat-washed alcohol-based cocktails? Please.

     

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    identicon
    Andrew D. Todd, Sep 3rd, 2010 @ 12:18am

    Eban Freeman Wants a Monopoly of a Technique Invented Hundreds of Years Ago.

    "Fat Washing"" is not new. Perfumers have long known the technique of liberating flavors and fragrances by successive washings in fat and alcohol ("Enfleurage a l'Huile"). This technique goes back at least a couple of hundred years. There is an interesting if rather creepy historical novel, Patrick Suskind's _Perfume: The Story of a Murderer_ (1986) [originally published in German as _Das Parfum_, 1985 ], about the homicidal adventures of an eighteenth-century French perfumer. See chapter 36 for a description of the technical process of Enfleurage a l'Huile.

    In a technically mature area like fashionable clothing or fine cooking, you can practically never achieve the kind of novelty required for a patent. Experience indicated that, while some solvents, such as ethanol are merely intoxicating, others, such as methanol, are actively poisonous.

    The kinds of "playing with technology" which some people are doing under the name of "molecular gastronomy," are essentially campy, and in the long run, they are bound to fail. In the long run, Coca Cola and Hormel Spam and Cheez Wiz are examples of what Molecular Gastronomy is all about. As a nondrinker, I am not very well placed to comment on alcoholic beverages. I do know something about cheese. Adding strong flavorings, such as pepper and garlic, is essentially something one does with cheese which isn't very good. A good cheddar can be eaten, as is, with a piece of bread or a cracker. A piece of bacon-flavored cheese (or, more precisely, "cheese-flavored product," as per USDA labeling regulations), when you taste it more closely, will always have chemical overtones.

    Good foodstuffs are usually as old as the hills. Cheddar cheese derives its name from a village about ten miles outside of Bristol, in England. In the great age of sail, before 1800, Bristol was the great "blue water" seaport of England. Ships sailing from London tended to be going only as far as the Netherlands (ie. Benelux, at that date), a passage only lasting a few days. Ships sailing from Bristol tended to be going on long voyages lasting several months, real expeditions. So they required the best of provisions. The village of Cheddar organized a cheese-making cooperative, specializing in that kind of hard yellow cheese which actually improves when it is several months old, for which the sailors would pay a premium price. Similar cheeses were created in the other maritime nations of Western Europe. The Dutch "sea beggars" lived on Gouda cheese, for example when they went out to hunt down Spanish treasure fleets.

     

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      techflaws.org (profile), Sep 3rd, 2010 @ 3:54am

      Re: Eban Freeman Wants a Monopoly of a Technique Invented Hundreds of Years Ago.

      You should definitely read it though I don't know how good the english translation is. The german prose is outstanding.

       

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    Nina Paley (profile), Sep 3rd, 2010 @ 7:01am

    Liquortarian

    How timely - almost. Today's Mimi & Eunice comic strip is highly relevant!

     

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    Pete Braven (profile), Sep 3rd, 2010 @ 10:29am

    Who dreamed thish up? hic,..

    At the end of a long day, or night for that matter, I don't think the average punter givesh ash it.
    Maybe the lawyers behind this were that crew Messrs Nummb & Nummber?

     

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  •  
    identicon
    Bartender, Sep 9th, 2010 @ 10:24pm

    Maybe I should apply for a patent on a lemon flavored water where by I serve iced water with a lemon slice (not to exceed 3/8") and then serve... lol

     

    reply to this | link to this | view in chronology ]


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