Copyright & Cocktails

by Darcy O'Neil on September 08, 2010

The topic of protecting ones creative cocktail works has amp’d up lately. After Eben Freeman's session on cocktails and intellectual property (which unfortunately I couldn’t attend due to a conflicting event) the conversation has started to polarize and two camps are forming - for protection and against protection. Articles have been written in The Atlantic, Accidental Headonist and I’m sure elsewhere, as well as my own personal conversations with people like Kyle Branche and others. So what’s the deal?

With the rapid growth of our cocktail community, and by extension the growing media attention, there are people who would like to turn their drink related works into some form of income or at least get recognition for them. However, food and drink has exemptions from the copyright, trademark and patent laws that make it very hard to protect ones works. This in itself isn’t horrible, chefs and other food related companies have had to deal with it for centuries. The real problem is when others take credit for a persons work and don’t give recognition or attribution to the creator.

So what’s the big deal, it’s only a recipe? Well actually, it can be a lot more. For example, let’s taken Eben’s claim of being one of the originators to “fat washing” and bacon infused spirits. His work and creatively definitely started a trend in the cocktail community and generated a lot of uncredited press for a period of time. It was, culinarily speaking, a unique process. Impressive, but it probably wasn’t a financial, or even a recognition, windfall. Now here’s the part that pisses people off—let’s say, a vodka company comes along shortly after and creates bacon flavoured vodka, taking credit for the unique creation and profiting substantially, because they lack morals and don’t use real bacon, but artificial bacon flavour 2,4,6-tris(2-methylpropyl)-1,3,5-dithiazinane and 2-Methoxy-4-methylphenol.

The point being that an interesting idea has been picked-up, distilled to the lowest common denominator and uncredited (not that I’d want to be credited with bacon flavoured vodka, but still). Plus no financial benefit for the work.

This leaves creative bartenders with a few choices. Obviously the “I’m taking my toys home, I don’t want to play with you anymore” option where people keep everything secret. Sometimes this works, but if you are going to do it, follow in Mr. Ramos’ footsteps and confess on your death bed or put your recipes in a book when you retire. You’ll save future generations of Beachbum Berry’s and Dave Wondrich’s a lot of hassle.

The downside is that even though you’ll keep your secret recipes, people are pretty smart and will create close approximations, which may actually become more popular then your original. You’ll then end up whining that you were the creator, but nobody will believe you, then you’ll do those crazy things like show up on TV shows like Maury Povich and Judge Judy trying to prove your claim. Then you’ll try to suppress your anguish with alcohol, then women/men/transvestites and probably drugs-legal or prescription. Then you will go through rehab, hit the TV circuit, angry at the cocktail world and professing that you’ve seen the light and prohibition is the way. Really, that’s just a scorched earth policy ‘cause you’re bitter. Here’s some other options before you make that fateful decision.

Eben’s “fat washing” was pretty basic in terms of chemistry, but that doesn’t really matter, it’s the new application of an old technique - which can be patented. Technically the extraction process can be patented, because it is chemistry and not food. You don’t serve the “extraction process” you serve the final product. However, the whole food and drink thing throws a wrench in the patent protection cogs. Plus, now you need to search through millions of patents, an expensive process, to make sure that your invention is new, and especially that you aren’t infringing on some other patent. If you are going to market your “process” as an invention you open yourself up to claims of infringement - it’s a two way street.

There is nothing wrong with protecting ones work, and if protection weren’t available via the patent system, we wouldn’t be as technologically advances as were are today. For all the naysayers, just read through old recipe books prior to copyright laws, the vast majority are plagiarised, pretty much word-for-word. It’s so bad that actually tracking down who created the recipe is extremely hard, plus there are always little changes which makes it even harder to reproduce the original drink / product. Protection and documentation keeps things clear.

My preferred method of protecting my work is to put my work out into the open and enthusiastically give credit to others for their work and creations (Filby Cocktail anyone). I also politely (as if Canadians would do it any other way) protect the parts of my work that can be protected. Art of Drink serves that purpose very well and has been great for recognition.

Ideally the world of professional bartending would follow that of the International Brotherhood of Magicians. Here’s a volunteer organization that has been around for 86 years with the goal of promoting three things:

1. To organize individuals interested in the practice and promotion of the Art of Magic
2. To facilitate the exchange of magical ideas
3. To promote harmony among those interested in magic

Remove the word magic and replace it with bartending or mixology and we’re in business. The interesting thing about magicians is that they’ve been pretty good at keeping their trade secrets, secret. They depend on one another to be successful, but occasionally there is a dingus who gives away the secrets, but for the most part it’s pretty solid.

Now I’m not saying that people can’t figure out magic on their own, what I’m saying is that as a group they have a shared sense of purpose, which most bartenders / spirit companies don’t right now. Pre-prohibition, bartenders were members of powerful unions, not that would be a solution today, but they had a sense of purpose.

So to wrap this up, Eben is right that truly unique processes should at the very least be acknowledged and attributed by people who use the process. I don’t think Eben is saying “give me all the money”, what he wants is some form of recognition. Some people are misinterpreting Eben’s comments, but I assure you that he is an outstandingly creative bartender who wants to move this industry forward. I can understand where he is coming from, it sucks when people don’t give credit where credit is due. Sadly, that happens all to often.