The Era of Copyrighted Cocktails?

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Shortly after the tiki-themed cocktail lounge Painkiller opened its doors on the Lower East Side of Manhattan this May, a man walked into the bar and threatened to issue a cease and desist order. Pusser's, which distills a Navy-proof rum in the British Virgin Islands, trademarked the recipe for a Painkiller cocktail back in 1989. The man claimed that Painkiller's owners, Giuseppe Gonzalez and Richard Boccato, had no right to the name of the bar or its namesake cocktail, which they like to make with rums from Martinique and Jamaica. He was promptly sent packing.

As we've learned from the folks at Goslings, who trademarked the recipe for a Dark 'n' Stormy in Bermuda in the hopes of enforcing it the world over, it's impossible to stop people from using a certain recipe once it's out there. At a certain point, it becomes public property. But when, exactly, does that point occur?

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. The publication of a recipe can be legally protected, but the "expression of an idea," idea of the recipe, 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. But few bartenders publish their recipes. They tend to pass them on as an oral tradition.

A big part of the problem, according to Freeman and other senior bartenders and mixologists, is the "brand ambassador" model. For those unfamiliar with it, it involves big liquor companies hiring bartenders to act as spokespeople for their brands. The bartender not only acts as an advocate but is also expected to create signature cocktail recipes using the product he or she is pushing. Only, these days, the model is so prevalent that liquor brands will tap just about anybody to be a brand ambassador. Oftentimes, these young bartenders (cheap labor compared to members of the old guard) don't have the experience required to create their own cocktail recipes. And so they Google a recipe and tweak it, or simply use something they learned from a mentor —a mentor, mind you, who might be too expensive for a liquor company to hire directly.

"Brand ambassadors are ruining it," Freeman said. "I don't have to tell you about the whole culture of the celebrity chef and how many people want to get involved in this. In no other creative field do you find people who are so easily able to insert themselves into the scene. It's a disturbing trend without question."

As the role of the bartender shifts from in-the-meantime job to lifelong profession—not to mention from invisible serviceman to celebrity craftsman— the industry has become cluttered with self-proclaimed mixologists, consultants, spirits experts, and cocktail bloggers happy to take whatever morsels big brands are willing to throw their way in exchange for their endorsement. Everyone wants a piece of the big spirits industry pie. Freeman urges bartenders to better guard their recipes, a sentiment that contradicts the atmosphere of sharing many bars foster, especially in this era of guest bartending (when bartenders moonlight at a bar that isn't their own). The owners of Painkiller have avoided the issue of intellectual property altogether by publishing their recipes on their website for all to see. Freeman isn't so sure it's a good idea.

A communal spirit may foster creativity, he said, but guarding the provenance of ideas enforces integrity. "I think all creative people at one point or another start to think about these things."