Mixological Intellectual Property


Had I been at this year’s Tales of the Cocktail, one panel I’d have been interested in was the one on intellectual property rights and cocktail creation. It was lead by mixology superstar Eben Freeman, along with a copyright lawyer and an official from the US Trademark Office. The panel discussed the value of innovations in the world of mixology, and how, if possible, to protect and/or monetize that value.
Eben is one of the true innovators behind the mahogany in the world today. He’s a legitimate master of promoting himself and the craft of bartending as well. And he’s one pissed off camper.
Eben’s concerns run from simple pirating of his recipes, to the co-opting of his inventions, such as “fat washing”. (Fat washing is the disgusting-sounding but yummy-making process of infusing fat-based flavors such as bacon into spirits) His complaints run from a simple desire to be compensated for his ideas in some way, to a more parochial desire to prevent other young spirits professionals from using his ideas to advance their own careers.

I heard nothing of this issue or this presentation until Gaz Regan started a Facebook discussion on it. (Update: Gaz has posted an extended open letter on this subject. It is very zen… and very Gaz.) But the stone that hit the water and started the ripples was an Atlantic article entitled The Era of Copyrighted Cocktails? Those ripples have spread all over the place, and well beyond the Cocktailosphere. I’m going to stick my oar in because I care about the craft, and because as a writer, I care deeply about intellectual property rights.
I’m also sticking in my oar because, while I admire Eben and his work a lot, I apparently can’t help but bash him on this blog (as noted just in my last post, which I swear I’d written before I started in on this). He brings up real concerns and an important issue here, but much of the damage he claims is belied by the evidence, at least as regards him personally. And his complaints reveal a guild-like mindset that is the sort of thing that leaves me spitting nails.

Let’s get the Joe Friday out of the way first. You cannot, in the US at least, copyright a recipe. Mike Masnick of TechDirt (a site pretty far removed from mixology, even molecular mixology) has a good piece on the details of this.

“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.

What you can protect legally, via Trademark, is a name as applied to a specific set of ingredients. I’ve had a lot of fun with posts in the past wherein I play around with being really strict about not getting into trouble with the lawyers of the two most famous drinks so protected: The Dark ‘n Stormy and the Bacardi Cocktail. That those two posts produced (and still do) a healthy dose of traffic is further evidence of the importance of this issue. (Or of good search engine optimization, but I know that’s not true…)

As to why the law is the way it is, you can glean some of the reason from Ezra Klein’s piece on this kerfuffle in the Washington Post:

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.

It hurts my teeth to quote Klein in any way approvingly, especially with his clear disdain for the modern cocktail movement, but he strikes at the truth of copyright and patent protection. The Constitution and the government do not allow and grant these protections to protect the creators, but to promote the benefit to the general public. The idea is to increase the creation of knowledge by attaching limited property rights to it. Article 1, Section 8 states, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” There is therefore a real reason to debate what should and should not be protected. This is why there is such a giant fight over things like patenting the human genome. Everybody rounds up lawyers, guns, and money to determine not just whether Genentech has a right to my genetic sequence, but whether it would be good for society as a whole if they did.

As far as cocktail knowledge goes, I think it is fair to split Eben’s complaints at least in two. Klein and Regan both note that the free movement of recipes is a very good thing indeed that has fueled the very renaissance that gives us so much joy, and top bartenders their livelihoods. As Regan says, Recipes are to be shared.

Not everyone, especially Eben Freeman apparently, agrees. But the law is clear, and I see zero chance of it being changed to suit Eben’s outraged sensibilities. As Klein notes, what is not broken ought not be fixed. And Eben would be wise to heed the lesson of Cook’s Illustrated, who attempted in 2008 to rewrite copyright law unilaterally in this same way. They were laughed back to their holes, and ridiculed in various entertaining fashions. Eben wants most of all to be respected and admired, as that is how he’ll advance his career. Encouraging your industry to take up copyright trolling will not make friends in the business. Not to mention among bloggers, who tend to be a titchy bunch at the best of times.

Eben’s second complaint, his various molecular mixology techniques, or credit for creating them, being stolen is both more defensible and more idiotic. Yes, a process such as this is more reasonably patented (reasonably, not easily) than a recipe. Yet Eben’s main complaint (wisely) seems to be not so much a desire to own the process as to be recognized for originating it. He desires the recognition and the professional advancement that recognition would bring. Fair enough.
Literally last night, my wife and I watched a show on the Cooking Channel that spent a great deal of time with Eben, giving him credit for fat washing and other processes! In the eye of whatever part of the public has heard of this, and in the mind of the industry, Eben already has the credit for both this process in particular and being so innovative in general. This has and no doubt will continue to contribute greatly to Eben’s practice and his bottom line. Eben profits from his innovation because he is brilliant and because he is an effective self-promoter. Not so incidentally, this is how creators in fields where stronger protections are available also get ahead. It is not now, nor ever was true that if you build a better mousetrap, the world will beat a path to your door. Only if you bust your hump after inventing it will that path be beaten.

In fact, I’d suggest that for this field, making a practice of patenting or copyrighting things will only damage the industry as well as consumers.
The craft cocktail industry is not so large or profitable that any licensing revenue to speak of would even be available. The only effect of limiting the transfer and adoption of ideas would be to limit the number of customers and markets where that idea penetrated, thus abrogating the precise motive for granting intellectual property rights protections in the first place. This alone would stifle the growth of the industry, hurting everyone from the bar backs at the Velvet Tango Room to the mighty Eben Freeman.

And remember what I said about profits? Copyright and patent lawyers do not come cheap, and they don’t work for drinks. (Well, maybe this drink) If the craft cocktail industry wants to siphon off the cream of its profits to lawyers rather than to bartenders, by all means start an orgy of patenting, trademarking and copyrighting.

And please don’t forget the phase two of this process: the inevitable court battles that will ensue. “Someone needs to get sued … to set a precedent,” says Eben with a not-so-charming mix of churlishness and naivete. When everyone starts calling for the lawyers, guns, and money, the lawyers mostly end up with the money and the guns, leaving the clients with mostly used ammunition…. Paul Allen recently sued, um, everyone. The trillion dollar software industry can afford (maybe) this sort of legal Keno. I imagine that it is hard enough to find investors for an innovative craft bar right now, try doing it when you have to add the risk of patent infringement lawsuits into your business plan.
We need lawyers discussing their drinks whilst leaning over the bar, not around a deposition table.

Now let’s examine Eben’s last complaint: Brand Ambassadors. Brand ambassadors are spokespeople hired by a brand or label on an international, national, or even local level to drum up sales and loyalty to their brand. As more and more brands pick up on the idea, it is not just celebrities like Eben who get these jobs. “…the model is so prevalent that liquor brands will tap just about anybody to be a brand ambassador,” says the Atlantic simplistically. “Brand ambassadors are ruining it,” it quotes Eben, “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.”
Don’t be an asshole, Eben. If you want to know why I’m spending so much space while talking about this important issue on bashing Eben, the credentialist douchebaggery in that last quote was the trigger. This is exactly the way every frigging creative field works. If you have the guts and gumption to enter a creative field, you can get in. If you have the talent, you get to stay. If you have the spark, you can vault to the top over more established stars… unless you stifle the field with guild-like demands that newbies wait their turn.
Listen, Eben, just be glad that at least one industry in the country is hiring, and that you are at the top of that profession. I don’t think that Eben does any actual work as an “ambassador” himself. I speak here of the general field of marketing liquor and ideas to bars.
Even if the Atlantic’s snooty description is really an accurate picture right now, this kind of boom has happened a million times before, and it won’t last. Many brands will soon discover that they don’t need a brand ambassador, actually. And the “just about anybodys” won’t get rehired… unless they turn out to be good at the job. (Maybe, shudder, better than Eben?) And if you click my link at the top of this section to an earlier post of mine on brand ambassadors, you’ll note therein that creation of brand-approved recipes is but a tiny part (if any) of a brand ambassador’s success.

I think I’m done bashing Eben for the most part, but I’ll continue to use him as an example as I return one last time to the real root of all this controversy: recipes.

Of course, a mixologist who wants to jealously guard his secrets can follow the models of Trader Vic and especially Don the Beachcomber, and not reveal his recipes to anyone. To be a success via this means, you’ve got to be hard-working, a creative genius, and be willing to take on the significant financial risk of owning your own business. It’s anyone’s right to go this route as an individual, but you can’t build an industry on the assumption that there is a ready supply of Don Beaches out there to run as many bars as are needed.
Besides as Darcy notes in his post on all this,

… 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.

If you want to know how best to protect your recipes, grow both your industry and your legacy instead. There is a real-world example of how this works that touches upon almost every aspect of this debate, and confirms the wisdom of the government on this entire matter. (And that is likely the last time you’ll see me write “wisdom” together with “the government” unironically in this space.)

I recently wrote about what I call the Gospel of Vodka, the Cosmopolitan. Invented by a South Beach bartender (or maybe one in the Meat Packing District), the original really wasn’t that good of a drink. There were even other drinks called Cosmopolitan before. And it appears to have been the result of an early act of Brand Ambassadorship in that it was created to use a specific citrus vodka. Were this a world where we protected recipes, the drink would likely have died a rapid death there, with consequences down the road, as we shall see later. But we don’t, so Dale DeGroff took the recipe and modified it (a practice Eben finds odious) to make a much better drink. One way he improved it was his signature “invention” of the flamed orange zest, which anyone who wants to today can copy. Madonna was photographed drinking one of DeGroff’s “modifications” and people were interested. Sex and the City hit, and everyone wanted Cosmos. In a world where we copyright recipes, or in one where Dale hoarded his recipe, countless bars would have not been able to offer the drink, and millions of women would have gone right along drinking White Zinfandel instead of discovering cocktails. As I have argued before, the explosive popularity of the Cosmo gave today’s craft bar revolution the initial financial critical mass it needed to explode to where it is today.
No free and open sharing of recipes, and Eben likely doesn’t have the life he does today, hundreds of craft bars would either not be open, or not have the look and feel and quality that they do, and I’d probably not have much to write about. I generally despise the fuzzy thinking that goes into the phrase, “Information Wants To Be Free.” But this is a case where we have ample evidence of one arena where it clearly benefits all, even Eben Freeman.

{For what it’s worth, I am not a lawyer. But if we need lawyers to interpret language such as, “mere listings of ingredients as in recipes, formulas, compounds, or prescriptions are not subject to copyright protection,” or worse, lawyers start bullying people by pretending there is an alternate interpretation beyond a plain reading, or worst of all, lawyers are allowed to make stick alternate interpretations, then God help us all.}

About the author

Doug

I am 48 years old, married with two young daughters. My interests are tennis, reading, computers, politics, and of course cocktails. I run a murder mystery party business that caters to both corporate and private events, Killing Time, murder consultants.

9 Comments

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  • ‎2 comments for you: First, I attended this seminar at Tales, and took a lot of good notes. Very interesting.
    Second, I just did ‘FATWASHING’ for the new menu at M……may sound disgusting but is DELICIOUS. I used that technique to infuse applewood smoked bacon in to Makers Mark, then I am adding Ohio fresh pressed apple juice, Ohio maple syrup,fresh lemon and baked apple bitters. It is AUTUMN in a Martini glass. I will let you know as soon as it is on the menu so you can come Imbibe.—cris

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  • Doug,
    I will make it a priority to mount the soapbox more often in the future as this issue has created more interest in my humble personage than any molecular application I ever did youtube.
    I would like to make one point and this is in no way a defense or reaction to your sound and reasonable argument.
    If you ,or my good friend Gaz ,or the majority of industry professionals who have chosen to site my seminar had actually attended..there would not be a need to hold me out as an example of all that is wrong in our industry.
    Chantal’s article was a brief synopsis of a subject which affects us all and is far too complicated to put in a brief.I am happy that people are at least talking about the idea of giving credit where it is due even if it comes at a price of looking “churlish and niave”
    I did not organize this seminar or appear in the Atlantic to bitch about not being given credit or ask to be paid more attention or money. I never asked for a copyright or a trademark…ever. I have been nothing but open with my ideas and processes as you were witness to on National television. I hold myself out as an example of someone in this industry who has the great fortune to have my ideas put into print and establish precedent..our only recourse.
    I ,naturally, cited frustrations from my personal experience as an example of what not to do.I am glad you are aware of my connection with fat washing, if you dig a little deeper into youtube, you will see that others do not.
    The first thing we covered in the seminar was to let everyone know that trademark and copyright cannot protect you …period. Most bartenders think that when they leave a restaurant or bar they have worked in and contributed their intellectual property to…they own that proerty, the restaurant has to stop serving their drinks, wrong. The restaurant has the right to sue you if you use what is now their recipes unless you signed a shared use agreement with your employers before being given the ” privelege” of putting your drinks on their list and making them thousands of dollars in beverage revenue. This is the type of thing which drives me crazy..not because I am pissed at someone who uses my recipe.
    We are the workers in this “Cocktail Revolution” and we are not being properly compensated or credited, simple.
    If I am an example of success in this industry, our business model is broken. I have been out of work for months until recently and have no 401k after 20+ years in this industry. Diageo and Pernod Ricard get fatter every day.I find it impossible to understand how anyone could be upset over someone trying to stand up for worker’s rights. If we do not protect ourselves, we will get abused and if it happens to a big dick like me…think of all the professionals and home enthusiast who will be played in hopes of some recognition, their name in the paper or a free trip to the distillery.

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  • bourbon and branch, gin and tonic, cuba libre, that’s pretty much the beginning and end of my cocktailian wanderings. Otherwise it’s single malt neat and #$%^ alla the nancyboys that presume to complicate the process of getting my head bad.

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  • Eben,

    First off, FWIW, my wife (the chef and professional scientific journal editor) is 100% on your side in this. And I can certainly feel your pain. I’m one of the most established players in my own (much smaller) field and the world is not exactly making it difficult to find time to write about cocktails right now….

    But I stick to my guns that neither the law nor the industry is “broken”, per se. Of course Diageo and PR “get fatter every day”. If, by “fatter every day”, you mean that they make profits routinely. They are both huge manufacturers in one industry (liquor), and effectively commodity providers to another (yours). Profits and growth are required for such companies to even survive. And if you note, Diageo’s stockholders have made barely 20% on their investment (if you include dividends) over the last five years. Pernod Ricard’s owners have lost money.

    That does NOT negate your concerns at all. It’s just to point out that there’s a lot less money in this field for anyone than it might seem. My point there, and it is what my main thrust in the post above was about, is that recourse through the courts is pointlessly destructive, unless you want to make a tiny blip in the already massive profit stream of the legal industry.
    (That said, you mention something that I genuinely do not understand, and as I said, I do wish that I HAD been at your seminar to understand it. If you cannot protect your recipes, I fail to see how the restaurant can either. Unless you are Mickey Mouse, copyright law makes no distinction between individual and corporate work product rights. How could Bob’s Bacon Burgers and Bourbon sue you for using a cocktail from “their” menu, but not be able to sue Pete’s Pork Potables if they copy it? I’m not scoffing here, I genuinely don’t understand.

    That said, the other side of this issue is real, and while I don’t think the business is broken, it is the nature of business that it can always be massively improved. I’ll write more about the things I think we should do, and I encourage more people with bigger megaphones than mine to do the same. Most of us in the Cocktailosphere have as our central agenda the general improvement of the craft cocktail industry and the celebration of the true creative personalities in it. (God knows our agenda isn’t getting rich at it!) For the much larger number of folks actually in the bar industry, you are asking them to think about the right things.

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  • Does anyone remember the dot com boom and bust. Driven by a incorrect sense of property and rights. The money made it all happen. Doug has the number rung up correctly. Work harder to build an industry that has the money in it and you can worry about these things, but be careful what you ask for.

    Thanks Doug!!

    Jason

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