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.”
Well, except for chefs. You have the exact same protection as chefs…
…oh, and cookbook authors. You have the same protections as they do.
In fact, bartenders (or mixologists, or whatever they are calling themselves today) have the same exact protections as anyone else who creates recipes, formulas, compounds, or prescriptions. Do you know why?
Because recipes, formulas, compounds, or prescriptions are not covered by copyright law. Period. End of sentence. it’s all spelled out in Form Letter 122 from the U.S. Government Copyright office:
Mere listings of ingredients as in recipes, formulas, compounds, or prescriptions are not subject to copyright protection. However, when a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a combination of recipes, as in a cookbook, there may be a basis for copyright protection.
The key phrase there is “substantial literary expression”. Let me explain how this works…again.
I like peanut butter and jelly sandwiches, as they bring a bright smile to my face. They are especially good with a cold glass of milk.
- 2 slices of white bread
- 3 Tablespoons peanut butter
- 2 Tablespoons strawberry Jelly
With a knife, spread the peanut butter on one slice of bread. With the same knife, spread the jelly on the other side of bread. Press together the two slices of bread, with the peanut butter and jelly facing each other.
Here’s the deal. Part I is under copyright. An entity cannot reproduce Part I (even as bad as it is) without attribution.
Part II is not protected by copyright. Period. Underline three times.
Part III is where it gets a bit iffy. In the case of the above, Part III is most likely not sheltered by copyright. There’s not much in the form of literary expression. Instead, it’s essentially a formula that uses the list of ingredients. Such formulas are not covered by copyright.
If there was a fair amount of prose interspersed within the formula, then it can be protected by copyright. If Part III was dressed up with memories of making the sandwiches, and tied together with a personal anecdote or two then no one could legally use it without permission.
However, if someone were to extract that literary expression from the formula/process, and leave the bare bones instructions on how to make the peanut butter sandwich, there’s little I can do about that.
This format is true whether your listing the components for tempering metals, to creating the best Irish Coffee known to man. It cannot be copyrighted.
While I respect the desire for people to make a buck or two on their work, sentiments such as this:
A communal spirit may foster creativity, (Freeman) said, but guarding the provenance of ideas enforces integrity.
…do more to inhibit progress of any given industry rather than further it. “Guarding the provenance of ideas” does nothing more than restrict access to said ideas.
Unless of course, you’re willing to pay for it. In which case, recipes, formulas, compounds, or prescriptions would only be accessible to those wealthy enough to afford it.