The Chanticleer Society
A Worldwide Organization of Cocktail Enthusiasts

so who 'owns' a cocktail?

rated by 0 users
Not Answered This post has 0 verified answers | 12 Replies | 9 Followers

Top 500 Contributor
Male
6 Posts
Dan Priseman posted on 3 Jun 2009 8:51 AM

I am working on a project at the moment which involves creating a database of cocktails and I have been trying to establish rules or guidelines for adding drinks to this database that have been created by or included in books by bartenders, gurus and the great and the good of our industry.

 

I have always considered it simple good manners to credit people for their creations (where you can uncover who really created what of course...) and where possible to ask permission before taking action, but there are issues that go beyond this that I have had to start considering. One of these issues is that if someone goes to the effort of producing a cocktail book it would hardly be fair to then put all their recipes online on a database free for the world to see.

 

The goal of my project is to help educate consumers about spirits and cocktails and in an ideal world create some better communication between the trade and the public. As such the database that I am working on is a chance for bartenders to promote themselves to an interested public and for those who have published cocktail books to see some of their recipes featured and their book promoted too.

 

As far as I can tell once a cocktail is made it is in the public domain and free for others to reproduce, add to their drinks list or add to their database. I just wondered if anyone has any further insights into this or has information that contradicts what I have found.

 

To be honest it is not a huge issue right now, as I have had many people willing to let me add their drinks in exchange for creditting them and/or the book it was recorded in, but it would be good to have a definitive answer or at least some thoughts on the subject.

 

By the way - if any of you have drinks that you have created that you are proud of and would consider having them added to my database (you will be credited in full) please drop me a line.

All Replies

Top 10 Contributor
Male
1,117 Posts

Basically correct. In and of themselves "recipes" can't be copyrighted or protected (beyond simply keeping them secret). If somebody publishes a recipe in a book, online, or any other source, it is fair game for any and all to reproduce it any way they see fit.

However...

The "name" can be registered as a trademark (as in "Hand grenade" http://www.tropicalisle.com/shop/oneandonly.html). Tropical Isle regularly tries to find sites which are publishing a recipe listed as "Hand Grenade" and sending them a cease and desist order, which they can do. However simply changing the name to "Small Bomb #2" (http://www.webtender.com/db/drink/3164) or similar, is all that is necessary. The recipe can still "be" the exact recipe for the Hand Grenade.

And any "prose" associated with the recipe is also considered as copyrightable. This isn't the "directions", but the personal writeup associated with the drink that the author has penned themselves to add a little color. For example, take my "Old Fashioned" recipe (http://www.drinkboy.com/Cocktails/Recipe.aspx?itemid=121) Anything within the "recipe box" on the page is free game, but the general writeup I provide outside of that is protected by copyright.

Top 25 Contributor
Male
155 Posts

I did a lot of research on this a few years back... I will see if I can find the article.

Oddly tho if you invent a cocktail in a bar and while being paid by someone for your time (ie working) then they "own" the drink was what I was advised...

here it is (it is nearly 9 years old tho)

 

One of the joys of this column is that I can choose what I want to write about – anything that takes my fancy or that people suggest. I can research it, ask many different people about it, seek professional guidance over it and then pass it off as the result of my own mind. This is a nifty way of illustrating and introducing this months piece, namely the idea of Cocktails and Copyright. Who ‘owns’ the right to  a cocktail and its recipe? If you invent a wonderful new drink (and as 250 bottles makes 17bn combinations there are probably a few still out there) then who gets the glory – you as the ‘inventor’, the bar who you work for or the brands involved?

            This is a topic which I have been  intimately involved in recently. If you read my Cocktail Spirit piece (pages XX to XX) then you will see that Tony from Isola would not give me his recipe for Alistair Crowley’s Absinthe drink. I recently did a Tiki Cocktails talk at Bar01 and found that the originators of both the genre and the drinks themselves are mainly unknown as the inventors went to great length to keep the recipes secret to prevent imitators – recipes in code poured from unmarked bottles etc.. Also I keep seeing Flaming Blue Lamborghinis on lists bit have currently collected 7 completely different recipes with fire and blue curacao being the only constant. And as I traverse the country searching out the great and the good I find drinks (or at least the names) that I know were invented in London by specific bartenders who were then amazed to hear of them appearing elsewhere. As this industry becomes more controlled and commodified so the issue becomes more relevant.

            I first took legal advice on the matter (a phrase destined to strike fear into most people’s hearts). Luckily I had a most excellent resource in Meena Sayal, a sharp young Intellectual Property lawyer for Guinness UDV with a taste for Tanqueray Caiprinhias. Over a few of these she explained some basics.

  • Copyright is the right to stop other people copying a written or artistic work, (things protected by copyright include written materials, photographs, films, sound recording and drawings).  In most countries, it is not an automatic monopoly: if somebody produces an identical work without having copied yours, there is no infringement of copyright.
  • A Trade Mark is a sign, which identifies and distinguishes a particular brand of a product from another brand.  Signs such as words, letters, numbers, slogans, designs, logos etc.
  • A Patent is a registered Intellectual Property right which protects inventions.  These may be products e.g.: the Sheridans decanting system or the plastic ‘widget’ in canned beer, or a process such as the ‘ice’ beer brewing process.  The invention has to be innovative i.e.: new but may include an improvement to an existing idea.

What this all means practically is you could trademark the name of your drink, copyright the exact recipe and patent any piece of kit you invented to make it. In the real world however any chance of you winning a case would be so expensive that only the lawyers would benefit.

I pointed out the 1936 case of the Bacardi Cocktail where the Bacardi family got an injunction from the New York Supreme Court banning bartenders from making it with any rum other than Bacardi but Meena found another case where Bacardi took a rum called El Daiquiri to court in this country claiming that the name made bartenders think that a Daiquiri had to be made using El Daiquiri whereas most decent bartenders would have traditionally reached for Bacardi – they won when the legal costs escalated but it did get as far as the House Of Lords.

Her view (and lets not forget that lawyers frequently are convinced of their position right up until they lose, and the appeal process means that they still won’t admit they are wrong) is that if you invent a wonderful drink in your bar, using specific brands, that the ‘ownership’ legally lies with the bar owner who was paying you and whose tools you were using but that again it would be an expensive thing to prove.

Somewhat confused by this point (they are good those Tanqueray Caiprinhias) I sought out the most copied bartender around, one Dick Bradsell. I asked him that as he had invented several  popular drinks which had ‘travelled’ did he mind. “Of course not” as this meant that people knew about them and his job was sharing joy and if he could do that via the Bramble, even when he didn’t make, it then he was even happier. When I pushed him that bars were making drinks called Brambles that were not the same recipe as his he thought that they had invented a new drink and they should give it a  proud new name rather than copy his – but in  a nice way. If he wanted to get bolshy about it he would not resort to lawyers but instead the press (such as Flavour of the Evening Standard) to name and shame. He was flattered that his drinks should be so widely copied and is happy to share the correct recipes if asked – otherwise when he moves on his drinks will be lost and who knows how many great drinks have been similarly lost. Drinks like the Ramos Gin Fizz were kept secret for over 25 years but thank god the recipe is now well known.

      In a nutshell the general consensus is this: whether you invent or copy be open about it. Find out the original recipe and stick to it if you use the name or change the name if you change the recipe. The website www. Cocktailright.com will make you a lovely certificate with your recipe on it with official looking seal but is legally null and void (but really pretty and looks great on the wall). If you want people to come to your bar for your drinks then don’t publish the recipe but if it gets out don’t even think about lawyers – unless they like a good drink!

Top 500 Contributor
5 Posts

Hi Angus,

I have a few drinks that I would like to register. What address should I email you on?

Top 10 Contributor
Male
1,117 Posts

Here is what the US Copyright Office has to say (emphasis mine):

http://www.copyright.gov/help/faq/faq-protect.html
How do I protect my recipe?
A mere listing of ingredients is not protected under copyright law. However, where a recipe or formula is accompanied by substantial literary expression in the form of an explanation or directions, or when there is a collection of recipes as in a cookbook, there may be a basis for copyright protection. Note that if you have secret ingredients to a recipe that you do not wish to be revealed, you should not submit your recipe for registration, because applications and deposit copies are public records.

...which also has this to say, which I found exceedingly interesting:

How do I protect my sighting of Elvis?
Copyright law does not protect sightings. However, copyright law will protect your photo (or other depiction) of your sighting of Elvis. File your claim to copyright online by means of the electronic Copyright Office (eCO). Pay the fee online and attach a copy of your photo. Or, go to the Copyright Office website, fill in Form CO, print it, and mail it together with your photo and fee. For more information on registration a copyright, see SL-35. No one can lawfully use your photo of your sighting, although someone else may file his own photo of his sighting. Copyright law protects the original photograph, not the subject of the photograph.

-Robert

Top 10 Contributor
Male
197 Posts

 

Nice article Angus!

I just wanted to add something.

 

I'm a product designer and copy right issues are a very common topic of discussions in this area. In most cases what you said about:

"if you invent a cocktail in a bar and while being paid by someone for your time (ie working) then they "own" the drink was what I was advised..."

Is really right.

 

In most cases of paid jobs that include intellectual property, creation of products etc. this is quite true. If a designer (or a bartender or anyone else for this matter) creates something that they are being paid to do, the person who pays them have the legal right for the creations. (Unless a contract says otherwise).

Even worse, let say you are being paid to work on a design firm (or bars), and also work on  personal projects. If you happened to use any of you employer´s resources (tool, your time while at work, your work´s computer, machinery etc.) the employer might be able to take the intellectual property right from you (if they really want to).

In other terms, if you create a great drink, but strained it with your work´s strainer, they might be able to fight you for the rights on that drink even though you never served it at their bar or used their ingredients.

I don't really think this type of fight would really happen on the world of bartending now a days. As you said it costs lots to get in a fight like this and most bar owner and bartenders should really this be serious on the subject. The easiest and cheapest way to protect a recipe really would be: don't reveal it as it happened on the Tiki time.

As Robert mentioned:

If you patent a formula you have to submit its recipe to a public domain database. After some time (depending on the country) this formula is in public domain and anyone can use it. And even before this time it can be used to "inspire" someone else´s creations with the right changes on the formula. This is way you won't see many medicines and liqueur formulas been patented. If they don't know how it´s made it´s pretty difficult to find out the formula. That´s way you won't find a patent for Coca cola. :-> In the other hand, you could patent a specific process used to produce coke that make it impossible to reproduce it´s taste without it. This way you protect you product without revealing the formula. :->  (did you know that the sound of a Harley Davidson is patented so people can't copy their motor?)

 

In the end I have to agree with you on the coping point in the end of the article and also to Dick point of view. I´m in favor of revealing recipes of cocktails. Too many great drinks wouldn't be around if it wasn´t for cocktail researches and historians, it´s a shame to hear about any recipes that were carried to the grave with their creators. In the other hand if you use someone's recipe credit the creator/researcher for uncovering or creating that recipe. And always ask before you mention someone else´s creations on publications, if they say no, respect that.

Cheers,

Tony

 

 

Top 500 Contributor
Male
6 Posts

Thanks for the great information Robert and Angus, this is pretty much as I thought but it is good to see the information from other peoples research point of view.

 

I think as you both imply, the most important thing is to be open, honest and show respect. Give credit where it is due, ask permission if you can, and think about how you would feel if the shoe was on the other foot

 

by the way - anyone wanting to submit a recipe, just e-mail me with the recipe, method, your name and the year it was invented and I will load it onto the database and notify you when the site goes live! dan@bittersandtwisted.com

 

Cheers

Dan

 

 

Top 10 Contributor
409 Posts

Lots of good stuff here that's all pretty consistent with my experience compiling recipe databases (and I've done few).

I'd add that a lot of worry goes into the topic of "copyright" because of fear, uncertainty and doubt about the spirit and practicalities of the law—the legal boogie man factor. What tends to fall by the wayside are arguably more important in this context: attribution, acknowledgements, and integrity.

In the end, what may pain mixologists the most is when a drink they've created is misinterpreted and misrepresented. 

 

Top 25 Contributor
Male
110 Posts

This is something I've done a bit of thinking and discussing over the past few years at eGullet and elsewhere.  Insofar as American intellectual property law is concerned, this is the lowdown on recipes:

  • You cannot copyright a recipe or a list of ingredients.
  • You can only copyright the "distinctive language" that you used to write the instructions portion of the recipe.  But only if this is truly "distinctive" (which is usually isn't).
  • This means that anyone could simply rewrite your recipe instructions in their own words and there would be no copyright violation.
  • Theoretically you could patent the process for making the cocktail (e.g., "System and Method for Producing a Minnesota Backslap Cocktail").  Good luck with that.  
  • Oh, and even if you could convince the patent office to grant you a patent, it would take years and plenty of money and paper, and you could have to continue to pay the yearly patent registration fees, you would have to do the same exact thing in every country where you wanted the patent to be enforceable, and your exclusive right to the "invention" would expire after twenty years.
  • You can trademark your cocktail's name.  This has some promise, but keep in mind that applying for a trademark and maintaining exclusive rights to that trademark, etc. all cost a lot of money.  This isn't really meant to protect the formula of the cocktail so much as it is there to give you the right to prevent someone from making any money off of your brand.

From the standpoint of the writer, this means that there is effectively no law that prevents you from putting any cocktail names or recipes in your book or article.  Of course, someone who poaches a bunch of recipes without permission may find himself pretty unwelcome in all the best watering holes.

 

Ultimately, in my opinion, there are only  two paths you can take to protect your intellectual property with respect to cocktails you have developed:

  1. You can try to keep the formula secret.  Good luck with this.  Ultimately, if your drink is popular, people are going to try to reverse-engineer the drink, and the best case scenario for you is that they get the formula correct.
  2. Or, you can be extremely generous with giving out the recipes of your drinks, making sure that the correct recipes, correctly attributed to you, appear on web sites and in print and other media.  This is what Audrey Saunders does, for example.  There's nothing she can do to prevent people from putting her Old Cuban on their cocktail menu.  So the best she can do is (a) make sure that it's damn easy to figure out who invented the drink; and (b) make sure it's damn easy to figure out what the correct and original formula for the drink is.  That way no one can claim it as their own, and if someone gets a crap Old Cuban, they have an easy means for learning that it was the incorrect formula or execution that made the drink crap, not the drink recipe itself.

A good compromise is to keep the formulae reasonably "secret" when they first appear on your bar's menu (let's say 6 months) and then, if they're popular and people are asking, get the recipes out there via some kind of reasonably static media so there is a record.

This does not apply to a bar's "house formulae" for non-original cocktails.  There's no reason a bar can't keep secret their formula for a Margarita if they want to.

Another interesting exception is when a certain cocktail, or a certain bar's iteration of a classic cocktail, becomes so highly associated with a certain bar or a certain bartender that other bars and bartenders seem reluctant to put it on their menus or serve it at their bars.  I've always thought it was interesting that Pegu Club's popular adapted-for-reasonable-size iteration of Baker's amazingly delicious Jimmy Roosevelt cocktail doesn't seem to be served at any other bar.

Top 10 Contributor
409 Posts

To extend on my previous post…

1) Here's a link to the MLA citation style guide for culinary recipes; to my knowledge no such thing exists specifically for cocktail recipes, but I don't see why this model wouldn't suffice for many situations. 

2) Also, one interesting possibility for authenticating cocktail recipes in the digital domain is to cryptographically sign them in precisely the same manner that one can cryptographically sign an email. The point is not to encrypt the recipe itself, just to attach a digital signature that (A) verifiably could only have come from the author, and (B) is dependent on the text of the recipe so that adulteration of the recipe invalidates the signature. There's zero infrastructure or standard for doing this sort of thing, but it's well within the realm of technological possibility.

 

Not Ranked
1 Posts

Hi, i've created a cocktail and would like to add it to your database its called Pukka, the ingredients are:

PUKKA

Original Taboo

Archers

Vodka

Fresh Orange Juice

Blue Curacao

squeeze of lime.

Please let me know if you will be adding this, my email address is sian.spencer@yahoo.co.uk

 

Thanks!

Natasha Barrett

Top 50 Contributor
Male
74 Posts

Oldhall:

Hi, i've created a cocktail and would like to add it to your database its called Pukka, the ingredients are:

PUKKA

Original Taboo

Archers

Vodka

Fresh Orange Juice

Blue Curacao

squeeze of lime.

Please let me know if you will be adding this, my email address is sian.spencer@yahoo.co.uk

 

Thanks!

Natasha Barrett

Pukka Cocktail    Star out of StarStarStarStarStar

Natasha, I tried your cocktail, and it tasted really gross!   Stick out tongue  If I were you, I wouldn't try and promote it.

But then, you just listed ingredients and not a recipe, so I may have gotten the proportions a bit wrong.

And I din't have Original Taboo (what is that?), so I used Captain Morgan's Tattoo Rum.

And I didn't have Archers (what is that?), so I used Watermelon Pucker.

And I didn't have any fresh orange juice, so I used some old Sunny Delight that was hanging around in the fridge

But, other than that, I followed your instructions exactly.   Keep submitting recipes, and I'll keep trying them, and reviewing them.   Wink.

Top 500 Contributor
2 Posts

It's time for those have creations and wanted to have it patented.

Page 1 of 1 (13 items) | RSS
Copyright (c) 2008-2010, The Chanticleer Society
Powered by Community Server (Non-Commercial Edition), by Telligent Systems