Fast Company
Bartending thrives on creativity and collaboration, but who owns the rights to a cocktail is a delicate balance of legal precedent, at-will and contract employment, and professional courtesy.
There are plenty of reasons for bars to be closed down. Health-code violations, serving underage drinkers, illegal operating hours, and more. But being sued over the name of a drink? That was the unusual dilemma faced by one New York City bar in 2011. The newly opened tiki-themed bar, Painkiller, was issued a cease-and-desist order by Pusser’s Rum, which claimed that its trademark on the Painkiller cocktail prevented the bar from using its name. Since then, the intricacies of legal ownership of popular and bespoke cocktails have continued to plague the industry.
Bartending is a trade that thrives on creativity and collaboration, but that sometimes comes at a cost. Determining who owns the rights to what parts of a cocktail is a delicate balance of legal precedent, at-will and contract employment, and professional courtesy.
As far as what constitutes legal precedent, intellectual property lawyer Jake Grove says that it boils down to four legal categories: patent, trade secret, trademark, and copyright.
PATENTING A PROCESS BUT NOT A PRODUCT
Copyright is a simple enough concept: a recipe can be copyrighted, but there are few if any legal penalties for selling a drink made from that recipe. A trademark might apply to a single-named drink with specific ingredients: Pusser’s Painkiller, for example. Other companies have tried with limited success to enforce trademarks on their own creations. In 2014, Gosling’s Rum sued liquor conglomerate Pernod Ricard for suggesting that a Dark n’ Stormy be made with Malibu Island Spiced Rum rather than the rum that Gosling’s used in a recipe trademarked in 1991. Patents apply to a process rather than a product and last 20 years. A machine designed to shake the infamously laborious Ramos Gin Fizz was patented in 1899 and is little changed, if a lot more rare, in recent incarnations. A trade secret ruling might apply, says Grove, if there are secret ingredients or processes known only to the drink’s creator.
FULL-TIME EMPLOYMENT VERSUS CONSULTING
Further complicating these distinctions is the issue of what type of employment the bartender in question agreed to. If a bartender is hired full time at one bar, it’s to be expected as part of their work performance that they would create new drinks. If one is hired as a consultant, a practice common in new high-end cocktail bars establishing a new menu, that consultant might have more rights to the drinks, and could even take them with them to the next gig.
One legal precedent that might be applicable, says Grove, went all the way to the Supreme Court in 1989. A community-activist group, Community for Creative Non-Violence, hired artist James Earl Reid to create a sculpture that the group would display. When both the artist and the activist group filed for copyrights on the sculpture, the concept of whether the piece was a “work made for hire” or whether he had been working as an independent contractor came into play. Ultimately, the Court ruled that Reid acted as an independent contractor, and a subsequent agreement between the parties stated that Reid owned the rights to three-dimensional copies of the work, while CCNV owned the original.
WHO KEEPS THE NAME WHEN THE BAND BREAKS UP?
Grove uses a familiar metaphor to explain what the schism between former coworkers might look like. “When a band breaks up,” he says, the disagreement is often centered on who has the right “to use the name of the band going forward.” We’ll call it The Who metaphor: “Sometimes they break up; sometimes they tour as The Who, even though original band members are dead. Is it still the music of The Who if Keith Moon is gone and John Entwistle is gone?” Ultimately, he says, “the whole point is to avoid confusion so the consumers aren’t bamboozled when they go to make their choice and pay their money for the experience.”
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