Intellectual Drink Property

Sue the Bartender

As the high-end cocktail craze continues to gain momentum and bartenders become possessive about their creations, could we soon see copyright-protected cocktails? In August on the Atlantic website, food writer Chantal Martineau described a lecture given at the annual Tales of the Cocktail convention in New Orleans in which intellectual property experts discussed the possibility of copyrighting drinks.

Eben Freeman, the innovative bartender who says he invented "fatwashing," the process that brought drinkers the likes of bacon-flavored bourbon, complained that he's not getting proper credit for his creations. "Someone needs to get sued," he told Martineau.

Under current law, published recipes can be copyrighted, but drinks and foods themselves cannot. In other words, you can sue someone if he republishes your cookbook without permission, but not if he uses it to prepare a dish. Restaurants and food manufacturers closely guard secret ingredients and recipes, and employees can be sued for violating nondisclosure agreements, but there's no remedy for McDonald's if Burger King manages to decode its special sauce.

Nonetheless, creativity and innovation flourish in both the food industry and the cocktail scene. There may be a lesson there for other areas of intellectual property law.