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.”
For some bartenders, the debate over who gets rights to a creation is less academic and more lived. Craft-cocktail bartender and founder of New Cask NYC, Juan Castillo, has decided that he’s not necessarily willing to share his best drink creations for free. As a craft-cocktail bartender, he has found himself gradually holding back on some of his best ideas, saving them for a more personal—and profitable—occasion.
When Castillo created a few top-selling drinks for a bar and later left, the bar kept those drinks on the menu. That didn’t sit right with him. “Eventually, I realized that I had very good ideas that I may want to save for whenever I opened my own place,” he says. “It made me feel like I did something that was so nice, and the money is going in someone else’s pocket. So that may be a little bit more personal. I will still help creatively, but I decided to hide some of my stuff.”
Now, he takes a more moderate approach to sharing what might be considered trade secrets. “I will contribute with the recipes of the drinks, but I wouldn’t tell them the syrup recipe,” he says.
Castillo’s company makes infused syrups for bartenders as well as pre-batched cocktails in kegs, which he sells or includes with a lease of his keg system. When a client ends a contract with him, he offers to sell the recipe for $1,000 for the client to use. “They most times choose not to purchase the recipes, and they end up purchasing products from me instead, which is a little more convenient,” he says.
A matter of professional courtesy more than money
For many bartenders, it’s a matter of professional courtesy when interpreting another creator’s drink. Professional courtesy demands that if one bartender is re-creating another’s drink, they acknowledge that at least verbally when serving it. There’s no real legal precedence for this, though.
There’s also very little real-world precedent for what happens when a bartender takes another creator’s ideas or recipes and uses them. At the end of the day, says Grove, “we can talk about this from an intellectual standpoint, but in the real world, are people really going to be suing each other over this stuff? I don’t know. There may not be enough money to justify it.”
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