You can’t copyright a cocktail, so what’s a creative bartender to do? (2019) | Hacker News Reader

You can’t copyright a cocktail, so what’s a creative bartender to do? (2019)

arstechnica.com

30 pointsTomte59 comments

You can't copyright cocktails or other recipes because copyright only protects the artistic expression, not the mechanical process.

Cocktails could conceivably be patentable, if they were sufficiently novel and non-obvious, which very few cocktails are likely to be.

If you used a sufficiently visually distinctive glass and created a fanciful name, you might be eligible for trademark protection -- that wouldn't stop someone making the same cocktail, but would prevent them using your identical glassware and name in a way that might lead to confusion that the cocktail was approved by you.

Oh! And if you choreographed an interesting process of making the drink, with a specific sequence of unnecessary but distinctive motions (think "bartender dance"), you could copyright your performances of the dance act and possibly prevent others from stealing your show. The less elaborate your performance, the less protection you're likely to get, and copyright doesn't prevent, for example, parody.

But generally, intellectual property rights are not intended to vest in ordinary creations like mixed drinks.

Are collections copyrightable? Knowing that recipes aren't I've wondered before why (sufficiently popular to make it worthwhile) recipe books aren't a race to the bottom with cheaper clones.

The smart move of course (employed e.g. by Delia Smith) is to publish them for free online too. I own one of hers but for convenience sometimes check a recipe I've found in it on my phone, so far they've all been there so I think it's complete.

Cookbooks are copyrightable for a few reasons, to my understanding.

There's usually some creativity in their assemblage "The recipes of my family/time in $X country". It's generally not just slapping together 500 cookie recipes. There's photos, artwork, some kind of story being told about how/where/why.

The recipes themselves are usually more than just a list of ingredients, there's some originality in how the recipe is laid out, how to prepare it, and something else.

> The recipes themselves are usually more than just a list of ingredients, there's some originality in how the recipe is laid out, how to prepare it, and something else.

You can't copyright the "how to prepare it" part either.

If there's some level of creativity/originality in the preparation, then that is copyrightable.

I am pretty sure that'd be a patent. I suspect it'd be really hard to get an effective one on a coctail though. I know there's a bit more to it than adding the ingredients and mixing (or not), but there's not a _lot_ more to it than that.

I think you are confusing the raw facts of how to prepare it (generally not copyrightable), and any original creative aspects of the preparation instructions.

So, I might incorporate into the instructions about what advice my grandmother said about making it, and that might be copyrightable.

Relating it back to the original story: You can't copyright the cocktail, but you could copyright the performance of making it.

So the actual text is copyright, like any textbook, just not the same method paraphrased?

Seems fairly obvious put like that. I suppose it becomes less intuitive when the text is just a straight forward bullet point instruction, so one's not really different from the other.

No. The actual text is not copyrighted when it consists of instructions. You can copy the exact text of the recipe, cut out the parts that don't have to do with making the food, and you're fine.

But if you just add color to the instructions and copyright that, that won't really help you own the drink itself. You'd just own that one description of how to make it. Which is fine if that's the goal, but it doesn't seem like that's what anyone would usually be most interested in.

You can copyright the exact text making up your "how to prepare it" as long as it's considered suitably creative. But that doesn't protect someone from rewriting your recipe in their own words (or removing all prose and chopping it down to only the necessary factual statements).

Cookbooks themselves are generally copyright-able as a compilation work. The individual recipes aren't protected but the compilation as a whole is.

> A recipe can also be protected by copyright law if it creatively describes or explains the cooking or baking process connected to the list of ingredients. Even if the description of the recipe is sufficiently creative and copyrightable, the copyright will not cover the recipe’s ingredient list, the underlying process for making the dish, or the resulting dish itself, which are all facts. It will only protect the expression of those facts

>https://copyrightalliance.org/are-recipes-cookbooks-protecte...

Data is typically not copyrightable. But the layout is. How you present it is.

> As a general rule, the U.S. Copyright Office does not accept vague claims of “format” and/or “layout.” The general layout or format of a book, a page, a slide presentation, a website, a webpage, a poster, a form, or the like, is not copyrightable because it is a template of expression. These terms should be avoided and, if used, will be questioned by the registration specialist.

https://www.copyright.gov/comp3/chap300/ch300-copyrightable-...

Example given in 906.5 (separate pdf, but linked from the above):

> Fred Foster publishes a one-page newsletter titled Condo Living that provides information for residents of his condominium complex. Each issue contains the name of the newsletter, a drawing of the sun rising over the complex, two columns reserved for text, and a box underneath the columns reserved for photographs. Fred attempts to register the layout for his newsletter. The registration specialist will reject the claim in layout, but may register the illustration if it is sufficiently creative.

Debatable in part.

Law case books, reporting court cases, with particular page numbering (formatting in your terms), do not amount to a defensible copyright, so the West Publishing Companies case numbering citations do not amount to a defensible copyright claim, and those page numbering citations can be freely used by other publications.

Your best bet is to keep the ingredients secret. But like with all things, the Simpsons already did it:

https://en.m.wikipedia.org/wiki/Flaming_Moe%27s

I understand you can copyright the name, so other people could still copy the drink but with another name.

That's trademark.

How is a recipe fundamentally different than a program?

It exists under a more sensible copyright regime.

Complexity and creativity are important aspects of copyright. An obvious and simple piece of code likely won’t qualify for copyright protection either.

    function add (int x, int y) { return x+y; }

is probably ineligible

indeed, it's a sore spot for patentability too. It's been argued that if the program is math and the math can be done by paper and pencil, then it's too abstract for a patent, which are meant for machines and processes. But compression algorithms have received patents, and could be done by pencil and paper by a determined student... it's a bit like porn I suppose, "know it when I see it"

> These cases are difficult to apply in practice because, as Chief Judge Randall Rader lamented in Accenture, "No one understands what makes an idea abstract."[7] The court's analyses and disagreements can be more easily understood, however, by focusing on the "mental steps doctrine," which is a subcategory of abstract ideas. In this rubric, purely mental processes are not patentable, and consequently methods that can be performed by a person with a pencil and paper cannot be patented. The recent Federal Circuit decisions are consistent with the mental steps doctrine, and even sometimes allude to it, but they do not rely on it.

https://www.hansonbridgett.com/-/media/Files/Publications/me...

> You can't copyright cocktails or other recipes because copyright only protects the artistic expression, not the mechanical process.

It's interesting that you can copyright a song (not just a performance of it, but the actual song) or a dance, but not a cocktail recipe. In all cases they're essentially a set of instructions for making something enjoyable to the senses.

A musical performance is copyrightable because it’s an artistic expression of the actual musical instructions (sheet music).[a] It’s why Beethoven isn’t copyrighted (despite many ContentID claims), but performances of Beethoven’s works are.

Choreography instructions are also likely uncopyrightable, but the performances of one would be.

Since recipes are just instructions, they’re not copyrightable.

In short, if it’s data/instructions, it’s likely not copyrightable. But the act of using said data, however, if done “creatively,” is. That distinction is very murky though, and there’s over a century of case law to go with it.

[a]: EDIT: I was wrong, sheet music is copyrightable. Beethoven is just out of copyright.

But sheet music is copyrightable, and it's a set of instructions isn't it?

Yes, like a novel, but the sound of a note isn't.

Beethoven's compositions are in the public domain because he died before Mickey Mouse first appeared on screen, but specific copies of his works may still be covered by the editor's copyright.

For the benefit of non-musicians: Editors, especially of older works, routinely correct mistakes (and sometimes disagree about whether the composer made a mistake!) and depending on how verbose the composer was may add their own indications of speed and volume; in some cases you get instrument-specific annotations as well, e.g. fingerings and bowings in violin parts. The Bach solo violin partitas are immediately recognizable as the Bach solo violin partitas no matter who edited them, but if you're familiar with the editions you can definitely tell which one a violinist learned!

Choreography sequences are potentially copyrightable outside of an individual performance, though there's a lot of grey area. https://www.legalzoom.com/articles/how-to-copyright-a-dance

>A musical performance is copyrightable

A recording of a musical performance is copyrightable. But I believe the copyright would belong to whoever made the recording, not the performing musicians (assuming the work being performed is public domain, like Beethoven)

> Choreography instructions are also likely uncopyrightable, but the performances of one would be.

As far as I know, this is almost exactly wrong. Choreography instructions may be copyrightable. A performance of a dance is not subject to copyright, but a video recording of that performance may be.

> To qualify for registration, a choreographic work or pantomime must be fixed in a tangible medium of expression [1]

[1] https://www.copyright.gov/circs/circ52.pdf

Cocktails are really better suited as trade secrets, just as Coca-Cola doesn't have a patent that would give insight to competitors. If a bartender wants to protect their cocktail, it had better be novel in the first place, and the ingredients should be kept vague (eg. don't specify the brand of whisky).

Seems like a waste of energy to consider, though. The drink quality and the experience is more important than the novelty of a drink.

> The drink quality and the experience is more important than the novelty of a drink.

Good point about the experience being about far more than the recipe/drink quality. One can prove this simply by drinking great wine out of a wine glass and a mug or plastic cup.

Yeah, "the best martini in town" is unlikely to be based on a trade secret. People expect a gin taste, so it's probably the quality of the ingredients, the presentation, and the experience, as you said.

There are certainly some unusual liqueurs that an average bar wouldn't stock, so if you manage to find one that people go nuts over, you should probably keep that as a trade secret.

What am I missing? This is easy.

You're a bartender with a recipe you want to keep a secret, so you put black paper over the bottles so people can't see what they are.

Or you keep the ingredients somewhere the customers can't see, and mix it there.

Plus give it a one-off name, like "Freddie's Secret Likker" and copyright that.

If you want it to be a trade secret like Coca-Cola, you have some manufacturer make an ingredient just for you, and keep their identity secret. Also buy all their output and swear them to secrecy.

> What am I missing? This is easy.

I'm curious. How often do you go out to the fancy cocktail bars ($20+ per drink)?

> keep the ingredients somewhere the customers can't see

How do Coca-Cola get around having to list all ingredients when they sell a bottled product? They just list 'flavourings' don't they - what if you're allergic to one of the anonymous ingredients? Are they just not allergens?

I guess a cocktail bar also has extra protection in that I think non-retail food and drinks don't have to list ingredients anyway.

> How do Coca-Cola get around having to list all ingredients when they sell a bottled product?

Lobbying, I guess? Regulatory capture?

I believe the real answer is that they probably do list all the ingredients on the label, because the reason why Coke makes so much money only is only partially because of the ingredients. The real secret is the exact weights of ingredients, production methods, and branding.

In fact if my memory serves me correctly, an insider did in fact offer to sell the secret formula to Pepsi, who promptly reported it to Coke. After all, even if Pepsi did get the exact formula and reproduced it - they don't sell Coke, they sell Pepsi, and their market (presumably) prefers the taste of Pepsi to Coke, so changing the taste doesn't make much sense.

Incorrect go look at a label.

> they probably do list all the ingredients on the label

I mean look at the label and you can see this isn’t the case.

Certain ingredients can be listed as a "collective". See section (b) of FDA: CFR - Code of Federal Regulations Title 21 https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfcfr/cfr...

> How do Coca-Cola get around having to list all ingredients when they sell a bottled product? They just list 'flavourings' don't they

Per the FDA[1], "some ingredients can be listed collectively as "flavors," "spices," "artificial flavoring," or in the case of color additives exempt from certification, "artificial colors", without naming each one. Declaration of an allergenic ingredient in a collective or single color, flavor, or spice could be accomplished by simply naming the allergenic ingredient in the ingredient list."

> what if you're allergic to one of the anonymous ingredients? Are they just not allergens?

Basically the only regulated allergens in the US are[2] milk, eggs, fish, Crustacean shellfish, tree nuts, peanuts, wheat, and soybeans

[1] https://www.fda.gov/food/food-ingredients-packaging/overview...

[2] https://www.fda.gov/food/food-allergensgluten-free-guidance-...

There was an answer on Quora about this. You could look it up, but from memory:

There's one ingredient (I think it's cola syrup but I could be wrong) which you can only get from one supplier, and Coke buys all of it.

Coca Cola is the only authorized importer of the Coca leaf to USA. They have it shipped to New Jersey where it is decocainized. Coca-Cola gets their coca leaf flavoring, and the cocaine is distributed for medical use.

(the cola half is the kola nut for caffeine)

> Plus give it a one-off name, like "Freddie's Secret Likker" and copyright that.

Trademark, I think.

right, sorry.

Nothing to apologize for:)

Yep. But if it were me I would forget about the trademark and just make sure that everyone who is In The Know is aware that I am Freddie, the Likker is mine, and I haven’t told anybody else the Secret of its manufacture. What could possibly bring me more hipster cred? What could get more people to make pilgrimages to Freddie’s Bar?

It's not very difficult to reverse-engineer most cocktails that have 3-4 ingredients in them, especially if any of the ingredients are visible as a garnish (e.g. herbs, citrus slices).

And even then, an inquisitive patron would be able to get the ingredient list by asking questions and/or claiming to have allergies. It would be strange and potentially dangerous for the bartender to without knowledge of the ingredients.

The bottom line is that anyone who really wants to steal a cocktail recipe is going to be able to.

You only have to do that for one ingredient. You make a spice/liquor concoction, put it in a random bottle, and you’re good.

This is the exact method by which many classic Tiki cocktails were kept secret and therefore nearly lost to time. For example the original recipe for the Zombie is disguised twice. It uses “Don’s Mix”, which is made with grapefruit juice and “Spices #4”. It took a very dedicated historian, Beachbum Berry, to track down the real recipe: https://beachbumberry.com/recipe-zombie.html

what a cool website, thanks for that

>You can’t copyright a cocktail, so what’s a creative bartender to do?

Be thankful, you wouldn't be a creative bartender making cocktails if they were.

Some background reading about copyright and recipes.

=-=-=-=-

Based on this reasoning, the United States Copyright Office Compendium, the Office’s manual for examiners, states that a mere listing of ingredients or contents is not copyrightable, as lists are not protected by copyright law (chapter 314.4(F)). The Office has also stated that a “simple set of directions” is uncopyrightable.

In addition, courts have found that recipes are wholly factual and functional, and therefore uncopyrightable. As the Sixth Circuit described in Tomaydo-Tomahdo, LLC v. Vozary, “the list of ingredients is merely a factual statement, and as previously discussed, facts are not copyrightable. Furthermore, a recipe’s instructions, as functional directions, are statutorily excluded from copyright protection.”

https://copyrightalliance.org/are-recipes-cookbooks-protecte...

Just do what academics do and name the cocktail after yourself.

If you're worried about making money, having the name will almost certainly make you/your bar much more popular and bring in business.

This is actually a good thing for bartenders (and their customers).

Imagine being a bartender and being told a list of drinks you weren’t allowed to make because the bar you worked for didn’t have a license for them.

Or being a customer and having the bartender say, “Sorry, we know that drink is popular, but they hiked up their licensing cost this year and we were weren’t able to license it. We have all the ingredients and our bartenders know how to make it, but we just don’t have the license.”

It can get kind of confusing though. Consider the Navy Grog, a classic Tiki cocktail. The Trader Vic’s recipe is very different than the original Donn the Beachcomber version. This is because the recipe was secret and so all other attempts at it were basically guesses.

Of course we all learned from The Simpsons that this was a non-issue because the Flaming Moe had a secret ingredient that made it uncopyable.

There are certainly some patent applications in that space. I don't know if any cover a specific drink, but you can look through them [1] and let us know:

[1] https://patents.google.com/?q=cocktail+recipe&oq=cocktail+re...

This just conclusively proves rounded corners or slide to unlock is more novel than the most original cocktail in the world.

what the bartender can do?

Sell it with a smile! (And enjoy to not bother with lawsuits)

Reply on news.ycombinator.com