In many ways, bartending is unique from other more conventional career choices. You spend long hours assembling mixtures of arcane liquids while carrying on conversations with total strangers. It’s a singular set of demands that attracts someone who wouldn’t be caught dead in a desk job.
But in some ways, our industry is just like any other in that it relies on a healthy exchange of ideas. In the tech world, those ideas are fiercely guarded and protected by patents, copyrights and NDAs, while the nonprofit community shares data and insights as a matter of course.
The bar industry falls somewhere between the two. More often than not, recipes and expertise flow as freely as South Sides on a Friday night. But often, a bartender’s rise to the top is based on his or her ability to create delicious innovative drinks or design thoughtful bar spaces. The most successful among us have the best ideas first and sell them to the highest bidder.
But what happens once those ideas are out there? There is no law preventing anyone from using someone else’s recipes. Eben Freeman, the bartender known for pioneering the now-ubiquitous fat-washing technique, had this to say in a 2010 article in “The Atlantic”: “In no other creative business can you so easily identify money attached to your creative property. ... There is an implied commerce to our intellectual property. Yet we have less protection than anyone else.”
Recipes, along with instructions, facts and formulas, are considered “useful items” and are not covered under U.S. copyright and patent law. If I read someone else’s recipe in a book, copy it and sell it to clients or include it in a book of my own, that’s perfectly legal.
Etiquette dictates that I should credit the recipe’s originator, but there’s nothing anyone can do about it if I don’t, except maybe call me an asshole on Twitter.
To find out why our industry isn’t more litigious, I reached out to a few hospitality industry lawyers for answers, and they all said the same thing: Bartenders generally don’t have the budget for legal fees, especially when the stakes are so low and it’s so difficult to prove financial injury.
But what if you could? To explore what happens in two very common scenarios involving intellectual property disputes in bars, I spoke with industry professionals.
Scenario: A Business Venture Between Two People Goes Under
On condition of anonymity due to ongoing litigation, I spoke with an East Coast bartender—let’s call him Chad—who was in the process of splitting the assets for a failed bar project. Together with his partner, they purchased inventory, décor and other physical items.
They also worked together to create the intellectual property of the venture: the bar’s name, its service philosophy, cocktail recipes, training manuals and so on. Chad wants to be bought out for his share of the intellectual property before his erstwhile partner uses it anywhere else. The problem is that much of this was not subject to any kind of legal agreement between the two parties.
In business, like in marriage, you’re committing to build something with another person and don’t want to consider the possibility that it will end poorly, let alone plan for that outcome. People avoid prenups for fear of making the marriage appear too transactional. But starting a business with someone else is first and foremost a transaction, even if it’s one you and your buddy dreamed up over drinks one night.
Scenario: Someone “Steals” a Recipe from You
Most bartenders I know are honored when their peers use one of their creations on their menu, especially with attribution. But what happens when someone copies your drink and claims it as their own?
After a few heartbreaking experiences with former colleagues or industry acquaintances “totally ripping off” her recipes and ideas, Los Angeles bartender Gabriella Mlynarczyk says she now guards her recipes with tight contracts and NDAs. When engaging with a client, she has even paid a licensing fee based on a percentage of sales. Meaning, once the contract is terminated, the client no longer has the right to use her recipes.
Mlynarczyk’s approach may seem extreme, but perhaps it’s a glimpse into where the industry is moving. Today, bartending feels less like a job and more like a chosen profession. (Rarely are we asked anymore what we really want to do with our lives.) Careers are made and broken based on our ability to deliver creative, innovative cocktails and fresh ideas.
Shouldn’t we protect that which is most valuable to us? Isn’t it time to grow up?