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

Enlarge / Welcome to the conference, this is the 10am panel. Can we interest you in a Dark ‘n’ Stormy®? (credit: Nathan Mattise)

NEW ORLEANS—Anyone who fancies themselves a fan of cocktails knows the names: the Manhattan, Old Fashioned, Martini, Margarita, on and on and on. In the drinks world, such recipes have stood the test of time and grown into industry icons over decades. But unlike similar cultural colossuses elsewhere—from Mickey Mouse on screen or “Hey Jude” in the stereo—you can find the Negroni being deployed freely at virtually every bar in America. What gives?

“Can you copyright and own a recipe? A recipe in the eyes of the law doesn’t have that creative spark,” says attorney Andrea Mealey, an intellectual property expert who’s done legal work for beverage companies like Gosling’s Rum. During a panel on IP in the bar industry at the 2019 Tales of the Cocktail (TOTC) conference, she next points at the ceiling in this conference room. “The design of that chandelier—someone had to come up with it. It’s creative, and you can own copyright on that design. I can do a slightly different design and own that as well. But a recipe is like a phone book in the eyes of the law—you can’t own something so factual.”

In the modern drinks world, Mealey not-so-subtly implies copyright may be the most useless legal tool for enterprising bartenders. (You could at least patent some amazing new tool, in theory.) It’s a not-so-dirty secret that many have increasingly become aware of in this modern cocktail renaissance, where a killer recipe at an influential bar can suddenly show up on menus worldwide with little more than a written credit. The US Copyright Office puts it plainly: “A mere listing of ingredients or contents, or a simple set of directions, is uncopyrightable.”