Megan Deschaine came up with the Disco Sour while working behind the bar at a popular Charleston, S.C., restaurant. The drink, a chameleonic riff on the Pisco Sour, was a runaway success, bringing customers in droves and national attention in the form of a New York Times profile. It was the sort of signature hit that boosts a young bartender’s career to the next level, and Deschaine enjoyed the ride. But when she learned, months later, that a retailer she’d never heard of was selling packaged Disco Sour mixology kits online using her name and a bastardized version of her original recipe, the ride got rockier.
“When I was looking into what sort of legal repercussions there could be [for the vendor], or protections for me, ultimately it came down to two unfortunate facts,” Deschaine recounts to me in a recent phone interview. They are the problems that have plagued bartenders since time immemorial: Cocktail recipes are typically the property of the businesses for which they’ve been created, and they are damn near indefensible as intellectual property.
“I felt violated, no other way to put it,” she says.
Deschaine’s episode unfolded prior to the recent mainstream rise of blockchain-enabled technologies like non-fungible tokens (NFTs). A central promise of NFTs is the transformation of intellectual property from intangible and amorphous to finite, traceable, and tradable; a central critique is that they are hyper-speculative assets and solutions in search of a problem. The matter at large is up for heated debate. But the case of the duplicated Disco Sour is one problem that NFTs will not solve any time soon, despite some optimism to the contrary.
“People are making money off NFTs for all sorts of things that don’t really make sense, so sure, bartenders can find a way to make some money at least in the short term from them,” says Brendan Palfreyman, an intellectual property attorney at Harris Beach who focuses on the beverage-alcohol business. “But I don’t think there’s an enforceable intellectual property right created.”
Here’s a closer look at the conundrum of cocktail copyrighting as it stands today, why NFTs aren’t poised to solve it tomorrow, and the enduring optimism some bartenders have for what the blockchain might be able to do for them the day after that.
The glass half full
As Deschaine learned, there are legitimate, near-intractable challenges to bartenders protecting and monetizing the drinks they create. And there are those in the cocktail crowd who see a bright future for blockchain-abetted drink creation. Saeed House is one of them. “I definitely feel like the metaverse will be here sooner than we know,” says the Los Angeles mixologist behind the NFT project CrypoCocktails. “And who doesn’t want to drink cocktails in the metaverse?”
After getting laid off at the start of the pandemic, House — who goes by “Hawk” in reference to his towering mohawk — began learning more about cryptocurrencies and NFTs, and thinking about ways that he could use those technologies to experiment and expand on his offline work as a beverage consultant and bartender. “It’s almost like doing a cocktail book with your signature recipes and whatnot,” he says, describing his early vision for the project that would become CrypoCocktails, a growing collection of drinks-oriented NFTs. The tokens, after all, can be tied to exclusive pieces of information — for example, the exact ratios and instructions required to build specialty cocktails. “This is a new starting point,” he says, “so why not start publishing recipes in the blockchain, you know?”
He’s not alone. “The authentication of recipes in lieu of legal patents for recipes is the most interesting thing [about NFTs], and how the cocktail community can employ that technology,” Quality Eats bar director Bryan Schneider told PUNCH in October 2021. “We’re at the tip of the iceberg on that.” And there could be a bunch of money in that iceberg. Earlier this year, the popular New York City restaurant sold an NFT of a specialty cocktail Schnieder created called Into the Ether for .75 ETH, or around $1,400 at the time. Quality Eats, with partner Angel’s Envy, donated the dough, and a stipulation in the token’s smart contract — basically, a code embedded in the asset that dictates parameters by which it is bought and sold — says that the restaurant will donate a 10 percent royalty from any future sales as well. (Quality Branded, the restaurant group that operates Quality Eats, did not respond to VinePair’s request for comment for this story.) In return, whoever buys the NFT will get access to its “exclusive blockchain-protected secret recipe,” and can order free real-life versions of the drink at Quality Eats’ New York locations.
If there’s enough consumer/investor thirst for crypto cocktails tied to IRL experiences to create secondary and tertiary demand for them, though, it has yet to materialize for Into the Ether. Unlike flashier, high-profile NFT projects, which often feature thousands of tokens and millions of dollars worth of trading volume, the asset has seen no action since being minted. The sole cocktail remains in the wallet of its original purchaser, and according to popular NFT marketplace OpenSea, no one has offered to buy it.
The conundrum of proper credit
It’s not hard to see why mixologists — many of whom have lamented their profession’s problem of ripped-off recipes and improperly assigned creative credit — see promise in an inalterable, publicly viewable ledger that shows everyone which bartender created what cocktail. Cocktail programs are vital to many restaurant concepts, but historically, the people responsible for creating the underlying beverages have only captured a sliver of the value they create — to say nothing of the credit.
“There are a handful of drinks where there’s no debate” about who created them, says Philip Greene, a trademark and internet attorney who has also written several cocktail histories. “But so many drinks, you just don’t know.”
This is a problem that NFT’d cocktails could solve in theory, or make worse in practice. Unlike packaged goods that are developed in centralized facilities and then distributed, drinks are developed by a decentralized network of mixologists, bar owners, hobbyists, and so on. Combine this fractured grassroots-up ecosystem with the iterative, interchangeable nature of cocktail creation — what legendary New York bartender Phil Ward coined the Mr. Potato Head method — and creative overlap is basically guaranteed. “Maybe it’s cynicism, but I have a hard time finding anything totally original,” says Deschaine, who notes that even though she came up with the Disco Sour, it could only exist because the Pisco Sour had existed before it. “There’s nothing new under the sun.”
And thus, the double-edged sword of NFTs as a means to establish creative credit: They can show the origin of intellectual property minted on the blockchain, but not whether the person who minted it was the one who actually created it.
“Who’s to say that my specific recipe wasn’t created in another country or another bar?” muses House. “We don’t know that, unless it’s on the internet already … there might be issues if that’s the case. But if it’s not, I feel like it can be like a first-come, first-serve situation.” This is true in a sense. The influx of money and attention to the Web3 ecosystem is often referred to as a digital “land rush,” with people hustling to buy up alternative assets that they hope will become more valuable later on. With the demand so high, the supply side has responded in kind. But a first-come, first-serve system elides the question of rightful intellectual property ownership as we conventionally understand it, empowering (and even encouraging) questionable behavior in the name of minting work on the blockchain before anyone else. In early February, a NFT startup called HitPiece stoked broad outrage for minting NFTs of popular songs without the consent of the musicians who created them. Artists threatened legal action and the site was quickly taken down.
Imagine a cocktail-oriented version of the HitPiece saga. Unlike popular songs that are easily traced back to their singers, the origins of classic drinks like the Martini or the Old Fashioned are legitimately murky. As to whether they ought to be minted as NFTs at all, of course, is another question, and for plenty of cocktail aficionados and bartenders who revel in mixology’s culture of historical stewardship and creative collaboration, the answer is “no.” (House says he faced backlash from fellow mixologists after being quoted in the October 2021 PUNCH story. “I just feel like the people that hate it are the people that are not open to what the future holds,” he says.)
But even if you believe that the world needs, say, a Cosmopolitan on the blockchain, who gets to mint it? The person who invented it, of course. And who is that? Well, says Greene, “There’s a woman in Florida who says she did, and there’s a bartender in New York who says he did, and there’s a guy in San Francisco who says he did.” Around and around we go.
The legal landscape
House is adamant that he will only ever mint recipes as NFTs if he genuinely believes he created them. “It’s not like I’m going, like, ‘Hemingway Daiquiri, this is my cocktail, I created this,’” he says. “What I’m doing is like a culinary art. My recipe is completely different, it is a one-of-a-kind thing that you’re not going to be able to get from anybody else.” It annoys him that people mint classic cocktail recipes they didn’t create: “That’s not cool, that’s not unique.” He’s right: it’s corny as hell. But unfortunately, in the eyes of existing U.S. law, neither House’s recipes nor canonical recipes are defensible as property. Experts don’t see this changing just because NFTs now make it (sort of) easier to track where the recipes came from.
“I don’t think that an NFT is going to somehow convert [recipes] into being protectable,” says Dan Barsky an attorney with Holland & Knight who has written about the interplay of blockchain technology and intellectual property. “Anybody who’s got a different take on that, I would point them to the fact that the U.S. copyright law is U.S. copyright law, and will be no matter what new technology is created.” For an example, he continues, look at the rise and fall of Napster. Yes, the music downloading platform revolutionized the distribution of music and paved the way for innovations in streaming content digitally. But because music is copyrighted intellectual property, the company itself was sued into extinction all the same. “Metallica very quickly proved, ‘No, that’s still infringement,’” says Barsky.
(As a quick point of clarification: there have been a handful of examples where someone has successfully protected the intellectual property of cocktails. But, crucially, legal skirmishes over drinks like the Dark ‘n’ Stormy and the Painkiller focused on the trademarked brand names, not the potential copyrighting of the recipes themselves. Besides, it’s usually big liquor companies bringing these legal actions, and typically they’ve targeted other firms; it’s nearly unfathomable to imagine an individual bartender with the resources to do likewise against their fellow bartenders, to say nothing of the cultural blackballing they’d likely encounter if they did.)
“So much of internet law is just law that already existed, in a new medium,” adds Greene. That was good news for Metallica, and bad news for bartenders who see NFTs as a path to establishing ownership of recipes. The people who apply and interpret U.S. copyright law almost certainly won’t view an NFT-exclusive recipe as defensible intellectual property. Even if they did, Napster is ironclad proof that the general public will pirate the hell out of it anyway. Then what? Policing unsanctioned recipe usage in the decentralized economy of mixology would be a game of Whac-a-Mole even if the courts would reliably rule in favor of the bartender (which they won’t), and aside from maybe getting shunned in the crypto community, there’s no real downside to a token holder sharing a “secret” cocktail recipe with a friend — or publishing it online for all to see. With NFTs, says John Szymankiewicz, a craft beverage attorney who founded Raleigh, N.C.’s Beer Law Center, “we still have to worry about the same sorts of things; we’re just looking at it through a slightly different lens.”
Of course, while the ingredients and processes that go into creating cocktails cannot be copyrighted, there are other aspects of the beverages — from cocktail books and photography, to specialty glassware designs and drinks-related machinery — that bartenders and bar owners may be able to protect successfully using copyrights, trademarks, trade secret claims, and even patents.
Barsky, who is also an adjunct professor at the University of Miami School of Law, sees some NFT opportunities for cocktail bartenders hoping to monetize these complementary intellectual properties. “I see NFTs as being another line of marketable, saleable material that can go along with new cocktail recipes,” he muses, likening them to souvenir T-shirts or those “wall of fame” photos that restaurants put up when customers eat grotesque amounts of food within gastrointestinally ill-advised time periods. Instead of bringing their Hand Grenade mug to business meetings and private functions to prove that they’d drunk the real deal at New Orleans’ Tropical Isle (the trademark’s holder), “people could go, ‘Look, I bought the authentic [Hand Grenade], here’s my NFT in my crypto wallet.’”
Any and all of the above would be defendable intellectual property. It would still require general crypto buy-in from customers, but it’s not inconceivable to imagine drinkers paying for real-life drinks to send social signals about themselves online. (Hello, Untappd!) And while there are many bartenders who would rather just be valued for the drinks they make and the atmosphere they create rather than building a lifestyle brand around their work, there are others like House who are more open to the idea. NFTs might help in that regard, but they’re a partial solution at best to the dilemma of recipe ownership.
For Megan Deschaine, a more comprehensive solution is to stop treating it as a dilemma entirely. “At the end of the day, the goal of any person who’s creating drinks is to be replicated,” she says. “We all want to create that fucking Penicillin or Naked and Famous, the modern classics that every bartender across the country knows.” The greater objective than monetized recipe ownership, she continues, is the respect in the industry that a popular cocktail confers on its author. As for getting paid for that creative labor, Deschaine ultimately received an out-of-court settlement from the vendor that marketed the Disco Sour kit using her name. (Without a smart contract or even a contract at all, the bartender won that concession the old-fashioned way: luck, and a lot of emails and phone calls.)
“I think there could be greater gains with bars and restaurants having some sort of commission-based structure, or incentivizing creation, that drives sales in the first place,” says Deschaine. “I don’t really see there being any kind of meaningful solution of a bartender actually owning the recipe.”
Which, again, they really can’t. Not yet, anyway.
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