Page 8 - Beverage MasterOct Nov 2020

Legal & Marketing

“reduced to practice,” meaning that either you protection, discussed above. Our founding fathers
must have actually created your invention or have recognized the valuable contribution made to soci-
described it in sufficient detail that someone skilled ety by authors and artists and, therefore, sought to
in that area could follow your disclosure and cre- encourage creative expression by providing protec-
ate it themselves. So, you can’t get a patent on a tion for artistic works. Examples of copyrightable
time machine, because (at least for now) no one materials include, books, paintings, sculptures,
has figured out how to defy the time-space contin- musical compositions, and photographs.
uum. In addition, to be patentable, ideas must be
novel, meaning that no one else has ever disclosed Unlike inventive ideas, which are only protected
that idea before, and non-obvious, meaning that when the government issues a patent to the inven-
your idea cannot be an obvious variant on someone tor, copyrights attach at the moment the artistic
else’s invention. work is “fixed” in a tangible medium. So, for exam-
ple, if a composer develops a new musical score
Given that humans have been making beer for in her head it isn’t protected, but the moment she
thousands of years, one might think that coming up translates that tune to notes on a page or computer
with something novel in the brewing process would screen, it becomes protected by copyright. In order
be impossible. Not so. In preparation for this arti- to enforce that copyright in court, however, it must
cle, I ran a quick search of patents containing the be registered with the U.S. Copyright Office. While
word “beer” in the title and got 491 hits. Some it is possible to wait until an infringer comes along
recent examples include U.S. Patent No. 10,570,357 before filing for registration, doing so can severe-
– “In-line detection of chemical compounds in ly limit the damages that may be available to the
beer,” U.S. Patent No. 10,550,358 – Method of pro- author of the creative work. So, early registration is
ducing beer having a tailored flavor profile,” and the better course.
U.S. Patent No. 10,400,200 – Filter arrangement
with false bottom for beer-brewing system.” In the beverage industry, copyright issues often
crop up with regard to labels and advertising mate-
Improvements in any area of the alcoholic bev- rials. But often disputes arise relating to who owns
erage industry may be patentable including, new the artwork contained within a label, for example.
types of bottles, cans, growlers, and kegs; new types Generally, the author of a work owns the copyright.
of closures and caps; improved methods of sepa- But, if an employee of a brewery, acting within the
rating hops from bines and leaves; new processing scope of their employment, creates an image that
equipment, improved testing procedures and equip- the brewery owner incorporates into its labels, that
ment, improved packaging, etc. Essentially, any- picture is considered a “work made for hire” and is
thing that lowers costs between the farm and the owned by the brewery. Where disputes often arise,
consumer, improves the quality of the beverage, or however, is if the brewery hires an outside artist
enhances the consumer experience is worth consid- or a branding agency to develop the artwork. In
ering for patent protection. that case, the brewery should include language in
its contract requiring assignment of all copyrights
One word of caution, however; time is of the to the brewery for the created artistic works. The
essence. The America Invents Act, effective March same would apply for any artwork commissioned
16, 2013, brought the U.S. in line with most other for use inside the brewery tasting room or for mar-
countries in being a “first to file” system, meaning keting materials.
if two people develop the same invention, the first
to file for patent protection wins, regardless of who Trademarks Protect “Source Identifiers”
first came up with the idea. Also, any public disclo-
sure of your idea (such as at a trade show) starts a People generally associate trademarks with
1-year clock to file or you may lose your eligibility the protection of a brand. In fact, I have often
for patent protection. described trademarks as an “insurance policy for
your brand.” But, in more technical terms, what a
Copyrights Protect Creative Works trademark protects is a “source identifier.” The pur-
pose of trademark law is to protect consumers from
The authority for copyright protection stems from being misled or mistaken as to the source of a prod-
the same section of the U.S. Constitution as patent uct. So, for example, if a consumer sees a pair of

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