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Trevor Frye has words for his former employer, Jack Rose Dining Saloon—1,526 words to be exact. Frye worked as a bartender and beverage director for Jack Rose and its basement bar, Dram & Grain. When Frye split from the company to open his own Adams Morgan bar, Marble Alley, the break-up was bumpy. So bumpy, in fact, that it spurred Frye to write a lengthy manifesto about improving the bar industry as it relates to bartenders’ intellectual property, which he emailed directly to Young & Hungry. The key argument in the proclamation is that now that bartending is a profession instead of a position, bartenders’ creative works should be better protected.
Frye says Jack Rose Partner Steve King threatened to sue him over the split. “I was sitting in the office with Steve when he said, ‘If you try to take Dram & Grain and trademark it, I’ll sue you,’” Frye says. “As in, take it to a brick and mortar.” King denies threatening Frye with a lawsuit related to the speakeasy Frye helped dream up and manage. King and his business partner, Bill Thomas, had already trademarked the bar’s name. Furthermore, Thomas and King say, they actually helped Frye in the early stages of readying his own bar to open in early 2017 by reviewing paperwork.
The trio doesn’t agree on much, including whether Frye resigned or Jack Rose encouraged him to exit gracefully to avoid termination. Then there’s the issue of Frye not feeling like he was adequately compensated for the research and development that went into Dram & Grain.
In addition to base wages of $7 an hour plus tips, Dram & Grain bartenders are paid a nightly commission based on net sales. Frye started at Dram & Grain as a bartender, but was soon salaried and promoted to beverage director less than two months after it opened in February 2014, according to King.
“I don’t know where the argument lives,” says King. “You were bartending in Dram & Grain; you basically wanted to brand it as yours, which I guess in a way suited us okay, you can say anything you’d like to say, but there is a reality, a truth, and once you stop believing that truth or reality, then where do you go? It’s like negotiating with a drunk person.”
Frye pontificates in the introduction to his four-point paper (sic throughout):
“Well if you try to do that, I’ll sue you” were the words that threw gasoline on a fire that had burning inside me for a while now. Those words were spoken to me in regards to a bar concept that I, along with Nicolas Lowe poured our hearts and souls in to creating and executing, and three and a half years and almost 800k in sales later someone else was staking claim to. Someone who had never worked a shift behind that bar, closed it down, created bonds with the guests at, built a soul and a team around, but did line their pockets with the fruits of our intellectual property.[…] If you really want to see where an owners intentions are, tell them you’ll be happy to just keep the title of bartender over Beverage Director, but you do want intellectual property rights for all concepts, cocktails, and anything else you create for them and a certain percentage of the sales made off of them. And when they are done rolling their eyes or picking their jaws up off the floor, remind them that’s how most creative industries work.
When it comes to bars and bartenders intellectual property has been an issue that’s been in the background since 2010, when a Tales of the Cocktail seminar made enough ripples to get picked up in The Atlantic. Bartender Eben Freeman spoke on the panel about intellectual property at the highly lauded bar conference in part because he was fired up about others using his fat-washing technique.
Many bartenders share the notion that their techniques and recipes are intellectual property, but what would that actually mean? Intellectual property is an umbrella term for three concepts: a copyright, trademark, or patent. According to the U.S. Copyright Office, copyright law does not protect recipes that are mere listings of ingredients.
Jim Singer, who specializes in intellectual property law as a partner at Fox Rothschild LLP, has written about copyrighting recipes. He explains that you can copyright the narrative surrounding a cocktail recipe in a book, and the layout of photos that accompany it, but not the list of ingredients.
As far as patenting techniques, Singer says it can cost $20,000 to $25,000. “If they try to patent something new and not obvious, it becomes published and part of public knowledge,” he says. “It goes way back to the days of Thomas Jefferson. One of the trade-offs is that if you teach the world how to do what you’re doing, then the government will give you a patent to make, use, or sell what you’re doing for a limited time period, for about 20 years.” Singer suggests protecting trade secrets through non-disclosure agreements instead.
Jack Rose’s King agrees that copyrighting a drink or patenting a technique is counterintuitive. “The notion that bartenders should protect their intellectual property is ludicrous because you then make the recipe part of public domain, where others are supposed to take that and use it to create something new,” King says. “That’s how we have innovation. You patent technologies that others look at and want to expand upon, but you have to give it up.”
The “old guard” feels that it would be a hindrance to the bar industry and patrons if bartenders withheld their best recipes fearing they’d be “stolen” if printed on a menu. Ego should never trump innovation, goes the thinking. “It’s the new generation of entitlement that’s tough,” says Gina Chersevani, who owns Buffalo & Bergen and Suburbia. She’s been a fixture in D.C. bars for decades.
“When you work at a restaurant, in any position, those dishes or drinks you create are the ownership of the restaurant,” she says. “If you find that infuriating, if you think that’s crazy, that’s what all the drink books have done for hundred of years.” She says we wouldn’t have the Old Fashioned or the French 75 if the recipes had died with their creators. “Imagine if the man that invented the hamburger said no one can make a hamburger anywhere. There’d be nothing to serve.”
One only needs to note the name of Devin Gong’s bar to infer he agrees with Chersevani. “If I make up a cocktail, to me it’s gone,” the owner of Copycat Co. says. “It’s cool if somebody else makes it—that’s the biggest form of flattery. I wish that someday that happens to me, because I’m making everybody else’s drinks now.” Peruse the drink menu to see where Gong’s cited his sources. “The legality of this is damaging to the culture of the beverage world,” he says, referring to any bartender who tries to copyright a recipe.
That’s not to say bartenders shouldn’t be compensated for their ideas. “I believe if you’re the lead bartender or bar manager doing the ordering and all that, you deserve a base salary,” says Chersevani. “But that’s a condition made between you and the owner before you hand over a list. Otherwise, whatever you make while you’re there, you’re making with their product, their staff, and their ingredients.”
Negotiating in advance is where Frye feels he fell short of securing appropriate compensation for his Dram & Grain ideas. “Nick [Lowe] and I should’ve thought more about billing the weeks of work we did creating Dram & Grain outside of Jack Rose, that as hourly employees we weren’t compensated before deciding to deliver the business plan,” he says.
Frye likens the situation to tattoos. “When someone asks a tattoo artist to create something for them, they pay the artist for the time it takes to develop a sketch,” he says. “Whether the person decides to go forward with that tattoo or not, that artist is paid for his time to work on a design.”
Now that Frye is transitioning from bartender to bar owner, he’ll take his own advice. “The business plan for Marble Alley, and every bar I plan on opening, is a profit-sharing system replacing labor costs where staff will be paid based on total net sales for the month,” he explains. He estimates a salary range around $30,000. Gong employs a similar profit-sharing strategy at his bar.
“The system allows me to not only offer a higher earning wage to my staff through sales incentives, but allows me to maintain a set labor cost percentage,” he says. And, once staff complete a training period, they will become vested employees, depending on their role. “Every quarter the percentage will increase by 5 percent until they reach a 100 percent vested share.”
Christine Kim, the head bartender for Tico, The Riggsby, Alta Strada, Conosci, and Casolare, all owned by Michael Schlow, is intrigued by Frye’s plan. “They seem to be great ideas and great ways to take care of staff—having an actual salary and ownership,” she says. “You want your staff to feel invested, to find the right home, because you see bartenders that bounce from place to place.”
Jack Rose is also taking away some lessons. “We can all find a path to make this a profession,” King says. “We’re all going to learn from this, and we’re all going to re-write how we do things to make sure everyone has a clear understanding of what their roles are. This actually is a wake-up call. This is a matter of the heart, and it will blow over. But next time, it might not.” [CP]
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