sportscrazed2
Well-Known Member
Just curious how legal it is for different homebrew supply stores to sell clones of commercial beers? Don't they have some kind of copyright to prevent this?
Legality of beer clones?
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They all say something like, "our version of ______", or in the case of one of my favorite clones "Shirley Furioso" instead of "Surly Furious".
I think Northern Brewer's website says that Surly Brewing helped with the clone recipe!
I think Northern Brewer's website says that Surly Brewing helped with the clone recipe!
sportscrazed2
Well-Known Member
really? a commercial brewer would help develop a clone recipe? cool i might have to try that one out.
HOP-HEAD
Well-Known Member
I think it'd be more of an issue if homebrewers actually posed a real threat to the craft brewing industry... fortunately for us though, I believe it's the other way around. Homebrewers are helping to "grow" the industry. We represent a very small percentage of the population who are going around talking about how good craft beer is... the more we do that, the more others will buy similar beers... most of whom will buy the real Two Hearted Ale, rather than spending the necessary time to make the clone...
Just my $0.02.
Just my $0.02.
Austinhomebrew
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I don't believe you can copywrite a recipe or a scent. Clones of perfume are legal.
Most commercial craft brewers are an sharing bunch, where homebrewers are concerned. Many folks have even emailed brewmasters and gotten detailed info on their beers, some have even broke the recipes down from bbls to homebrew scale.
The Szamatulskis who put together the clone brews book worked with many of the original breweries when comming up with the recipes for their books.
Sir-Brews-Alot
Well-Known Member
There's a Pliny the Elder clone floating around the interwebs that Russian River's Vinnie Cilurzo created specifically for homebrewers.
The only brewery I've found to be aggressively tight lipped about their beer is New Glarus brewery, unfortunately, since I'd love to attempt to clone some of their beers.
The only brewery I've found to be aggressively tight lipped about their beer is New Glarus brewery, unfortunately, since I'd love to attempt to clone some of their beers.
jmhart
Well-Known Member
Not a problem at all. It's not like people break into the brewery and steal the recipe....clone recipes, in most cases, are just someone's best guess as to how it's made. Same as saying "This tastes like that." May not be, and probably isn't, the exact same recipe...and even if it was, it'll still be fine since they came up with it on their own.
You can go out and make your own Coca Cola recipe if you want. No problem what so ever.
Now, trying to sell said coca cola clone with the named "coca cola" is another issue and one that will get the crap sued out of you.
Trouble_Brewing
Well-Known Member
Didn't Mike McDole win the Sam Adams Long Shot competition a couple of years ago with a Pliny clone? That beer went on to be brewed, packaged and sold by Boston Beer Co., which is a pretty interesting development. Since that's legal I see no reason why a clone kit should not be. Bottom line is that the recipe is only a small part of the experience of the final beer.
It's all fair game which is a good thing. To further illustrate the openness in home and craft brewing: Mike McDole's recipe, Janet's Brown is probably one of the most frequently brewed recipes at home brew competitions; it's brewed by tons of home brewers. You could make a sound argument that it's redefining the style since it's really outside the BJCP guidelines. People keep placing well with it (and it really is a great recipe) so brewers will no doubt keep entering it. You don't see Mike trying to protect his recipe either; in fact he openly encourages it.
It's all fair game which is a good thing. To further illustrate the openness in home and craft brewing: Mike McDole's recipe, Janet's Brown is probably one of the most frequently brewed recipes at home brew competitions; it's brewed by tons of home brewers. You could make a sound argument that it's redefining the style since it's really outside the BJCP guidelines. People keep placing well with it (and it really is a great recipe) so brewers will no doubt keep entering it. You don't see Mike trying to protect his recipe either; in fact he openly encourages it.
Chemkrafty
Well-Known Member
When it comes to intellectual property, you have to be careful. In order to own a technology, for example, you patent it, which puts a LOT of info into the public domain. Recipes such as a Coca-Cola, are kept as trade secrets and are not disclosed. Sure they could publish it, and own it, but then people would make it and just change enough of it to say its not the same recipe and they are not breaking the law. As far as I am aware, there is no legal repercussion to clones as the recipe is a trade secret and not protected.
The only issue I've had questions about in regards to selling clones, and I've brought it up on here, is there's one online retailer who is packaging and selling the clones of the BYO 250 recipes. In fact rather than offering instruction sheets with these "kits" they tell folks to buy the magazine. I've wondered if the have, and/or need permission from the mag to sell the kits as "BYO magazine" recipes, and if they obtained permission. It does say in the typical small print boilerplate in the magazine that all contents of the magazine are owned by the publishers and you need permission to reproduce them commercially.
Armchair lawyers have argued back and forth about it in those threads. I finally emailed the mag form clarifiaction but never heard back, and don't know if they persued it with the vendor. And the vendor's never posted back on here since they started a thread on here, so who knows if they got shut down, or were fishy to begin with.
Armchair lawyers have argued back and forth about it in those threads. I finally emailed the mag form clarifiaction but never heard back, and don't know if they persued it with the vendor. And the vendor's never posted back on here since they started a thread on here, so who knows if they got shut down, or were fishy to begin with.
samc
Well-Known Member
Recipe itself is not protected, only the unique techniques or methods would be. A brewery can protect the name of the beer by Trademark so someone selling a clone of "XYZ Beer" and using that name would be in violation of the Trademark.
- Holiday Inn
- Holiday Inn
Houblon
Well-Known Member
The name & likeness of packaging can & often is Copyrighted
Recipes can not, same for yeast thus many will use another for bottling.
Page 32 shows the Houblon Chouffe schedule >
http://www.brouwland.com/content/assets/docs/Brouwland Hip Hops final.pdf
Recipes can not, same for yeast thus many will use another for bottling.
Page 32 shows the Houblon Chouffe schedule >
http://www.brouwland.com/content/assets/docs/Brouwland Hip Hops final.pdf
From a Canadian perspective: using the BYO name to sell a product is iffy, illegal at worst, without auhorization, but that's trademark law. Reproducing the recipes from the magazines would clearly be illegal. But they don't reproduce them, they only sell goods made from these recipes. And ideas don't fall into what is protected by copyright law, unless in very special circumstances (you can still be found in violation of copyright if you take an idea and make it your own if you had a relationship based on confiance or trade secrets, but good luck proving that in court if you don't have an actual physical copy that is dated). Again, acting this way is iffy at best: maybe not grounds for lawsuit, maybe it is: depends on the judge and how convincing a case you can make, especially if it cuts on your profits.
You then have the whole issue of moral rights (paternity rights, notably). In this case, the whole point of the affair is that they are selling recipes that are BYO proven, so credit is given.
The core of the matter is that they aren't reproducing the magazine content per se, altough they are probably using names and trademarks wich are susceptible to be protected. You don't need to borrow a whole lot of words, sounds or images from copyrighted works to be found in violation of copyright. But again, not all parts of a work are copyrighted: the act of reproduction must be substantial and you have judgements that consider that titles aren't part of a work, while others say the opposite.
My best guess as to why legal action isn't taken in the home brewing world:
a) Suing costs money and there's no guarantees
b) The clientele from BYO or craft brewers is exactly the same as the one who buys kits from online merchants
c) The online merchants may not have anything left to give in dammages if they are found guilty
PanzerBanana
Well-Known Member
Yes, yes you can. Once an idea is put into any fixed form, from a drawing, diagram, recipe, formula or detailed instruction, it is automatically protected. Officially registering hasn't been required for several decades, it's merely an extra measure of protection. And copyright protection lasts for 75 years after the death of the creator.
Clone recipes do technically walk a fine line. What saves the companies is that the majority of craft breweries put community first, and despite the growing interest in home brewing, they don't significantly hinder breweries business. As I would assume most use clones to try their hand at crafting a favorite brew rather than replacing it.
Any company selling cloned recipes would do well to negotiate some sort of licensing with a brewer.
If you consider the number of a particular kit sold and how many gallons/bottles they produce, and reason the cost of the real deal and the taxes the brewer is paying on their beer, there's probably enough there for a cloned recipe to get a company in trouble if a brewer really wanted to take action. They would likely just get a cease and desist order though.
My go to "holiday beer" is a pumpkin porter recipe that was developed in conjunction with the brewery that created the original recipe. It's a seasonal brew for them, and always sells out within a few weeks so now my friends turn to me for their fix of this favorite festive beverage.
Punky's Pumpkin Porter, a 4 Peaks Pumpkin Porter clone
Punky's Pumpkin Porter, a 4 Peaks Pumpkin Porter clone
cheezydemon3
Well-Known Member
Stone posts links to their recipes.
If anything, HBers will buy more to see if their "clone" matched the original.
The offer of recipes will make the commercial brew (and the brewery) more popular.
The day it threatens their sales may be a different matter, but will it ever come?
I doubt it.
If anything, HBers will buy more to see if their "clone" matched the original.
The offer of recipes will make the commercial brew (and the brewery) more popular.
The day it threatens their sales may be a different matter, but will it ever come?
I doubt it.
The other issue is what makes a clone a clone? Taste? Ingredients? Process? There are so many variables. If I change the hopping schedule ever so slightly is it no longer a clone? There is a lot more that goes into making a beer than just a "recipe". That is why I don't think any breweries have to worry about someone "stealing" their beer.
Desert_Sky
Since 1998
Nonsense....
You cannot patent a recipe. Every brewery is going to have different methods for brewing which will bring about a different finished product.
You cannot patent a recipe. Every brewery is going to have different methods for brewing which will bring about a different finished product.
remilard
Well-Known Member
This is true. I asked them for a few hints on their Golden Ale and they didn't send me a reply at all. Just completely ignored me. I do love touring their brewery though. One of these days I need to do the actual pay tour.
jkarp
Well-Known Member
Yup. Panzer was way off in the weeds on that post.
But they did clear up that whole issue I had with my pic of Elvis in the Kalamazoo Burger King, though.
I think there was a mixupin Panzer's reasoning.
If you publish a recipe in a magazine, it is protected under copyright law if you provide directions (all of them do), at least in Canada, in the sense that you cannot reproduce that recipe in another book. Example: A publishes a cooking book. B cannot take all the recipes and publish them as his own, because not only did he reproduce them unlawfully, but he is also in violation of paternity rights. They fall into literary works. The same could be said for an audio recording of you reading your recipe out loud. If someone were to make an mp3 of it, you could claim violation of your exclusive reproduction rights.
You cannot patent a recipe. Well, you could try, but doing so would require divulging said recipe. This is why PFK and Coca-Cola have their famous recipes as trade secrets instead. If someone who was "in the know" and had signed a non-disclosure agreement spilled the beans, the lawsuit would be a whole lot easier. So you just restrict access to the recipe (wich cannot be done in a cookbook, for example).
But there's nothing stopping you from going to your local bookstore, learning all the recipes in their cookbooks by heart without paying and making them at home (or even in your own restaurant, altough that's walking the grey line). Reproducing them on a sheet of paper while reading would not be kosher, in Canada, unless it was for personal use only.
If you publish a recipe in a magazine, it is protected under copyright law if you provide directions (all of them do), at least in Canada, in the sense that you cannot reproduce that recipe in another book. Example: A publishes a cooking book. B cannot take all the recipes and publish them as his own, because not only did he reproduce them unlawfully, but he is also in violation of paternity rights. They fall into literary works. The same could be said for an audio recording of you reading your recipe out loud. If someone were to make an mp3 of it, you could claim violation of your exclusive reproduction rights.
You cannot patent a recipe. Well, you could try, but doing so would require divulging said recipe. This is why PFK and Coca-Cola have their famous recipes as trade secrets instead. If someone who was "in the know" and had signed a non-disclosure agreement spilled the beans, the lawsuit would be a whole lot easier. So you just restrict access to the recipe (wich cannot be done in a cookbook, for example).
But there's nothing stopping you from going to your local bookstore, learning all the recipes in their cookbooks by heart without paying and making them at home (or even in your own restaurant, altough that's walking the grey line). Reproducing them on a sheet of paper while reading would not be kosher, in Canada, unless it was for personal use only.
jkarp
Well-Known Member
But they did clear up that whole issue I had with my pic of Elvis in the Kalamazoo Burger King, though.
Gotta be a fake Elvis. Real one sent Hamburger James on the burger runs!
They charge you for the tour?
Don't forget that the recipe of a beer will change year to year, so having a copyright on a recipe (which you can't do anyway) would require a new one every year. Most companies try to reduce the variation by using hop blends (Widmer's Alchemy) tailored for specific alpha acid balances, but hops and grain (to a lessor extent) vary too much for a specific recipe to be stable.
And many clone recipes match the flavor without matching the recipe. Austin Homebrew's Rogue Mocha Porter clone is an excellent example. Tastes the same, but the hops and grain bill are not what Rogue uses.
And many clone recipes match the flavor without matching the recipe. Austin Homebrew's Rogue Mocha Porter clone is an excellent example. Tastes the same, but the hops and grain bill are not what Rogue uses.
You are allowed to walk freely through their brewery at anytime, and give yourself a tour. Their new brewery was built and designed to allow visitors to walk through all parts of the brewery but not actually get in the way. You can even look through windows into their yeast lab. It really is the coolest brewery I've ever seen. But they also have a more in depth tour involving their old brewery and the new one. I think it's called the "hard hat tour" which is $20. Here is the link http://www.newglarusbrewing.com/HardHatTour.cfm
pj_rage
Well-Known Member
We keep mentioning coca-cola, and their recipe being a trade secret instead of patented.
So if a cola company stumbled upon a coke recipe so close as to be indistinguishable from the original, and sold it for less (or the same/more, whatever), would it be punishable? Is it illegal to keep guessing and if you get it, good for you?
What about if a chef at a nice restaurant makes a dish you really like, is it then illegal to try to recreate it and serve it at your own restaurant?
Morals and bad business aside, is it illegal to do either of these things?
Isn't this sort of what pharmacies do with their house brand of brand-name drugs? I mean they have the exact "recipe" in some (most/all?) cases, and sell it right next to the brand name for less.
So if a cola company stumbled upon a coke recipe so close as to be indistinguishable from the original, and sold it for less (or the same/more, whatever), would it be punishable? Is it illegal to keep guessing and if you get it, good for you?
What about if a chef at a nice restaurant makes a dish you really like, is it then illegal to try to recreate it and serve it at your own restaurant?
Morals and bad business aside, is it illegal to do either of these things?
Isn't this sort of what pharmacies do with their house brand of brand-name drugs? I mean they have the exact "recipe" in some (most/all?) cases, and sell it right next to the brand name for less.
HOP-HEAD
Well-Known Member
Yes and No... in the case of drugs, they can only be replicated after their "brand name" patent has expired. Though the patents last about 20 years (I believe), they actually are obtained during the testing, trials, etc... and so they only last about 10 years after the drug is actually approved and on the shelves. Once it's expired... it's essentially free-reign... copy at will. Meanwhile, the brand name company is still trying to pay off the R&D costs, and so they're forced to continue to charge more.
pj_rage
Well-Known Member
Does this apply even to "new" "drugs" that are merely a combination of already existing drugs, just packaged differently and/or together? Like adding sudafed to robitussin, or maybe airborne or something (I'm not a pharmacist so I don't know for sure if those are great examples, but there has to be something where they take two or more existing ingredients, combine them in effective dosages and market a new product). I think such a case would be more applicable here too, for that matter.
In the Flying Dog gift shop in Frederick MD, they actually sell all-grain kits of some of their beers.
Not at all illegal.
It's only illegal if you market the cola using the Coca-Cola trademark in some way, or if your restaurant is perhaps using the other restaurant's name on the menu. I.e. if you violate someone's trademark in your marketing of the clone, there's a problem. But if the recipe just happens to be the same and taste the same, no problem.
You can't patent a taste or a scent. How would you? Think about it. Describe with particularity a certain taste or smell. You can patent a production process. That's why Coke's recipe is so closely guarded and why there are so many knock off fragrances.
Sent from my iPad using Home Brew
Sent from my iPad using Home Brew
thisisbeer
Well-Known Member
I feel like some people are missing this. You can't copyright a recipe. As long as you don't use the name, logos, or other things associated with a company you could open a brewery and brew a Heady Topper clone and call it "Something Else IIPA". Now if there was a special technique to brew this beer like a special way to dry hop or some other technique that was created by the brewer, then it could be copyright infringement. Medicine is different because it's the affect of the "recipe" that they are after. It's in a different category then a food or beverage recipe. There is a ton of studying involved in medicine and how the ingredients affect the final way it works.
Yup. We'd better go back in time 3.5 years and let everyone know.
Oh, and special processes can be protected by patents, not copyright.
Oh, and special processes can be protected by patents, not copyright.
troy2000
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I would think that normally, there's nothing wrong with you selling something that tastes as much like Coca Cola as possible. Your problems would start if you started calling it Coca Cola, implying it was Coca Cola being sold under a generic label, copying Coke bottles and logos closely enough to create confusion between their product and yours, or otherwise trying to make customers believe they were buying Coca Cola.
Historical footnote: years ago I had a vinyl wrap for beer cans that turned them into an amazing copy of a Coke can - except that it said CooCoo Cola. I had a beer in my hand the day I met my wife-to-be, and when we finished talking she actually asked if I wanted another Coke to take with me. You'd think seeing me laugh and unwrap the beer would've been all the warning she needed to stay away from me....
cheezydemon3
Well-Known Member
I made some awesome BANG BANG shrimp last night!
Is Bonefish gonna sue me?
1 lb small shrimp peeled/de-veined
1 cup sweet thai chili sauce
•3/4 cup of Sugar
•1/4 cup Rice Vinegar
•1/4 cup of water
•1 tbsp finely minced garlic (about 5-6 garlic cloves)
•1 teaspoon crushed red pepper flakes
•1 teaspoon Sriracha (or less)
•1 tbsp of cornstarch
•1 tbsp of cold water
•1/2 teaspoon salt
cornstarch for dredging
2 cups mayo
Fry the shrimp at 350F coated only in corn starch for 2 minutes THEY WILL NOT TURN GOLDEN.
Toss in mayo/sweet chili
EAT
Is Bonefish gonna sue me?
1 lb small shrimp peeled/de-veined
1 cup sweet thai chili sauce
•3/4 cup of Sugar
•1/4 cup Rice Vinegar
•1/4 cup of water
•1 tbsp finely minced garlic (about 5-6 garlic cloves)
•1 teaspoon crushed red pepper flakes
•1 teaspoon Sriracha (or less)
•1 tbsp of cornstarch
•1 tbsp of cold water
•1/2 teaspoon salt
cornstarch for dredging
2 cups mayo
Fry the shrimp at 350F coated only in corn starch for 2 minutes THEY WILL NOT TURN GOLDEN.
Toss in mayo/sweet chili
EAT
