Music, movies, TV, sports, art. These are all things that have influence over our everyday lives. You may have a phrase that has become a part of your common vocabulary that was a line you picked up from a movie. Your love three piece suits may have come from some swank character in a TV show. Your guitar playing style was forged from the off time, chaos from a tech metal band that blew your mind. It’s safe to say that we all do something that was influenced by media at some point.
Beer is no different and I don’t just mean the liquid, in the keg, can, bottle or glass. Names of the beers along with artwork for labels, posters, glassware and other merchandise offer multiple canvases for breweries to paint their tribute to the influencing medium. And with a number of breweries that continues to grow and market that is still tip toeing along the edge of saturation coming up with names that are catchy can become a full-time job in and of itself. When you couple this tight rope walking job of determining names and branding along with outside influences you may very well find yourself heading down a path that is maybe even more slippery than the floors in your brewery.
You would think in this industry where it seems like common practice now to hear about breweries going after other breweries over names, branding and the like that intellectual property would be a 101 course for coming into the field. Simple Google searches for beers with similar names is the easiest step but putting forth just a tad more effort like searching BeerAdvocate, Untappd and even the US Patent and Trademark Office can be classified as due diligence for most breweries. Infringing on another brewery’s trademark is not fun and not only can it result in having to go back to the drawing board on a name but lost revenue from having to pull product and merch that may bear the infringing name. So check all those things and your good right? Well not so much.
Remember the whole influence thing? Brewers get influenced by things outside of beer a lot of times. This can lead to a cheeky Lebowski reference, your favorite song title or the latest binge worthy Netflix series’ main character becoming a part of your newest brand. But really are you allowed to do this?
If you were waiting for me to provide you with the answer to this question then you may be slightly disappointed. I’m not a lawyer, let alone one that deals specifically with intellectual property issues, but wanted to pose the question as more and more I see breweries taking liberties with IP from outside of the beer industry. Also this will be where I say that my opinions are not legal advice. Cool?
There really is a fine line in the whole argument and it really depends on where the tribute to the influencing source ends and where infringing begins. A pun is one thing and probably was once thought of a safe territory until the recently made Bieryonce, from Lineup Brewing in New York, was slapped with a cease and desist from some big time singer that some people have heard of. The beer was in name alone and contained no imagery of the megastar songbird whose name escapes me at the moment. Even with the potential to argue parody on their side, Lineup pulled cans with with the name in question and started branding it under a new name. I mean what small brewery has the money to fight a court battle with this accomplished vocalist? (Editor’s Note: Mike knows the name of this singer but wishes not to write her name out of fear of C&D)
Puns aside though, the biggest culprits that I continue seeing with IP infringing names and branding are the ones that straight up lift names, artwork, character and actor likenesses from their sources. While one can probably defend puns — if they have a lot of money — it’s not so easy to defend having a character’s straight up likeness on a label. I’ve seen everything from Storm Troopers to Yoda to Stranger Things characters and even Will Ferrell himself on labels, all likely without permission.
Sure you will have some that will claim parody but that could be a very difficult stance to prove. Parody typically contains a comment or criticism of the original source. Just creating a tribute to the source because you like it really doesn’t seem like a comment or a criticism.
Others will most definitely claim ignorance on the whole thing. While I’m sure there are many brewers out there that don’t completely grasp intellectual property there should be some common sense involved with the whole thing. If the shoe were on the other foot and a TV show used a beer brand that looked almost identical to a real brewery’s would that brewery just sit by and let it go? Come on!
Then there are two other types that you will have as well. You may have those that don’t care and will just want until they are told to stop — the whole ask for forgiveness instead of asking for permission type — or you will have those those that see it as an opportunity. Believe it or not but there are people out there that will use someone else’s work to get a C&D to give press to themselves. I know those people are out there but let’s just hope they are in the very, very small minority.
At the end of the day we will all continue to be influenced by the things we love and if that compels you to be creative then, awesome! That is really the goal of most of these things that influence us, to influence. Writers write knowing that they could influence others to follow in their foot steps. Artists draw and paint and sculpt hoping to illicit feelings from those that look at them and to think. If people were not influenced to continue in the steps of those that came before them we would no longer have those things we love.
A lot of these breweries have talented designers in house or on hire through firms. Why don’t you allow them to get really creative and create something new and eye catching instead of taking the easy way out with lifting someone else’s work? Go and spend 20 minutes looking at Oh Beautiful Beer’s website and then you’ll probably find that you spend another 40 minutes gazing at the wonderful works without even noticing the time. If you can’t afford to pay a graphic designer then maybe look for a local artist that may take payment in beer. Hell, I know some graphic designers that have taken partial payments in beer too. You have options out there to have original artwork made, you just need to put forth the effort to find it.