Often, news journalists can confuse copyright infringement with trademark infringement. While both types of intellectual property protection can be vital, especially to a new brewery, most often a dispute arising between two beer manufacturers generally involves trademark law and unfair competition law.[1] But as the trademark registration process has become arduous and the craft beer industry has become more competitive, craft breweries have become more creative in attracting consumers by incorporating stunning and eye-catching artwork on their labels. It is true that wineries have already done something similar with their labels to conjure a sense of luxury and retain qualities of sophistication.[2] Craft breweries, on the other hand, have seemed to take more expansive, yet innovative approaches.

Whether it is portraying a retro Californian scenery and a vintage car, Andy Warhol-like pop art,[3] film photography like one would find on a Sonic Youth or a Vampire Weekend album, or collage artworks that resemble a Jeff Koons project,[4]the modern craft beer label has slowly turned into the new indie/alternative album cover during an era where music is predominantly consumed digitally.[5] While music listeners are still collecting vinyl records and modern indie and alternative albums are still incorporating unique artwork,[6] the visual appeal for them has not been the same since the days of Joy Division, The Velvet Underground, and Nirvana.[7] That is where the modern craft beer comes in.

But just like how the recognition of fashion design as copyrightable subject matter began to open the floodgates for more copyright infringement lawsuits, the same scenario could hold true for the craft beer industry. Just last year, a federal district court in Tennessee held for the defendants in Tailgate Beer, LLC v. Boulevard Brewing Co., a case between two breweries involving both trademark and copyright infringement claims. The court held that the two designs, which both show the bed of a pickup truck was not infringing, because both designs were not found to be substantially similar. In addition, the court held that under the scenes a faire doctrine, the idea of a truck and its natural portrayal was unprotectable, and the depiction of a keg in the bed of the truck was too generalized to issue copyright protection.[8]Under the scenes a faire doctrine, elements of a work of art, like character traits, basic plotlines, general themes, or other commonplace ideas, are unprotectable because they are fundamental building blocks of creation.

Prior to Tailgate, only a couple of prior instances of copyright infringement involving craft beverages have taken place. One dealt with the use of a Godzilla character, which eventually led to a settlement[9] and the other involved the use of an artwork that depicted jazz musician Thelonius Monk.[10] While this case may have been a sigh of relief for Boulevard Brewing Co., other craft breweries may not be so lucky, especially as craft breweries continue incorporating product labels with more detailed artwork and less generic features.[11] Thus, as successful craft breweries gain recognition nationwide, if not worldwide, they may need to consider copyright protection in addition to trademark registration. There are a couple of factors for this:

Firstly, the artistic creations being implemented in the growing industry is still evolving. Manufacturers have plenty of artistic freedom in designing their labels that still allows for compliance with alcohol labeling requirements under § 27 C.F.R. 7.29.[12] While the fair use doctrine is still a stable defense, the boundaries of transformativeness pertaining to visual art are still uncertain.[13]

Secondly, just like in fashion, alcohol is also subject to counterfeiting in various countries.[14] While some of it can appear playful, [15] sometimes a cease and desist letter just will not cut it.[16] Someone ingesting a counterfeit DogFish Head or Flying Dog IPA, which may be adulterated with methanol, is no laughing matter. In fact, the consumption of counterfeit alcoholic beverages has recently led to several deaths worldwide.[17] Not only can this affect tourism, but it can affect your brand, i.e., your business. As Matthew Dresden noted that counterfeiting in foreign countries has become creative in their own way, and while trademark registration for a beverage’s label may be sufficient to stop a fake, “why not give yourself more ammunition.”[18] The requirements needed to register your intellectual property in a foreign jurisdiction, and the costs and benefits of doing so should also be analyzed as well.

 

* Mark Edward Blankenship Jr. is a graduate from the University of Kentucky College of Law (2019) where is served as Operations Manager on the editorial board for Volume 107 of the Kentucky Law Journal. Prior to law school, he graduated from Georgia Southern University with a B.A. in Music.

[1] https://shows.acast.com/ipse-dixit/episodes/mike-kanach-on-trademarks-craft-beer

[2] https://www.winemag.com/art-on-the-bottle/

[3] https://www.hopculture.com/best-craft-beer-can-art-2018/

[4] https://craftandslice.com/beer/beer-interviews/sophie-de-vere-designer-whiplash-lovely-cans/

[5] https://www.canamagazine.com/2020/01/2019s-best-craft-beer-art-design/

[6] https://creativesfeed.com/best-indie-album-artwork-designs/

[7] https://www.creativebloq.com/features/the-20-best-album-covers-of-all-time

[8] https://scholar.google.com/scholar_case?case=3882078061013541864&q=boulevard+brewing+co&hl=en&as_sdt=80006

[9] https://www.hollywoodreporter.com/thr-esq/godzilla-rights-owner-slays-mechahopzilla-709358

[10] https://scholar.google.com/scholar_case?case=13370740773010466727&q=signorelli+v.+north+coast&hl=en&as_sdt=80006

[11] https://www.beervanablog.com/beervana/2018/6/4/that-clever-label-beware-copyright-infringement

[12] https://www.law.cornell.edu/cfr/text/27/7.29

[13] http://www.herrick.com/publications/the-transformation-of-fair-use-after-prince-v-cariou/

[14] https://www.hopculture.com/best-craft-beer-can-art-2019/

[15] https://www.instagram.com/intellectualpoooperty/

[16] https://vinepair.com/articles/craft-beer-labels-intellectual-property/

[17] https://www.rollingstone.com/culture/culture-news/costa-rica-death-tainted-counterfeit-alcohol-861898/

[18] https://www.chinalawblog.com/2018/10/china-copyrights-wine-labels-in-china.html

 

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