These days, it’s still rare to see a craft brewery in any sort of legal hot water (unless it’s a contentious trademark dispute). However, a recent employment discrimination action filed by a former Minnesota brewer has serious allegations.
This particular lawsuit calls into question the rationale for the brewer’s termination. Specifically, the former brewer alleges that the brewery improperly discharged him due to (1) his race and (2) his age, contrary to federal and state law.
There are more specifics in the complaint, available here.
This matter is worth noting, whatever the ultimate outcome. Indeed, it reminds us all that breweries are subject to the same standards as any other employer, and would be well served to regularly visit and re-visit hiring and termination practices. For most small breweries, having a dedicated HR team is out of the question—and the budget. However, a consult with an experienced employment lawyer can be well worth the initial investment, to help shore up internal policies, put in place a system for record-keeping, and generally set up a framework for helping the brewery navigate difficult decisions and circumstances down the road.
If a Washington brewery wants minors on the premises, what does it need to do?
The question comes up quite a bit. Can families spend time at a brewery? We’ve seen kids at breweries, but is it legal? Can we get into trouble? As the law and regulations stand right now, the answer is fairly straightforward.
First things first. Federal laws and regulations don’t have a say. So, we don’t need to worry about the Alcohol Tobacco Tax & Trade Bureau (TTB) when thinking about minors on a brewery premises. TTB cares about the premises layout, a lot. But they don’t dictate who comes onto it.
The state perspective, however, does matter. Here in Washington, we have the Revised Code of Washington (RCW) which includes law created by our legislators. We also have the Washington Administrative Code (WAC) which includes regulations. The Washington State Liquor and Cannabis Board (LCB, formerly the Washington State Liquor Control Board) is the regulatory agency that creates the relevant regulations for the alcoholic beverage industry here.
Between the RCW and WAC, here’s what we have. The base license to operate a brewery in Washington State is the Microbrewery License or the Domestic Brewery license, depending on your volume of production. For most reading this, the Microbrewery license applies (60,000 bbl annually).
The base license is treated as a non-retail license. That is, licensees—those who have the licensee—are not treated like “retailers.” This is the case, even though we all know breweries in Washington are allowed to sell beer at retail, just like retailers.
Importantly, though, there is no age restriction imposed at a non-retail premises. Therefore, when a Washington brewery uses its built-in retail rights—under its “non-retail license”—the Washington brewery can allow families and minors on the premises. Of course, the brewery can’t serve alcohol to those minors. And best practice would be to have prepackaged snacks available.
Can a brewery obtain a retail license to supplement its non-retail rights? Yes. But at the location licensed with the retail license, the brewery is subject to food minimums or age restrictions. Retail licensees do have additional obligations to have minors on the premises.
We’ll touch on why a brewery might want a retail license in our next post. As it stands, though, a Washington brewery can have minors on the premises—without burdensome or, truly, any food requirements—so long as the brewery is using its built-in rights to retail beer.
What’s the inspiration behind your beer label? Do you know if it’s original?
So many of our brewery clients have rad acquaintances who are graphic designers, eager to get onboard and build out brand material for little cost. Other breweries may not have the personal connections, but recognize the importance of brand material, and make significant investments in outside creative professional services. Both are great routes, and our post last year touched on copyright concerns in structuring even the most informal of those relationships, to make sure copyright ownership flowed fully to the brewery. Today, I’ll renew our discussion, highlighting another important point. This one is unfortunately inspired by headlines involving our friends up there in Canada, and it emphasizes again how important it is to get a strong creative services agreement in place whenever you’re engaging outside help.
Take a look at these two images. One is a beer label, the other an excerpt from a comic book. Eerie similarities, right? It turns out that Canada’s Central City Brewing hired an agency to create a beer label for its saison. The day before its release, the brewery proudly posted its rocking label art on its Twitter account.
Literally hours before the beer was due to be in stores, Twitter fans pointed out the infringement issue with the character Deena Pilgrim from the comic book series Powers. It seems the brewery had no idea, and thought it was getting a cool piece of original artwork.
So, what happened? The brewery had to put the release on hold and paste 24,000 new labels by hand onto its bottles. Below is an image of the new beer label. (Sidebar: Bear in mind that ideas are not protected by copyright law, but expression is. The concept of a foxy detective wielding her badge isn’t infringement, but as you drill down into specific choices—the placement of fingers on the badge, the style of the hair, the facial expression, the angle of the stance, the decisions involving light and shadows—that’s when you cross the line from idea over into expression. That’s when you run into problems.) Ultimately, this is a frustrating outlay of cash. And, although we’d like to think it was avoidable on the part of the ad agency, I’d like to think it’s easily reimbursable based on the agreement in place between the companies.
So, how do you avoid this sort of issue? First, it’s important to get an agreement with your designer in writing that not only vests ownership in the brewery, but one that also is designed to address situations like this. That’s what a contract does, it sorts out who is liable for what, in the event all sorts of things go wrong with the relationship. This is the sort of thing that could foreseeable go wrong with a creative services relationship. We don’t know what was in the agreement here. But, it’s important to note that it was a professional agency that turned out the problematic work. Do you know where the design direction for your logos came from? Do you know what works were used as inspiration? It’s important to note that even the most talented of designers may not be familiar with the nuances of trademark and copyright, which are often confused in the media. In evaluating trademarks, a comparison of the goods/services in question comes into play. A badge-wielding agent could be used in connection with computer speakers and a brand of beer, and consumers probably wouldn’t be confused. But, when it comes to copyright, protectable elements of a work are afforded strong rights, even and especially when they’re used in different media and on different goods and services.
Best practice is to be proactive and get a copyright agreement in place. On the flipside, best practice is also to copyright your own works as soon as they’re created. No one wants to be the one slapping new labels on through the night, with doubt in your mind about just how easily you’ll get this expense covered. Beyond that, no one wants to be the company whose valuable brand material just got infringed upon. Taking both steps help best protect your brewing business, no matter how the dice roll.
Websites and blogs are a great way for breweries to interact with devoted fans and earn new ones, too. And, for the most part, if you’re the one pushing out information, photos, and whatnot to the public, then it’s easy to make sure things are squared away from a copyright perspective. But, if you solicit comments or photographs from others and display that user-generated content on your website, you could actually be on the hook for your users’ copyright infringement.
Realizing that sites rich with user content, like what we now know as YouTube, could never exist with a super-rigid law, Congress passed the Digital Millennium Copyright Act (DMCA) back in 1998. The good news is, the law helps to protect website owners from secondary liability for someone else’s copyright infringement. In other words, if someone uploads an infringing video onto YouTube, then YouTube has a way out of getting hit with a legit lawsuit every time a copyright owner finds infringing material. But, there’s a bit of a caveat.
Protection from someone else’s copyright infringement isn’t automatic. The DMCA requires that you take certain measures to get that protection, and one measure is registering a designated agent with the U.S. Copyright Office. It’s worth it if you’re even borderline uncertain about whether your website does, or might soon, feature user-generated content. Should a copyright owner ever find objectionable user-generated material on your website, they’d be required to contact that registered agent with specific information about the infringing material and where it’s located. Then, as long as you take it down expeditiously, and take a few other measures, the law would protect you. However, if you don’t designate an agent, you can’t get that shield.
If you’re ever curious about how to get in touch with a website that lacks clear contact info, the US Copyright Office’s list of registered agents can actually be pretty helpful. You can check it out here. To find out more about designating a registered agent, head over to this website. But, keep in mind that there are other requirements you must follow to get that DMCA protection, so it’s always best to check in with your lawyer to make sure you’ve absolutely covered all your bases.
These days, having a solid website is a big part of building any brand. But, if the building process of that website is left unattended, the site can actually be a surprising (and maybe sort of ridiculous) source of legal liability, too. We’re talking about metatags.
If you’re not familiar with metatags, they’re a portion of the HTML that sits unseen under the hood of your website. There are a few different kinds. One of them, the Meta Description Tag, is how you can tell Google what short summary to show under your link in the search result. That’s one every business surely wants to use, and it’s not the one that typically gets folks into trouble. That’s the Meta Keywords Tag. Back in the day, the Meta Keywords Tag was used to stuff all sorts of keywords onto your site, so that you’d rank higher in searches.
And, here’s where the law and the real world start to part ways. Way back in the late 1990s, major search engines stopped paying attention to this keyword field. You can guess why—people just loaded their sites with tons of keyword garbage, and it reduced the quality of search results. Now, Google and the other reputable search engines use their own blend of techniques to rank sites, giving rise to countless schools of thought about just how to optimize your website for rank (SEO, or Search Engine Optimization). Anyhow, Google straight up says, it doesn’t consider Meta Keywords.
But, here’s the weird thing. If you drop a competitor’s brewery or beer name into this Meta Keywords field, even though no typical consumer is ever going to see it and it’s not going to affect whether your site does or doesn’t appear in a search, you can technically still get dragged into court under theories of trademark and unfair competition law. Weird, we know. One case on this is Promatek Industries, Ltd. v. Equitrac Corp.
So this all might make you wonder, if the Meta Keywords Tag doesn’t help you on Google and can potentially get you in court, why bother? We think the same way, and savvy web professionals aren’t populating that field. The trouble is, when you’re first starting out as a brewery or small business, there are a lot of people willing to help out—and this includes hobbyist web designers who can put a really nice-looking site together, but who may not know the nitty gritty of the code. As a brewery owner, maybe you even pulled out that dusty HTML Code for Dummies book and built the first version of your website, and hats off to you for that. No matter how your site got put together, the reality is, when you don’t know otherwise, that “Keyword” field can seem awfully tempting to fill up with various terms and phrases—including ones that can pose issues down the road.
If you haven’t done a sweep of just what’s hiding under the hood of your website, it’s worth cruising through that content today. And, it’s also worth taking that Promatek case as a lesson heading forward: sometimes the law just isn’t what you’d expect it to be.