In an odd twist this week, Bob Pease, president and CEO of the Brewers Association, promoted on Twitter a Pennsylvania brewery and its creation of a beer that walks the line of trademark and likeness laws.
"#Pennsylvania brewery, @BrokenGobletPA, announces Bryce Harper-themed beer http://bit.ly/2C1hlm4 with nice independent beer touch," Pease wrote. He noted that the BA's upside-down bottle "INDEPENDENT" logo was placed at the bottom of the label, which not only features the profile of MLB superstar Bryce Harper but also imitates the aesthetic of The Price is Right—the famous, daytime game show. If produced, the label could potentially be in violation of PA statute 8316, which states:
"Any natural person whose name or likeness has commercial value and is used for any commercial or advertising purpose without the written consent of such natural person or the written consent of any of the parties authorized in subsection (b) may bring an action to enjoin such unauthorized use and to recover damages for any loss or injury sustained by such use."
Harper recently signed a $330-million contact with the Philadelphia Phillies, leading Bristol, Pennsylvania's Broken Goblet Brewing to announce "The Bryce is Right IPA." As a Mormon, Harper doesn't consume alcohol and has actually spoken out against it. In explaining the story of how the beer's label came to be, Broken Goblet owner Mike LaCouture says he explicitly did not reach out to Harper, his agent, or companies associated with The Price is Right because he didn’t see a small-run, taproom-only beer as a liability. Along with using a free font and color palette, LaCouture stresses he has no plans to distribute the beer. And even then, he says because the beer hasn't yet been brewed, he could still decide not to make it in the end.
"The artwork was a way for us to showcase the thought process and play on words, and the fact we're pretty overjoyed that this guy who used to be an enemy of Philadelphia is now a member of our sports family," LaCouture says. Until now, Harper played his whole career with one of the Phillies' biggest rivals, the Washington Nationals.
Ironically, almost exactly a year ago, Broken Goblet released a collaboration beer with Eagles football player Jason Kelce. That beer, named "No One Likes Us, We Don’t Care IPA” after Kelce's speech following the Eagles' 2018 Super Bowl victory, included permission and a signed contract with Kelce and his representatives. 10% of the beer’s profits were donated to the Make The World Better Foundation.
Aside from that approved brand, LaCouture says he's seen more than a dozen unapproved Eagles-themed beers at area breweries, including others playing off local sports teams like the Phillies and Flyers. Broken Goblet prepared the Bryce is Right label toward the end of February, when rumors started indicating the Phillies were the front-runner to sign the all-star outfielder.
"I don't think we're in any kind of rarified air because we're looking to celebrate when something happens from a sport's perspective," he says. "We're just a little bit faster than other breweries."
As a small and taproom-focused brewery—Broken Goblet made about 400 barrels in 2017—LaCouture says he saw the Bryce Harper-themed beer as a chance to gain attention for his brewery in a fun way. He also believes that Pease shouldn't receive any backlash for calling out the beer, because he says he never planned to adorn packages or kegs with the potentially problematic label.
"It's just my tiny, little brewery that's just saying 'welcome to the city, Bryce, this beer is for you,'" LaCouture says. "I really don't think it should rise to the level of anything more than this brewery doing this pretty cool thing and that's it."
The brewery is no stranger to toeing the line of copyright, however, and was featured last February in GBH after it released a carefully recreated Philadelphia Eagles logo for its Fly Eagles Fly-PA. Broken Goblet also released a beer in fall 2018 inspired by the Philadelphia Flyers' mascot, Gritty, who became a pop culture sensation last year. "Nightmare Fuel," a Cream Ale made with vanilla and orange, did get a blessing from the NHL as a one-time run and LaCouture says he got permission from the league.
In this latest iteration, it’s not just a case of legal or business challenges, but religious ones, too. Section 89 of the Church of Jesus Christ of Latter-day Saints’ Doctrine and Covenants states that the religion's prophet, Joseph Smith, wrote "as any man drinketh wine or strong drink among you, behold it is not good." From a legal standpoint, the beer could already be problematic if used in promotion or advertising, but add in Harper’s religious beliefs, and the whole thing gets even weirder, especially with public promotion from the head of the Brewers Association.
For what it’s worth, Harper acts as an investor and “grooming product aficionado and creative” for the Blind Barber chain of barbershops and grooming product manufacturer, which also serves cocktails at some of its locations. The BA did not respond to Good Beer Hunting’s request for comment.
Michael K. Fretwell, an associate attorney with Maryland's Laubscher & Laubscher, P.C., says the label "certainly violates rights on its face," but its potential assumption of parody or social commentary could also connect to First-Amendment rights, although not strongly. He notes that the use of Harper's likeness and The Price is Right trademarks could violate the Lanham Act, which prevents consumer deception through false associations.
"[The label] violates the Lanham Act for unfair competition against Harper and The Price Is Right, but also likely violates the Lanham Act for infringement of a federally registered trademark because the mark is similar enough to The Price is Right so as to cause confusion," he tells GBH.
There is some wiggle room via claims of free expression, and Fretwell says a court could find the imagery a parody, due to the commentary on Harper’s signing and the "game" of it all. However, the label's written description probably hurts the brewery in the end.
"It seems they are trying to create an association with Harper or just a general celebration of getting Harper in Philly," he says. "And not necessarily commenting on the bidding process and 'game' of the whole thing. That probably weighs against the brewery. Maybe even enough to no longer be shielded by the First Amendment. I think this is a toss-up."
The issue isn’t entirely cut-and-dry, Fretwell notes, but also highlighted a 2015 lawsuit won by Michael Jordan and a grocery store that was ordered to pay the NBA Hall of Famer $8.9 million because it used his name in an ad without Jordan’s permission.
Ashley Brandt, a Chicago attorney who works with breweries of all sizes and who also serves as GBH’s attorney, says this label is the latest example of a “rampant” problem for American breweries. Whether intentional or not, Brandt says efforts like Broken Goblet’s are misguided at best.
“There’s usually time and institutional knowledge to know you don’t go off and take someone else’s name,” Brandt says.
These kinds of decisions may also go against the Brewers Association’s Marketing and Advertising Code, which doesn’t directly address issues of trademark or copyright infringement, but does say that marketing by members “should be representative of the values, ideals and integrity of a diverse culture and free of any derogatory or discriminatory messages or imagery.”
As documented by Good Beer Hunting just over a year ago, the constant and blatant infringement on trademarks and a variety of intellectual properties has become something of an epidemic among America's small and independent brewers. At one point, an Instagram account was even established to highlight all the ways in which craft breweries were (un)wittingly breaking—or coming close to violating—state and federal laws.
However, because of the one-off nature of these kinds of beers and their small batch sizes, the general consensus, from a legal standpoint, is that breweries can often get away with these violations because it can be a greater hassle for a large corporation to seek legal recourse.
“From a strictly practical standpoint, it’s harder—or less likely—to receive a cease and desist, and especially a lawsuit, for a product that’s only sold once,” Brendan Palfreyman, who specializes in brewery trademarks as an attorney at Syracuse, New York's Harris Beach PLLC, told GBH at the time. “But I still don’t recommend taking the risk, even if it isn’t going to be high. Some major companies have enormous legal budgets, so it’s not as much an issue for them and they have set aside money for exactly this purpose.”
This latest example, given the direct shoutout from Pease, creates an ethical challenge for small and independent brewers—and their representative organization—who decry advertising from Big Beer, but who also take actions that could be seen as stealing intellectual property in lieu of paying for it. There was significant online backlash over Bud Light’s “#corntroversy” following Super Bowl ads that vaguely teased MillerCoors for using corn syrup, but relative silence in situations like the one with Bryce Harper and Broken Goblet. Pease’s shoutout also comes at a time when the use of “independence” as a selling tool is questionable.
In the 24 hours following Pease’s comment, Josh Chapman, co-founder of Black Narrows Brewing Co., was the only person to respond on Twitter, noting his frustration with such an endorsement.
“As small and independent producers, we place high value on the efforts of our labor,” he wrote to Pease on the platform. “Taking someone’s image, especially someone who’s a religious objector to consuming alcohol, and using it for profit shouldn’t be praised, let alone sealed w/ approval.”
In a conversation with GBH, Chapman admitted he was stunned nobody else replied. “Am I taking crazy pills?” he asked.
“I’m not the smartest guy in the room by any stretch, but I did find it odd that I was sure it would have been deleted—I kept checking and it was still there—and then the fact that nobody else had said anything,” he says. “I don’t understand how that’s an OK thing for the CEO and president of the Brewers Association to do at all.”
Black Narrows is a paying member of the Brewers Association, but doesn’t include the independent seal on crowlers or the brewery’s entrance for specific reasons like this, Chapman says. He believes the Brewers Association’s largest marketing effort to promote the value of “independence” doesn’t align with the personal or professional ethos of Black Narrows.
He called Broken Goblet’s move “blatant IP theft,” and believes there was clear intent beyond a pure community-building exercise, given that the label was ready to go immediately after Harper signed with the Phillies (which had been speculated for a couple weeks, but was far from a done deal). Separately, Broken Goblet's LaCouture emphasized to GBH that at no point did he say publicly The Bryce is Right would be packaged or released in a particular way, let alone brewed.
But as a practicing religious person, Chapman says he felt put off by the idea of potentially profiting off of something Harper has never promoted or even considers part of his life.
“He is arguably the most famous baseball player in America,” Chapman says. “If that’s the case, his religious background is clearly known, and that’s a very personal thing and it’s such big, cognitive dissonance for craft beer to monetize something that is a total affront to his religious beliefs.”
Given Broken Goblet’s success avoiding legal ramifications in the past, and the presumptive small and short nature of The Bryce is Right’s existence, there may not be any legal issues to face. There is some irony to it, however, given that Kansas City’s Boulevard Brewing Company announced at roughly the same time its official beer for its hometown Royals. Its ¡Vamos! Mexican Lager includes the baseball team's colors, images of its famous stadium and the Royals logo on every can. All done in a full, official partnership in time for Opening Day on March 28.