Whiskey Sour: An IP Evaluation of Nathan Green's Contribution to Jack Daniel's Whiskey and how that Contribution Led to an Inequitable Distribution of Generational Wealth

Marquette Intellectual Property Law Review Volume 24 Issue 1 Article 6 Winter 2020 Whiskey Sour: An IP Evaluation of Nathan Green's Contribution to Jack Daniel's Whiskey and how that Contribution Led to an Inequitable Distribution of Generational Wealth Emmanuel Onochie Follow this and additional works at: https://scholarship.law.marquette.edu/iplr Part of the Intellectual Property Law Commons, Law and Race Commons, and the Legal History Commons Recommended Citation Emmanuel Onochie, Whiskey Sour: An IP Evaluation of Nathan Green's Contribution to Jack Daniel's Whiskey and How that Contribution Led to an Inequitable Distribution of Generational Wealth, 24 Marq. Intellectual Property L. Rev 1 (2020) This Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Intellectual Property Law Review by an authorized editor of Marquette Law Scholarly Commons. For more information, please contact . ONOCHIE_FINAL_MACROED (DO NOT DELETE) 8/14/20 9:49 AM WHISKEY SOUR: AN IP EVALUATION OF NATHAN GREEN’S CONTRIBUTION TO JACK DANIEL’S WHISKEY AND HOW THAT CONTRIBUTION LED TO AN INEQUITABLE DISTRIBUTION OF GENERATIONAL WEALTH EMMANUEL ONOCHIE I. INTRODUCTION ............................................................................................ 67 A. Historical Context ........................................................................... 68 B. Who Was Nathan “Nearest” Green?............................................... 68 II. NATURE OF GREEN’S CONTRIBUTION........................................................ 69 A. Jack Daniel’s Distillery’s First Master Distiller ............................. 69 III. IP EVALUATION OF GREEN’S CONTRIBUTION .......................................... 70 A. Overview of Calculations ............................................................... 70 B. Discount Cash Flow (“DCF”) Method ........................................... 71 1. Calculating Expected Cash Flow (“CF”) ................................. 72 2. Increased Risk-Adjusted Discount Rate................................... 73 IV. GENERATIONAL WEALTH INEQUALITIES ................................................. 74 V. CONCLUSION .............................................................................................. 75 I. INTRODUCTION “I not only use all the brains that I have, but all that I can borrow.”1 –WOODROW WILSON “[U]ntil the lions have their own historians, the history of the hunt will always glorify the hunter.”2 –CHINUA ACHEBE 1. Woodrow Wilson Quotes, BRAINYQUOTE, https://www.brainyquote.com/quotes/woodrow_wilson_161750 [https://perma.cc/2RK7-RX9H] (last visited Jan. 21, 2020). 2. Chinua Achebe and the Bravery of Lions, NPR: THE TWO-WAY (Mar. 22, 2013), https://www.npr.org/sections/thetwo-way/2013/03/22/175046327/chinua-achebe-and-the-bravery-oflions [https://perma.cc/JG57-5R2U] (quoting a 1994 interview with Chinua Achebe in the Paris Review) (internal quotation marks omitted). ONOCHIE (DO NOT DELETE) 68 8/14/20 9:49 AM MARQ. INTELL. PROP. L. REV. [Vol. 24:1 Intelligence is man’s greatest strength. Historically, significant intellectual contributions have come from the voiceless. American slavery brought about an institutional exploitation of ideas and intellectual contributions in a systematic effort to dehumanize and control a group of people. 3 The story of Nathan Green, the man responsible for teaching Jack Daniel how to make whiskey, is a story that illustrates the impact that these institutional exploitations have had on the transfer of generational wealth along racial lines. A. Historical Context In 1858, the Attorney General issued an opinion that denied a slave owner’s patent application for a machine that was invented by a slave.4 The application was denied because a slave was not considered a person, and the slave owner was not the true inventor; thus, neither of them had legal grounds to take the required patent oath.5 The Attorney General also denied another patent application by a free African American because, under Dred Scott, he was not a citizen of the United States.6 Ultimately, African Americans were not afforded any protections for the fruits of their intellectual labor. B. Who Was Nathan “Nearest” Green? Nathan “Nearest” Green was born into slavery circa 1820.7 As a young man, Green was owned by a firm called Landis and Green.8 Green was then rented to Dan Call, a local wealthy preacher and distiller.9 Green began to learn the art of distilling whiskey at Call’s distillery.10 Call introduced Green to a young Jack Daniel, and Green was tasked with teaching Daniel how to make 3. See Tina Pequeno, The Dehumanization of Slaves and Slave Holders, U. HOUS.–CLEAR LAKE (Nov. 16, 2004), http://coursesite.uhcl.edu/HSH/Whitec/LITR/4232/models4/projects/proj04/rp04pequeno.htm [https://perma.cc/P6YP-RMLH] (last visited Mar. 19, 2019) (providing a sample student research project from LITR 4232: American Resistance). 4. Brian L. Frye, Invention of a Slave, 68 SYRACUSE L. REV. 181 (2018). 5. Id. 6. Id.; see also Scott v. Sandford, 60 U.S. 393, 452 (1857). 7. About Nearest Green, NEAREST GREEN FOUNDATION, https://www.nearestgreen.com/about-nearest-green/ [https://perma.cc/U7HA-SMT3] (last visited Mar. 19, 2019). 8. Clay Risen, Jack Daniel’s Embraces a Hidden Ingredient: Help from a Slave, N.Y. TIMES (June 25, 2016), https://www.nytimes.com/2016/06/26/dining/jack-daniels-whiskey-nearis-greenslave.html [https://perma.cc/UD7Z-Q8B3]. 9. Lizzy Alfs, Ex-Slave Who Trained Jack Daniel Gets New Recognition, USA TODAY (July 21, 2017), https://www.usatoday.com/story/money/nation-now/2017/07/21/ex-slave-who-trainedjack-daniel-gets-new-recognition/498391001/ [https://perma.cc/V6UR-3MKU]. 10. Id. ONOCHIE_FINAL_MACROED (DO NOT DELETE) 2020] WHISKEY SOUR: AN IP EVALUATION 8/14/20 9:49 AM 69 whiskey.11 In 1866, Daniel took over Call’s distillery, and Green continued to work with Daniel as he established the first registered distillery in the country.12 Green ultimately became the first Master Distiller in Jack Daniel’s Distillery’s history, and there is no record showing that Daniel ever actually owned Green.13 II. NATURE OF GREEN’S CONTRIBUTION This article is not meant to be an exact measurement of how much Nathan Green would be entitled to for his contribution to Jack Daniel’s Whiskey. Such a calculation would prove too difficult, if not impossible, because the passage of time presents too many unknown variables. Instead, this article places a rough quantitative estimate on the value of Green’s knowledge if he was afforded the same opportunities as his white counterparts. First, this article will analyze the significance of Green’s contribution to Jack Daniel’s Whiskey. Second, the Discount Cash Flow (“DCF”) Method will be used to place a monetary value on Green’s knowledge of whiskey. Finally, this article uses Nathan Green’s story to discuss how a lack (...truncated)