Bad idea of the day: copyrighting cocktails

By Felix Salmon
August 31, 2010
Chantal Martineau stopped to think about her timing, as she wrote her piece for the Atlantic on a movement pushing for the ability to copyright cocktails. Intellectual-property protection isn't getting great press this week, as Paul Allen has turned overnight into one of the world's most gruesome patent trolls.

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I wonder whether Chantal Martineau stopped to think about her timing, as she wrote her piece for the Atlantic on a movement pushing for the ability to copyright cocktails. Intellectual-property protection isn’t getting great press this week, as Paul Allen has turned overnight into one of the world’s most gruesome patent trolls.

But ever since the seven-year-old sitting next to you in elementary school put his arm around his paper to stop you from copying his work, humans have felt very protective of their ideas, and very angry at anybody who they think might be copying them. As a result, mixologists are now joining fashion designers in looking for copyright protection for their inventions.

It’s all very silly, not least because the last thing the world needs is bartenders suing each other over copying cocktails. Even Susan Scafidi, the person mostly responsible for pushing the ability to copyright fashion design, realizes that copyright is a pretty narrow and limited protection, and that we shouldn’t try to apply it willy-nilly to anything remotely creative. Here’s what she told me back in 2007, telling critics to look at “legal and social realities”:

Furniture is protected by design patents (overall shape), copyright (surface designs), and trademark — not to mention utility patents (innovative useful elements). One lawyer who represents a number of furniture clients described the process of protecting their designs to me as “triage,” identifying what needs to be protected and sending it to the appropriate government office. Cuisine has a small amount of protection from copyright (recipe collections), and much more from the social norms against copying among creative chefs, particularly when it comes to signature dishes. Since my father is a serious amateur magician (and I confess to having performed a bit myself years ago), magic tricks are my favorite inapposite example. Not only is the literature copyrighted, but many effects are deliberately kept secret by magicians, and unlike fashion can’t be torn apart at the seams by interlopers …

Every industry is unique, and most copyright protection is one-size-fits-all.

Cocktails are clearly closer to recipes — in fact they are recipes — than they are to the kind of things which are normally copyrighted, like books. What’s more, they don’t scale. Fashion designers can sell the same design at many shops and to many different customers around the world, just as publishers can sell the same book through thousands of different outlets. But a bartender can only make cocktails one at a time, and there’s no way that I’m depriving a bartender in DC of any revenue if I order one of her cocktails from a bar in New York. As a result, anybody trying to prove damages is going to face an uphill task.

The fact is that the current cocktail renaissance is coming about because, rather than despite, the fact that cocktail recipes are easily shared and remixed, and because the rise of blogs is making doing so easier than ever, helping drive a surge in demand for well-made, well-mixed drinks.

Mixologists like Eben Freeman who want copyright protection seem to me a bit like the small neighborhood coffee shops who got scared when a Starbucks opened up across the street — only to find that demand for their own good coffee went up, rather than down, as a result. The more people copy your cocktail, the more demand there will be for your cocktail, and the happier everybody will be. Embrace it, don’t fight it.

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Comments
7 comments so far

If a chef in NYC started mimicking a DC chef’s cooking, I think we’d agree that’s pretty obnoxious. The argument here might be that because similar social norms aren’t in place for bar tending, copyright needs to pick up the slack. (Really, there is some harm — that bartender would face some barrier moving to NYC, or opening a satellite bar.)

That being said, I’d rather live in a world where these harms took place than in one with copyrights on cocktails, however much it might stifle cocktail innovation.

Posted by absinthe | Report as abusive

Lists of ingredients and instructions for combining them, as you say, generally aren’t subject to copyright, although a lawyer will be happy to file any suit without a basis in law, as long as your check is good. For instance, we have that ridiculous situation with Jessica Seinfeld’s cookbook. She won, but still had to fight the case and the appeal, which is itself a travesty. This is one of the biggest problems with both the legal profession and our society.

A genuinely novel technique for making cocktails could qualify for patent protection, and if you can come up with something new in the field of ethanol consumption, you’ve certainly earned your patent. I’ll gladly pay you your royalty.

Posted by ckbryant | Report as abusive

Good point. I’ve been trying to figure out for years how patents on recipes stay valid. For example, do Coke execs really think that in 200 more years or something, there’s just going to be still that Coca Cola dominating the soft drink market, still protected by IP laws? The same goes for Pepsi, Frito-Lay, Keebler, Nabisco, Kraft, and other food companies. The Hatch Waxman Act should have covered this, and made way for fairer, more market-driven pricing in foods. Imagine if you will a world where this IP law really got out of control. Every dish of pad Thai, every spaghetti with meatballs meal, every glass of lemonade, every Arnold Palmer for sure, would be protected by a copyright or patent. We’d have to pay some old lady in the third world for her great-great-grandmother’s recipe or something ridiculous.

Engineers with law degrees should do something more honourable with their profession. They’re so smart and empirical, they can surely fix the courts! They can argue for empirical methods of case analysis, for a quantitative approach to admitting evidence, away from hearsay, away from qualitative methods, toward a more accurate and reliable legal system, but they don’t. The average patent attorney from the USA instead lords the impression of ultra-intelligence over people and they do get what they want at the expense of the consumer, and in the end, generally only because they want it. There’s plenty of theory and conjecture, evidence to suggest that limiting IP protections, nearly eliminating exclusive rights to produce, actually helps the market. It keeps oligopolies and monopolies down, it keeps competition alive, and it keeps economic theory like the free market around. Sure, on the plantation, in old Europe, among the hostile aristocracies of the Caucasian race, it is rare that anybody actually has a thought of their own, and when one of them actually works, all of the rest want to celebrate the once-in-a-blue-moon occasion, but plenty of people work and don’t get credit for it, so the old masters should probably play along a lot more.

Posted by adamt78 | Report as abusive

There’s a lot of nonsense going on here, though CKBryant seems to get it.

Copyright protection can only extend to the tangible expression of an idea, not the idea or information in it itself. You can own copyright in a book of recipes, or even the way a single recipe is expressed — but not in THE RECIPE. No one can stop another person from using the recipe unless it is actually patented, and though there are patents for certain novel ways to prepare few, they are very rare. So while the claim against Seinfeld’s wife may have been meritless, as many lawsuits are, there is nothing inherently preposterous about claiming infringement of a cookbook just as you can with any other book.

On the other hand, it is possible, in theory, for the name of a dish or food preparation to be protected by trademark.

Adamtt78 is very confused. Coca-Cola has been successful for over a hundred years, not because of patents, copyrights or trademarks (per se — the last two have certainly helped) but because of trade secrets. You can have exclusive rights to a formulation, invention or anything forever as long as you keep it secret, which Coke has essentially done. That’s where trademark steps in: If a container bears the Coca-Cola trademark, you know you’re getting the “Real Thing.” There is certainly nothing wrong with that.

Virtually nothing about the other foods he refers to are protected by intellectual property, and in most cases there is little secret to how these foods are made, either. But “brand” prepared foods remain successful in the market as long as tastes do not change (or they change with them) because of an investment in the quality of ingredients and quality control. Some store brand Frito-type chips are as good as Frito’s, but most aren’t — you pay less because you get less. But the IP laws have nothing to do with this. The second paragraph in his comment is just a jumble of even more egregious misinformation.

Posted by roncoleman | Report as abusive

I would allow bars to trademark the names of their drinks, but not copyright the recipes.

For the most part, bar drinks are not unique. It is extremely rare to find someone selling a drink that someone else wasn’t already selling somewhere else.

If they want to protect their “unique” drink, they can go the Coca-cola route and use trade secret laws to protect their special mix.

Posted by kd7fds | Report as abusive

It’s quite well established that only non-functional elements can be copyrighted. I’m not quite sure what that would leave to protect for a cocktail. Perhaps the particular way you shake or swirl it, but most definitely not the ingredients, quantities, and the basic outline of steps followed.

The examples given from fashion and surface design are inapplicable. These are non-functional, that is, design, elements. The ingredients and basic preparation method of a cocktail is functional.

Posted by JoelKatz | Report as abusive

How is this any different than when Moe stole The Flaming Homer?

Marge: So, Mr. Hutz, does my husband have a case?

Hutz: I’m sorry, Mrs. Simpson, but you can’t copyright a drink.

Homer: [whines] Oh!

Hutz: This all goes back to the Frank Wallbanger case of ’78. How about that! I looked something up! These books behind me don’t just make the office look good, they’re filled with useful legal tidbits just like that!

Posted by JeffChef | Report as abusive
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