Comments on: Bad idea of the day: copyrighting cocktails A slice of lime in the soda Sun, 26 Oct 2014 19:05:02 +0000 hourly 1 By: JeffChef Wed, 08 Sep 2010 16:55:50 +0000 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!

By: JoelKatz Mon, 06 Sep 2010 23:36:13 +0000 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.

By: kd7fds Fri, 03 Sep 2010 15:24:03 +0000 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.

By: roncoleman Thu, 02 Sep 2010 13:16:15 +0000 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.

By: adamt78 Wed, 01 Sep 2010 02:13:20 +0000 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.

By: ckbryant Tue, 31 Aug 2010 18:51:12 +0000 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.

By: absinthe Tue, 31 Aug 2010 18:12:04 +0000 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.