Drink Up: Cocktails Don't Need Nor Deserve Copyright Protection

from the down-the-hatch dept

Back in September, we wrote about a somewhat angry bartender who has been complainiing about how bartenders should be given special intellectual property rights over new drink creations they come up with. We explained at the time what a silly idea that was, and now Kal Raustiala and Chris Sprigman -- two law professors who have been doing tremendously good work showing all the areas where creativity and innovation thrive sans copyright protections -- have stepped up to discuss the question of copyright in cocktails. Once again, they highlight that there's little, if any, evidence of the need for such a special right. In fact, they note that there's been an amazing burst in creativity in drinks over the past few years. They point out that since each cocktail is handcrafted, and can vary based on who's making it, it's pretty silly to limit a certain mix to only one bartender. Furthermore, they note that (with the exception of that one angry bartender, Eben Freeman) the general culture around bartending is for bartenders to share and exchange drink ideas, so that they can learn from each other and improve on each other's works.

As an aside, the article introduced me to a concept I had not heard of before and now (tragically) cannot erase from my mind: the McNuggetini. You can watch the video below, but I warn you ahead of time, you're probably much better off in life if you don't:


Reader Comments (rss)

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  •  
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    Designerfx (profile), Dec 28th, 2010 @ 1:15pm

    comedy

    apparently those individuals posted this back in december 2009, approximately.

    http://curiology.com/blog/

     

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    Anonymous Coward, Dec 28th, 2010 @ 1:16pm

    Except potentially for establishments looking to have a marketing edge (Flaming Moe, anyone?), there isn't much desire to protect the mixing of drinks because there is no economic incentive to do so. Rather, the economic incentive is to make them widely available and widely consumed, because the money only comes in when they are consumed.

    It is incredibly hard to compare the sale of drinks with the sale of IP, because it isn't the IP that has the real finacial value. It is the booze sold that makes the world go around.

    To make it match to music, you would have to say that the songs have little value, but the plastic discs are what everyone really wants. That is pretty much a fail.

    So it's a nice story, but they seem to have failed to look at the basic economics of the whole deal.

     

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      Jay (profile), Dec 28th, 2010 @ 1:38pm

      Re:

      But how is this story any different than the unknown costs of IP protection? There's more economic evidence in the proliferation of piracy being beneficial rather than a detriment.

       

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        Anonymous Coward, Dec 28th, 2010 @ 4:06pm

        Re: Re:

        The story is entirely different because the economic motivations are different.

        Pirating a drink doesn't change anything for the drink companies, they still sell booze. New drinks might be something someone wants to try. Most of the "drink innovation" has come only from adding flavor essences to the booze, and not much more.

        The bars and bartenders are also on the same side of the deal, they want to sell booze. They aren't selling t-shirts or hoodies and giving the booze away for free, they are selling booze.

        Basically, the booze makers, and the booze sellers are on the same wavelength. They are on the same team, working together to sell more booze and for both of them to make more money.

        Music? Well, simple problem: piracy isn't of the idea of the product, it is of the product. People aren't getting free beer nuts, they are getting free beer. Can you imagine if bars gave all the booze away for free hoping to sell t-shirts and charged $10 to use the washroom? Sort of a pointless way to do things.

        That being said, a number of companies do have patent processes for making their booze and there are patents pending or existing for methods to flavor booze or to create various concotions. Perhaps you have to look where actual differences are being made in order to see where the IP action really takes place.

         

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          Anonymous Coward, Dec 28th, 2010 @ 6:42pm

          Re: Re: Re:

          So you agree copyright is not about artists is about companies right?

          Else the first thing you would have noticed is how the cocktail dude was not getting paid for his work.

           

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          Lawrence D'Oliveiro, Dec 28th, 2010 @ 10:03pm

          Re: Itís Different Because Itís Different

          Pirating a drink doesn't change anything for the drink companies...

          Clever strawman, but itís not the ďdrink companiesĒ weíre talking about here.

          The bars and bartenders are also on the same side of the deal, they want to sell booze.

          Thatís like saying the record companies just want to sell plastic.

          The story is entirely different because the economic motivations are different.

          In other words, itís different because itís different. Nice case of circular reasoning!

           

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            Anonymous Coward, Dec 28th, 2010 @ 11:29pm

            Re: Re: Itís Different Because Itís Different

            You almost got the point, but just missed it.

            Economic motivations are key in understanding any system. There are reasons why different systems work in different ways.

            The IP of a mixed drink isn't anything special, because that isn't really what they are selling. Neither the bars nor the booze companies many any real money on selling recipes. They make money on selling booze. They have the same motivations, to get the most people drinking the drinks with the highest margin booze possible. As a group, they lose money if you aren't able to get a vodka martini in every bar. There is no economic reason to want to protect the making of a mixed drink. They are selling an underlying product, booze - the mixing of drinks is just a fancy cover for it.

            In the music business, they aren't selling plastic, they are selling music. Music is unique. Rihanna music isn't the same as Trent Reznor music. They are not selling the underlying product (plastic disks or 1s and 0s), they are selling the music. Each music is unique to itself, and people will actively seek out the music they like, because it is extremely unique in their minds.

            In simpler terms, music is an IP business, with the money made because of sales of rights to a copy of the IP. The booze business is in the business of selling booze, and hard product. The IP isn't what is being sold directly to the public, just booze.

             

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              vivaelamor (profile), Dec 29th, 2010 @ 1:20am

              Re: Re: Re: Itís Different Because Itís Different

              "The IP of a mixed drink isn't anything special, because that isn't really what they are selling."

              It is part of what they are selling. If it weren't a factor then they wouldn't bother to mix drinks at all. Your distinction appears to be 'well, people just buy alcohol to get drunk', which is false. You may as well say that people buy music just to hear noise, which is also false. If someone buys a music box then the chances are that the box itself is as important, if not more, than the tune it plays. That doesn't make the tune any less copyrightable. If a band plays live then the performance is still copyrightable in many countries, whether people came for the music or the live show.

              A cynical person might think that the reason you'd make a distinction this arbitrary is to distance current IP protections from industries that are doing fine without them.

               

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                Anonymous Coward, Dec 29th, 2010 @ 7:39am

                Re: Re: Re: Re: Itís Different Because Itís Different

                You too missed the point, but only slightly this time.

                Most drink mixes are common and well known. Many were created by bartenders and published around the world. Others were created by the booze companies themselves and published.

                It is enlightened self-interest, they want to sell the most booze possible, and away you go. It isn't "people want to get drunk", it is just people want to consume alcohol, and most of the consume mixed drinks that are pretty standard and commonly known.

                Your music box example isn't entirely logical, because you are confusing the use of a trademarked item with the making of it. A music box is a method by which to enjoy the music product. It would be like saying people don't buy booze, they buy glasses. The glasses are just a method by which the product (booze) is enjoyed.

                The distinction isn't arbitrary at all. You are confusing what the product is for each industry. The booze industry is in it to sell booze, the music industry is in it to sell music. The distinction comes when you look at booze, which is a 1000 year old concept, long since in the public domain, and music, which is new every time a new song is written, and the performance of such is copyright because it is unique. Drink mixes are not particularly unique, as they follow prior art (booze + flavoring in various combinations).

                Now, someone companies / bars / establishments do get trademarks on the look and feel of the presentation of their drinks, the name, or similar. Booze companies do hold patents on infusion and filtering methods that they might use. But trademark is a different question altogether.

                 

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                  vivaelamor (profile), Dec 29th, 2010 @ 1:38pm

                  Re: Re: Re: Re: Re: Itís Different Because Itís Different

                  "Your music box example isn't entirely logical, because you are confusing the use of a trademarked item with the making of it."

                  How is trademark even relevant here?

                  "A music box is a method by which to enjoy the music product. It would be like saying people don't buy booze, they buy glasses. The glasses are just a method by which the product (booze) is enjoyed."

                  Yet many people collect glasses, as they do music boxes. If utility was the only factor then why would anyone even have a music box when they already have a stereo?

                  "The distinction comes when you look at booze, which is a 1000 year old concept, long since in the public domain, and music, which is new every time a new song is written, and the performance of such is copyright because it is unique. Drink mixes are not particularly unique, as they follow prior art (booze + flavoring in various combinations)."

                  The more you go on the less inclined I am to reply as your ignorance speaks for itself. I don't even drink alcohol and I know that every wine is considered unique by many who drink it.

                  "But trademark is a different question altogether."

                  I figured you had just mistakenly put trademark instead of patent the first time around. Now I'm inclined to think that you don't even know the difference.

                   

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              Anonymous Coward, Dec 29th, 2010 @ 8:47am

              Re: Re: Re: Itís Different Because Itís Different

              I've taken the core of your argument and replaced drink references with, as I believe, equivilant music references. If you notice, you now sound like you are contradicting your later statements about music being different. Music is a recipe of noise that sounds appealing, just as a good drink is a recipe of liquids that tastes appealing. Why should music be considered IP when similar products are not?

              "The IP of a noise (mixed drink) isn't anything special, because that isn't really what they are selling. Neither the artists (bars) nor the Record Labels (booze companies) many any real money on selling Music (recipes). They make money on selling noise (booze). They have the same motivations, to get the most people listening (drinking) to the noise (the drinks) with the highest margin noise (booze) possible. As a group, they lose money if you aren't able to get a metallica (vodka martini) in every bar. There is no economic reason to want to protect the making of music (a mixed drink). They are selling an underlying product, noise (booze) - the mixing of noise (drinks) is just a fancy cover for it."

               

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                Anonymous Coward, Dec 29th, 2010 @ 8:54am

                Re: Re: Re: Re: Itís Different Because Itís Different

                by the way bar tending is a simplistic form of alchemy. There are numerous drinks that because of the precise mix of ingredients are able to taste the way they do; the German Chocolate Cake shot. Simplistically this shot is make with a 1/1 drink mix when poured into a mouth containing the juice of a sugar coated lemon wedge. However the more alcohol used in comparison to the size of the lemon and amount of sugar used, the less like a cake it tastes and the more like a really crappy alcoholic drink.

                 

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                Anonymous Coward, Dec 29th, 2010 @ 9:10am

                Re: Re: Re: Re: Itís Different Because Itís Different

                No, you keep trying, but it doesn't work out that way. You are confusing a unique product (a song and performance of) with a non-unique product (say, vodka). As soon as you start down that road, you have failed.

                Now, if music was replaced by white noise, example, you might have a hope. But then the white noise is a non-unique product.

                Your simple minded attempt to re-word my point fails rather dramatically.

                 

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                  Anonymous Coward, Dec 29th, 2010 @ 1:13pm

                  Re: Re: Re: Re: Re: Itís Different Because Itís Different

                  you're forgetting one point, music is not a performance. Also music is merely a complex combination of musical notes, or sounds, that are combined in a form that is pleasing to the listener. As proven you no longer need a band to create complex music, all you need is software that will allow you to mix notes together and synthesize a band.

                  I agree with you that the live concert performance is completely different than, and cannot be compared to a mixed drink. However we are not talking about a live concert performance, we are talking about a mass produced private electronic reconstruction of a combination of sounds orchestrated in a pleasing order.

                  Granted this is an over simplification of music but; if I wrote the song notes a-b-c-g and found it to be pleasing when played at the right tempo and repeated for approximately four minutes that is a song. Currently I have a legal right to protect the profits I could earn from that song by not allowing it to be reproduced without my permission.

                  Does that clarify the position?

                   

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      weneedhelp (profile), Dec 28th, 2010 @ 2:03pm

      Re:

      Flaming Moe, anyone? Dont you mean Flaming Homer? Didnt Moe "borrow" the recipe from Homer?
      http://en.wikipedia.org/wiki/Flaming_Moe%27s
      Moe's execution of Homer's idea made it famous. Had Homer locked up the idea, it would never have been famous.

       

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        Huph, Dec 28th, 2010 @ 2:14pm

        Re: Re:

        I believe the quote you're looking for is:

        "Well, it's hard to say. He may have come up with the recipe, but I was the one who came up with the idea of charging $6.95 for it!"

         

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      Anonymous Coward, Dec 28th, 2010 @ 6:29pm

      Re:

      "It is incredibly hard to compare the sale of drinks with the sale of IP, because it isn't the IP that has the real finacial value. It is the booze sold that makes the world go around."

      No it is not, if I was a copyright maximalist what I would do is claim "See, there is no market for copyrighted cocktails right now and people are loosing money they could be getting by licenses. Imagine all those bars having to pay me a thousand dollar license to be able to sell something!"

      The actual drink is just a like the plastic disc, it is the meaningless part of the deal the real commodity here is the idea.

      That is why copyright is retarded.

       

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        Anonymous Coward, Dec 29th, 2010 @ 7:43am

        Re: Re:

        The actual drink is just a like the plastic disc, it is the meaningless part of the deal the real commodity here is the idea.

        The basic idea is "booze + flavor", which has been in common use for hundreds if not thousands of years. So the idea is old. People aren't buying an idea or a performance, they are buying the product ("booze + flavor").

        If someone could product a drink that has absolutely no prior art (no "booze + flavor"), they might be able to get a patent. But since everyone is going over the same tired ground, over and over again, there is nothing new going on. Adding a frilly umbrella or serving it in a different colored glass doesn't make a new product, it is just the old product. Sort of explains why the TD version of innovation doesn't hold water either.

         

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    Rob Bodine (profile), Dec 28th, 2010 @ 1:39pm

    Patent Protection

    "Special" intellectual property rights would hardly be necessary. Specific mixes would fall squarely under existing patent protection, though good luck getting a patent on a Dark 'n Stormy, et al. :-)

     

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    Ethan Stone, Dec 28th, 2010 @ 1:39pm

    Trade Secret

    If you want to keep rights in a cocktail, all you have to do is keep the recipe secret (and figure out a way to prepare it without the patrons being able to observe what you're doing). Admittedly, not as fun as declaring your rights, but it will get the job done if the recipe is really valuable . . .

     

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      Rob Bodine (profile), Dec 28th, 2010 @ 1:42pm

      Re: Trade Secret

      Ah, yes. Trade secrets. The forgotten 4th area of intellectual property that even IP attorneys sometimes forget. Of course, it's not *really* a trade secret unless you have an NDA, but keeping your own mouth shut has the same effect. :-)

       

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        :Lobo Santo (profile), Dec 28th, 2010 @ 1:53pm

        Re: Re: Trade Secret

        It's all about the secrets.

        Skip the patent, and don't tell anybody else how to do it. There you go, easy monopoly--until somebody else figures out how to do it. ; P

         

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      Mike C. (profile), Dec 28th, 2010 @ 2:11pm

      Re: Trade Secret

      Even that won't work because given enough samples (i.e. drinks bought), somebody with a discriminating palate is bound to figure out the recipe. The only real way to prevent an idea from being shared is to keep it to yourself. If you want to share, be ready to have someone use your idea in a way you didn't intend and probably in a way you don't like.

       

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        Anonymous Coward, Dec 28th, 2010 @ 4:53pm

        Re: Re: Trade Secret

        You don't even have to have a palate, many times the ingredients are listed on the menu (though not the measurements).

        I frequent a restaurant so regularly that they know me by my 'drink' name. Ingredients of the drink (only 2 of 'em) are on the menu - it's why I ordered it in the first place years ago.

        Recently a I discussed it with a waitress there, how I'd tried to make it at home with no success, and she instructed me exactly how to do it and also the brands of liquor used. Guess what? STILL doesn't taste the same as it does when I order at the restaurant, possibly because someone else is making it, heh.

        I love that place, my loyalty is absolute. I tip well, I eat there at least once a week, I bring in new customers, I talk the place up.

        Can copyrighting that drink do the same?

         

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          Anonymous Coward, Dec 28th, 2010 @ 6:39pm

          Re: Re: Re: Trade Secret

          Copyright would create a new class of artists.

          The cocktails dude's, they would go about and charge every establishment that sells alcoholic beverages to pay them or else, surely they don't need your tips after that.

          Exactly what some musicians and film makers are doing it right now.

           

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            Anonymous Coward, Dec 29th, 2010 @ 7:24am

            Re: Re: Re: Re: Trade Secret

            Ha! I can see someone copyrighting their version of any ages-old cocktail by adding one secret step, like a teaspoon of water.

             

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    Anonymous Coward, Dec 28th, 2010 @ 1:42pm

    I think their faces when they drank that shake is very telling.

     

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    abc gum, Dec 28th, 2010 @ 2:02pm

    Drinks are made iaw a recipe and recipes iirc are not given protection under copyright or patent. I remember reading about a case where the presentation of the recipes was protected, but not the recipes themselves.

     

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    Stevo Darkly, Dec 28th, 2010 @ 2:05pm

    When each girl took a swig directly from that bottle of vodka, she became, in that instant and by virtue of that act, a candidate for becoming my future wife.

     

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      Anonymous Coward, Dec 28th, 2010 @ 6:35pm

      Re:

      Dude, wait until you get old with that girl still drinking from the bottle of vodka and see if you will endure having somebody lay down besides you barfing and stinking alcahest from all her pores.

      When we are 20 that is cool, at 30 starts to get annoying and at 40 people just look at you funny if you are still doing it, usually with the comments "It is just and old drunk fool".

       

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    PW (profile), Dec 28th, 2010 @ 2:07pm

    Mixologists as funny as Fashionistas?

    What truly scares me about this idea of copyrighting drinks is that while it sounds utterly ridiculous, so did Fashion patents and today those have become a reality. From the ol' adage, "when the going gets weird, the weird turn pro", I'd change the last word "pro" with "IP entitled" ;)

     

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      Anonymous Coward, Dec 28th, 2010 @ 11:32pm

      Re: Mixologists as funny as Fashionistas?

      That is what the TD types would like you to think. In order to discredit the concepts of copyright, they will try to scare you into thinking that it could expand to anything. Thankfully, the basic economics of the situation dictate otherwise. I am sure some MBA type will come along and say I am wrong, but deep down he knows I am right.

       

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        Anonymous Coward, Dec 29th, 2010 @ 7:27am

        Re: Re: Mixologists as funny as Fashionistas?

        Please point to where copyright has been lessened and not expanded in the past 50 years and ease everyone's minds.

         

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          Anonymous Coward, Dec 29th, 2010 @ 7:46am

          Re: Re: Re: Mixologists as funny as Fashionistas?

          please point out where copyright has expanded to cover product types there were already existing in the past and suddenly became copyright after the fact. No, not "public domain clawbacks", but actual addition of a category that was previously public.

          Waiting... good luck :)

           

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            abc gum, Dec 29th, 2010 @ 8:38am

            Re: Re: Re: Re: Mixologists as funny as Fashionistas?

            Please point out where recipes are allowed protection under the copyright provisions.

             

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            vivaelamor (profile), Dec 29th, 2010 @ 1:28pm

            Re: Re: Re: Re: Mixologists as funny as Fashionistas?

            "please point out where copyright has expanded to cover product types there were already existing in the past and suddenly became copyright after the fact."

            I cba to provide a link, frankly, but off the top of my head I'd point out that copyright did not originally apply to sound recordings.

             

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    Mr.Smarta**, Dec 28th, 2010 @ 2:24pm

    Drinks like this are nothing new. Drink IP would force people to make new drinks, like the "Rocky Mountain Pearl". Similar to the McNuggetini, except it's a vanilla shake mixed in with banana schnapps and rum with a glass rimmed with Pennzoil 10w30 garnished with a sheep's hairy testicle. I'd never try it, but somebody would.

    Point is, you'd have bartenders making some really bad stuff together. Best to just stick with what you know.

     

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    Esahc (profile), Dec 28th, 2010 @ 2:37pm

    "I warn you ahead of time, you're probably much better off in life if you don't"

    I should have listened.

     

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    Paul Hobbs (profile), Dec 29th, 2010 @ 6:50am

    Einstein, Newton, Picasso, Mozart....

    And now we can add Alie Ward and Georgia Hardstark to the list of geniuses who see what others don't, and in so doing enrich our lives in so many ways!

     

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    Tom Landry (profile), Dec 29th, 2010 @ 3:26pm

    These two chicks are awesome. What a great concept for a short video.

     

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