What The Continuous Flourishing Of New Cocktails Can Teach Us About Intellectual Property

from the i'll-have-another dept

Ok, time to make a brief admission, oh Techdirt faithful. You see, we talk a great deal on this site about intellectual property and, while it certainly isn’t a 100% thing, the most common topics in the discussion are movies, music, and books, particularly when it comes to copyright. Here’s the problem: I’m not much of a customer for any of those things. I listen to almost no music as a talk radio junkie, my movie-viewing habits amount to seeing perhaps 3 films or so a year, and I write way more than I read these days. Even then, my reading habits tend to be from sources that are either free or in the public domain. So, while I care a great deal about intellectual property laws in this country, I tend not to have much interest in the practical applications as discussed here.

But that doesn’t mean I don’t still run into an IP law topic that does involve something I love dearly, something for which I could find no replacement in this little life of mine. Something that, were it to find itself suddenly locked up in a way that prevented me easy access, I might just lose my mind. I am speaking, of course, about alcohol. Cocktail recipes, thankfully, are famously not covered by copyright, which is why it’s fun to see a legal explanation about how they’re flourishing anyway.

If it has been accepted for at least two centuries that – absent state intervention – the fruits of intellectual labor are non-rivalrous and non-excludable, who but “a blockhead” would invest effort in concocting a commendable cocktail? Why, the free-riding barman next door is simply going to pilfer your tipple, put a foolish little umbrella in it and call it his own! Hence, new cocktails ought to be in scarce supply. But the problem is, they’re not. Even after we largely wiped out our collective wisdom of creative imbibing with 14 years of Prohibition, we’re knee-deep in cocktail recipes. Why is this?

Part of the answer can be found in Kal Raustiala and Chris Sprigman’s wonderful book, The Knockoff Economy, which lawyer Matt Schruers goes into with a nice little nod. It isn’t just the absence of copyright that separates the world of cocktails from major media entertainment, the entire culture of alcohol and bartending is like a music and movie bizarro world, where the entire culture depends on freely sharing drink recipes, garnishment strategies, and success rates with different drinks. The result is not only that great drinks find notoriety, new or otherwise, but the other result is industry norms in bartending springing up organically to take the role of what otherwise would be government intrusion.

Like fashion, the industries for both stand-up comedy and culinary art, including cocktails, see considerable development of new ideas. In both cases, industry norms – not laws – govern copying. The formal code of ethics of culinary professionals, Raustiala and Sprigman note, requires attribution. (This has not forestalled the occasional demand for a sort of recipe copyright, designed to overturn the conventional rule that recipes do not qualify for copyright.). A second cause for cocktail innovation is that recipes sell the product. Here, the intellectual labor is undertaken at a loss to promote a spirit. Today, many spirits manufacturers employ “brand ambassadors,” generally bartenders, to evangelize their product by devising and demonstrating new applications for it. Third, cocktails may be developed for reputational gain. A bartender may want his work to spread, because being known for his craft draws patrons to his establishment, and improves his job marketability. Of course, this why in cocktail arts, as in cuisine, attribution norms receive greater emphasis.

If any of this is beginning to sound familiar to you, it should be, because this is the exact route the music and movie industries are being pushed into. You could replace “cocktail” above with “recorded music” or “film” and most of the statement would still work without any further edits. Musical sharing and attribution to drive up notoriety, with recordings given away to promote scarce seats at concerts, while creative output is achieved to build up the brand as well. The synergy is quite striking.

But the real point is that creative output is flourishing without copyright. Of course no industry is exactly the same as another, but who is really ready to say they’re sure the same wouldn’t occur with music and movies? After all, copyright is supposed to “promote the progress” and it seems like there are places where we judge it to be unnecessary to achieve that goal. Why not try it in music and movies?

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Comments on “What The Continuous Flourishing Of New Cocktails Can Teach Us About Intellectual Property”

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out_of_the_blue says:

Ooh, me! "who is really ready to say they're sure"

I’M SURE, TIMMY. — Listen, kids, making a $100 million dollar movie is NOTHING like mixing drinks. You can’t even make a low-budget knockoff movie without exerting a hundred times as much intellect over mixing drinks.

So, congratulations, Timmy, for yet another new low. More jaw-dropping than awe-inspiring. You keep digging deeper into worthless pits and wondering why you don’t strike gold.

I’m also sure this tripe would only occur to an alcoholic under the influence.

That One Guy (profile) says:

Re: Re: Ooh, me! "who is really ready to say they're sure"

No no, see, when blue or one of the other trolls/spammers dive straight into the ad-homs, that’s their way of waving the white flag and admitting that they have no real counter to the evidence presented.

So while the words may be different, it’s basically their way of saying ‘good article, I can’t think of any real objections or pieces of counter-evidence to what’s been said, so you’re probably right.’

lfroen (profile) says:

Re: Re: Ooh, me! "who is really ready to say they're sure"

What is to discuss here? Article is kind of “duh!” moment – cocktails have no copyright, therefore there’s lots of them. Now, since there’s lots of new movies, that’s must be because them have no copyright too. No, wait a minute, movies DO have copyright.
So, “What The Continuous Flourishing Of New Cocktails Can Teach Us …” – nothing really, except as ootb pointed out, mixing drinks is somewhat different than making movies.
Sometimes copyright makes sense, other times it doesn’t. Like any other concept humans invented.

ottonomy (profile) says:

Re: Re: Re: Ooh, me! "who is really ready to say they're sure"

Except, that you can’t compare to how many novel drinks would be created in today’s context (except WITH IP protection for recipes) or to the number or quality of movies made in today’s context (except WITHOUT IP protection for movies). The best you can do is compare contexts, try to generalize and measure IP’s effects. You have to compare apples to oranges as best you can because you can’t compare apples to apples.

People will create new things whether or not they are granted a protected monopoly on their ideas. Both the examples of movies and cocktails show this. The character of what they create may differ. We’re trying to figure out the rules of what works in different contexts, and how to create a culture (and law) that supports creativity and provides the fruits (and fruity garnishes) of that creativity to the people.

Richard (profile) says:

Re: Ooh, me! "who is really ready to say they're sure"

Just want to note that, ad hominem arguments and (trollishly yikes-level) vitriol aside, the observation that it’s a bit of a stretch(ed analogy) from mixed drink to commercial music and movies is not unreasonable. The article was interestingly offbeat, squinting-and-head-a-tilt insightful, and entertaining – not the prescription for a serious normative model by which to direct copyright reform.

Let’s all just Keep Calm and Have Cocktails.

Anonymous Coward says:

Re: Re: Ooh, me! "who is really ready to say they're sure"

true. OTOH there is a big chance those budgets could be reduced dramatically (as in orders of magnitude) if you’d let natural promotion happen instead of buying it (most of the budget tends to go to PR, not the actual making of the product). That would be made easier were there less copyright restriction.

jameshogg says:

Here is what you need:

A) Reasonable trademark protection. The kind that allows a person or company to prove that a product is really theirs through a unique signature. Not “brand protection” (I can walk on the street and yell “Coca Cola are corporate oligarchs!” and ruin the “image” of their brand) or generic signatures (if an “X” shape would not be considered satisfactory for a contract signature then why should Disney be allowed to get away with three black circles? But what WOULD qualify is the words “Walt Disney” with their unique font, along with possibly the fairy tale castle background).

This would mean that derivative works would be distinguished from originals, attribution would have to be given in order to stop defamation and plagiarism, and this trademark value alone would be enough of an “artificial” value to give quality assurance to the works and help tackle the free-rider problem (but the main economic model for this job is B) below) and allow all “knock-offs” or “pirated copies” to go out of business due to their lack of value, unless they themselves can add something valuable of their own through their own fruits of labour such as retelling The Lord Of The Rings or remixing music.

B) Assurance contracts. This is a brute-force response to the “free-rider” problem in its purest form. Make all interested parties pay simultaneously in order for the works to exist at all, giving “pirates” a hand of responsibility for the content’s creation that copyright cannot do. We have plenty of evidence that this works already: tickets work, cable subscriptions work, pre-orders work (did you hear that Rockstar supposedly recuperated all the GTA V production costs from pre-orders alone?), so sure enough this trend gives a strong indication that crowdfunding can stand on its feet without the need for copyright. It is just a case of how long it takes to become mainstream. “Want an advanced copy of GTA V before anyone else? Put your pre-order money in our crowdfunding pot!”

Put these two elements together based on their evidence so far and you have a pretty freaking stable economic system. Don’t listen to this unfalsifiable nonsense of “but copyright is the only way it’ll all work!”

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