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?