The Creative Cocktail: A Guest Post

Kal Raustiala, a professor at UCLA Law School and the UCLA International Institute, and?Chris Sprigman, a professor at the University of Virginia Law School, are?experts in?counterfeiting and intellectual property. They have been?guest-blogging for us about copyright issues. This week, they write about the role of copyright in cocktails.

The Creative Cocktail
By Kal Raustiala and Chris Sprigman

Step down into Crif Dogs, a tiny hot dog spot on St. Mark’s Place in New York, and you may notice a knot of slightly anxious people clustered by a vintage phone booth. If you pick up the phone, a woman will answer, and in a few seconds a hidden opening will appear in the wall. Beyond the opening, you may glimpse the dim confines of the modern-day speakeasy known as PDT (Please Don’t Tell). If you don’t have a reservation, you probably will have to wait an hour or more for entrance. But once inside you’ll be glad you did: PDT serves some of the best cocktails in New York.

Part of PDT’s appeal is obviously its retro-speakeasy vibe and its dark, loony interior filled with stuffed squirrels and the like. But equally important are the excellent cocktails. Like a lot of new bars in New York, Los Angeles and elsewhere, PDT serves impeccably made and innovative libations. PDT and its brethren – Milk and Honey, Death & Co, the Varnish, the Roger Room and many others – combine two important trends in 21st century urban drinking: secrecy and creativity.

The secrecy part – unmarked doors, fake phones – all hark back to Prohibition-era drinking culture (but with better ingredients). The creativity part is obviously what interests us. These bars certainly serve their share of simple martinis and manhattans. But they also offer some pretty creative cocktails, many of which feature unusual and handcrafted bitters, carefully sourced and shaped ice (yes, ice really matters) and freshly infused elixirs of various kinds. Put together in unusual ways, the fine ingredients and meticulous mixing make for excellent and interesting drinking.

Indeed, like cuisine, it is fair to say we are living in a golden age of cocktails. And as a result, many of the same questions that we raised in a previous post on cuisine apply to cocktails. Like great dishes, great drinks can be very creative – more so than many people may realize.

Consider a few examples. In L.A., The Tar Pit serves the Prude’s Demise, made with overproof rum, kumquats, kaffir lime leaves, black pepper agave syrup, velvet falernum (a kind of tropical flavoring) and lime juice. At the now-closed Tailor in New York City, cocktail empresario Eben Freeman offered “solid” cocktails, including a Ramos Gin Fizz marshmallow and “White Russian Breakfast Cereal” – cereal soaked in Kahlua, half-and-half and vodka that has been dehydrated and served in a small bowl. And then there is the notorious McNuggetini, made with vanilla vodka and a McDonald’s chocolate milkshake, with the glass rim coated in barbecue sauce and a Chicken McNugget garnish slapped on. (For a popular instructional video, see this.)? And so on. These drinks push the envelope well beyond the world of the frozen margarita or Long Island Iced Tea.

Like great and inventive dishes, creative cocktails can and often are copied by others — sometimes as overt homage, but often simply because they are great and people want to drink them.

Can creative cocktails be protected from copying? Recipes cannot be copyrighted under American law, and plenty of cocktail recipe books exist. Still, some are trying to use other aspects of IP law to protect their liquid creations. In 2010, Painkiller, a tiki bar in New York, was threatened with a cease and desist letter by Pusser’s Rum, which claimed a trademark in the traditional Painkiller rum cocktail. Gosling’s Black Seal Rum likewise claims a trademark in the Dark ‘n Stormy, a simple mix of rum and ginger beer.

“We defend that trademark vigorously, which is a very time-consuming and expensive thing,” said Malcolm Gosling, Jr., whose family owns Gosling’s Rum, in an interview with The New York Times. For the most part, however, bartenders don’t try to hold onto their creations tightly or keep trade secrets to themselves. They often freely pass the recipes and techniques onto others.

Still, there is some resistance to the culture of copying that exists in the high-end cocktail world. Freeman, the originator of the solid cocktail at Tailor, also claims creation over a technique called “fat-washing,” which involves mixing a melted fat with a spirit of some kind and then chilling it, so the fat rises to the top and can be skimmed off, leaving only the flavor. “In no other creative business can you so easily identify money attached to your creative property,” said Freeman in a recent magazine feature on cocktails. “There is an implied commerce to our intellectual property. Yet we have less protection than anyone else.” However hyperbolic this last claim, it is true that copying is common in the industry and few barriers to it exist. Yet as Freeman himself illustrates, there is substantial innovation taking place.

In short, cocktails look a lot like cuisine: creativity absent copyright, coupled with vibrant competition. And many of the same factors that shape creativity in the kitchen apply in the bar.

One, cocktails are hand-crafted, often right in the front of the customer, and technique and ingredients matter substantially. So like food, an individual drink is not reliably the same from maker to maker, and may even vary at the same bar on the same night. This is especially true of today’s often rococo cocktail creations, which demand precision and often arcane inputs.

Two, cocktails, even more so than cuisine, are an experience good. A bar, fundamentally, is at least as much about atmosphere as it is about actual drinking. So the copyist of a particular cocktail isn’t necessarily going to compete with the originator. If the bar itself were copied – the entire look and feel of the place – the copyist would be vulnerable to what lawyers call a “trade dress” suit, just as one restaurant cannot copy the entire look and feel of another.

Three, bartenders, Eben Freeman notwithstanding, tend to believe in sharing as an ethos – perhaps even more so than chefs. Take the crucial issue of technique. For years, well before the classic cocktail craze took off in here, Japanese bartenders had been meticulously recreating American drinks. One of the most famous is Kazuo Ueda, who invented the “Hard Shake” method of mixing drinks. Ueda operates a website called Cocktail Academy,?where he explains the Hard Shake as well as his overall philosophy of drink-making (and philosophy is not much of a stretch – the site includes entries such as “The Way as an Art of Cocktail,” referencing the classic Japanese Cha-do, or “Way of Tea”).

Ueda’s willingness to share the Hard Shake technique certainly doesn’t prove that bartenders are an especially collaborative group, but taken in context, it is consistent with virtually everything else we’ve found about cocktail culture. Openness, sharing, and innovation are generally seen as going hand in hand, not as opposites that inevitably fall into tension.

Ueda’s Hard Shake method also underscores another area of tangency with successful chefs. Like celebrity chefs, who have many moneymaking options outside of the kitchen, celebrity bartenders can work as consultants and even teach others in special bartending academies. Ueda himself came to New York City in 2010 for a special appearance in which he explained (through an interpreter) his approach to bartending and taught the assembled guests his famed Hard Shake. Tickets were $675. As this suggests, openness and sharing innovations as an ethos doesn’t preclude making some money along the way. As with chefs, building a personal “brand” is a sure way to capitalize on a reputation for creativity – especially when the creation itself cannot be monetized easily or protected by property rights.


David Chowes, New York City

I have held on to three rotary dial telephones. Why? For two reasons (though not necessarily reasonable).

Firstly, as a way of sorta being sentimental.

And, who knows? In 10 or 20 years, they may be worth as much as $100 each.

[However, with inflation, they might be worth only 50 cents in current dollar value.]

Drill-Baby-Drill Drill Team

As an amateur junior mixologist, I wanted to create a drink that encompasses the Great Northwest in glass--Did I Suceed? You Tell me. It has only been recently made possible by the scientific breakthru in meat-flavored, savory vodkas. Try this at your next fabulous:

1/3 Smoke Salmon flavored Vodka

1/3 Blackberry Schnapps

1/3 Rainwater-- preferable gathered in a wide mouth Nike Nalgene Hydration Container.

Mixing staw with three skewered Pinenuts.

***Shot of Stumptown Expresso is optional.

If it is raining, the drink can be served with a tiny Green Umbrella or tiny Faux Columbia Gortex Parka.

Mix by Earthquake shakin' but don't go Tsunami.

I am trying to name this concotion. Considerations include:

-Tonya Harding's Wild Ride, Keiko's Swim Tank, Mt St Helens Gonna Blow, OryGun Settler's End of Trail or Northwest Bomb Flavor Explosion in My Mouth.

After four of these you WILL have a Very Merry Oregon Christmas! Go DUCKS!

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Diego.CMS

Cocktails and many other things someone needs to take the credit for inventing it. If everyone just did the same, creativity would limit itself. The opportunity cost of someone thinking and inventing something is very high, if there was no restrictions such as copyright, people will only do the same thing because their opportunity cost of copying is very low and it will also lower creativity. Time is the highest opportunity cost because its something that you lose and there is no return.

t1

Anyone dumb enough to wait in line for an hour to get a cocktail is also probably dumb enough to think that the ice "really matters."

Xian

Yes all fields would creatively profit from idea sharing, but some fields it takes a little long than say 24 hours to devise the next best 'solution'.

Erik

"This week, they write about the role of copyright in cocktails."

Um, no they don't. All they say is that copyright laws aren't applicable!

Why not patent cocktail techniques? If the technique is unique an nonobvious, it should be eligible for a process patent, no? Presumably the reason that this doesn't happen is because having a monopoly on a particular technique or cocktail isn't actually that valuable.

Come to think of it, that would be a better topic for Freakonomics: how much is a recipe worth? Clearly, it's not worth very much, because no one tries to protect recipes. Why not? Probably because so many substitutes are available at low cost. Don't want to pay for Mario Batali's Spaghetti and Meatballs? Just find another recipe. Or eat steak.

JBJ

Copyright is a recent invention. All the myths about copyright having to exist or everyone stagnates and just does the same thing is countered by over 10,000 years of innovation in human history.

This is to you CMS student(s).

Brian

Cocktail recipes, like great food, should be definitely be shared! (Don't get me started on the many problems with current copyright law.)

Still, people should get credit for their creations. That's one of the objectives behind Classic Mixology, an online database of both historical drinks and new creations: http://classicmixology.com

Jonathan

Flaming Homer

Ben

Instead of thinking about how to apply IP protection to cocktails, perhaps we should look at how the innovation flourishes despite no IP protection? IP protection was an invention to promote innovation and we need to think about alternatives in other industries if it is instead slowing innovation.

Matthias

If recipes aren't really valuable, as several commentators suggest, then why the big hubbub in Coca-Cola Inc to keep their trade secret recipe? Or is people's preference for Coke over cheaper generic just irrational behavior, kind of like the expensive wine thing that Freakonomics recently put forth?

I was recently wondering about recipes recently. I have a great recipe book from Cook's Illustrated. They go to great lengths to develop and tweak recipes so that they "Work every time" as their motto suggests. However, sometimes if I cook something and it turns out fabulous, I like to take pictures and post it with the recipe on my blog so my friends can enjoy it. Is this not right? Would this be like sharing a tightly copyrighted Beatles song with my friends by posting an MP3 on my blog?

Or how about if I want to tweak the recipe and post it? Can I freely republish it then? What I cook someone else's published recipe and want to sell the food as my own in a restaurant?

This post is great because I've been recently going through this all in my head.

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Manoj Chennamangalam

Can't agree more with tx @ #4 and Ben @ #10. What if curveballs were patented by Fred Goldsmith / Candy Cummings (or whoever else that invented it) ? Would ball games have been any more fun than they are now ? My perspective is that any experience that has an ongoing demand to being exactly repeated may be patented / copy righted (key words being 'exactly' and 'may be') and others be left alone. Coca cola recipe and Space shuttles' re entry technology may fall in the first category and I assume lap dances and cocktail recpes may not ?

Rob Levine

>>>Kal Raustiala, a professor at UCLA Law School and the UCLA International Institute, and Chris Sprigman, a professor at the University of Virginia Law School, are experts in counterfeiting and intellectual property.

You'd be hard pressed to tell from reading this piece, which just examines an area no one seriously thought intellectual property should cover, and explains why intellectual property law doesn't cover it.

I agree that we don't need IP protection for cocktails, but nothing here makes that case. Their conclusions seems to be that: "there is substantial innovation taking place." OK. But how does that level of innovation compare to businesses covered by intellectual property? How might it? What does "substantial" even mean?

Sukhjinder Singh

Yes I also agree, I have gone through this as well.

Reese Richards

If intellectual property existed for cocktails, we'd all still be drinking beer.

And every website like this:
http://www.bars-and-bartending.com/drink-recipes.html
that lists a bunch of cocktail recipes wouldn't exist either.

vintage cocktails

The pain killer was not even created by Pussers Rum! It was created in thew Virgin Islands.
http://www.cocktailcodex.com

SUNIL

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