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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.