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I need a (non-copyrighted) drink


I've spent the past few days with my family in California, and the week before that in a small diving town in Mexico. I had some good food, and a lot of time to rest and read. But I haven't had a decent cocktail in about two weeks. This is bad for both my mental health, and my health health. All of which may explain my distress over the news that there's an effort afoot to copyright cocktail recipes.

As is always the case with granting individuals legalized monopolies over intellectual property, we should start by asking whether consumers are suffering because bartenders don't have enough financial incentive to innovate interesting new drinks. Given that the past few years have seen an incredible explosion in creative mixology, that's a hard case to make. The status quo seems perfectly good at encouraging innovation -- so much so that the drinks have gotten increasingly comical.

And it's not just that there's no evidence that consumers are being harmed by the current arrangement. There's clear evidence that they're benefiting from it. I live in Washington. But a lot of really good cocktails are thought up in San Francisco. Happily, I can drink a lot of those cocktails, as the most successful recipes quickly proliferate. In a world where the originators of those cocktails can sue -- or, even worse, a world where the people who say they're the originators of those cocktails can sue -- those drinks stay off the menu. And that doesn't even get into the world of trolls -- people who would try and make their money by copyrighting dozens or hundreds of drink recipes and then suing bars that made anything similar.

Much like with the proposed fashion copyright, there should be a pretty strong bias toward an if-it's-not-broke-don't-fix-it position on intellectual property laws. To a degree people don't always appreciate, consumers really do benefit from the absence of monopolies, but since they're not politically organized around their intellectual property interests and small groups of producers often are, the law can tilt towards the few at the expense of the many.

Photo credit: Leah Jones/The Washington Post.

By Ezra Klein  |  September 1, 2010; 9:19 AM ET
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Gosling's Rum has already done this in Bermuda with the Dark 'n Stormy (Dark Rum/Ginger Beer) and it hasn't had any effect on the proliferation of the drink as far as I can tell. The problem with the current model is that it encourages bartenders to keep their recipes a secret. I don't know if that's a real "problem" per se, but if you'd like to see famous NYC cocktails in DC, a copyright/trademark might be the best way.

Posted by: JWHamner | September 1, 2010 10:35 AM | Report abuse

Not to mention, you can look at some big players in the beverage industry, and realize they didn't need protection for their recipes.

Coca-Cola for example never patented its formula, because that would require revealing it, and then enforcing the patent for an indeterminate period of time. Instead it's a trade secret, and no one has ever been able to reproduce it accurately.

For all the bartenders worried about other people stealing their drinks- just don't publicize the exact recipe.

Posted by: cbaratta | September 1, 2010 10:36 AM | Report abuse

Copyrighting cocktails would be ridiculous. But again, the issue in copyright has nothing to do with whether "consumers are suffering." Consumers have nothing to do with the idea behind copyright of intellectual property. It's about the creators and their livelihoods.

Posted by: JJenkins2 | September 1, 2010 10:42 AM | Report abuse

On a similar note, Mark Waid, comics scribe extrordinaire, gave a key note speech at the Harvey awards last weekend where he argued that the comics industry should stop trying to put the download genie back in the bottle and also supported things passing into the public domain. I can't find a transcript, but here's a link:

The public domain is a concept which really needs to be strengthened. There's a classic Doctor Who story where several characters from classic literature (Swift's Gulliver, etc.) appear as characters. The Doctory Who story is pretty good, but it's totally fun that all these characters can come together. Think also of Alan Moore's League of Extraordinary Gentlemen. You just can't do something like that nowadays unless you're working under parody and satire. Still, we're all the poorer by letting copyright holders keep control of creations long after the creator has died.

We're all better off for having Mozart in the public domain. Why not Disney characters?

Posted by: MosBen | September 1, 2010 10:48 AM | Report abuse

That Atlantic article is ridiculously off-base, and contains numerous errors relating to the law. The article conflates getting a trademark with getting a copyright. These are two distinct forms of IP that afford incredibly different rights. Getting a trademark on a cocktail would not prevent anyone from making that same cocktail, it would merely prevent others from using the name attached to it. It is important to note that one could only get a trademark for the name of a drink that is not already in common use. For instance, nobody could try and trademark "martini."

There are a lot of problems with intellectual property protection in this country. Sadly, I think that articles that are so inaccurate really do a disservice to the national dialog on the issue.

Posted by: CJTDC | September 1, 2010 10:52 AM | Report abuse

JJenkins2, I would have sworn that I saw a link here on the blog about how that's actually not true, that protection for consumers was part of the origination of copyright, but I can't find a link right now.

Anyone that wants to help me out, I'd appreciate it. On the other hand, I could just be going crazy...

Posted by: MosBen | September 1, 2010 11:12 AM | Report abuse

My goodness, Ezra, this is the second article of yours I've seen (after the one about copyright design protection for fashion) that shows how little you know about IP law. The Atlantic article you linked to is so horrendously wrong-headed I don't even know where to begin. Please, Ezra, cease writing articles about copyrights until you have a simple backgrounder lesson from an IP attorney.

Copyrighting an article like a cocktail doesn't even make sense. There is absolutely no applicability for copyright law to cocktails. Perhaps one could apply for a patent for a cocktail recipe. Or one could trademark the name of a drink, or seek trade dress protection for its appearance or the shape of its glass. But copyright? Absolutely ridiculous.

Posted by: IP-Attorney | September 1, 2010 12:29 PM | Report abuse

Sadly I think all your reasons for why cocktails shouldn't be the subject of copyright are essentially true for a whole host of things that are already subject to copyright.
On the lighter side, an excellent cocktail i had recently:
a "Katy Long" - 2 parts red table wine, 1 part vanilla vodka, 2 parts diet coke.

Posted by: Levijohn | September 1, 2010 12:48 PM | Report abuse

The value in copyright for the consumer, after the its expiration (ensuring a limited but definite monopoly to the author-creator — Section 8, Article I), was that such works were free and available (public domain).

The Framers thought that ideas should ultimately be free and available to the public after copyright expiration, for anyone to use and expand upon. Think of Santa Claus, the Easter Bunny, the Irish shamrock and leprechaun— even Uncle Sam. All have gone through a process of evolution since their copyrighted original.

However, businesses which have managed to last longer than the terms of copyright protection are afraid of losing control of their commercial creations. Think Disney and Mickey Mouse, or Warner Bros. and Bugs Bunny. If they had their way, such copyrighted treasure would be permanently protected, an idea that would have been abhorrent to the Framers.

Here's a non-Wikipedia source on the subject. Though it's on the anti-extension side, being academic, it covers the pros and cons fairly evenly:

Posted by: tomcammarata | September 1, 2010 1:04 PM | Report abuse

--"As is always the case with granting individuals legalized monopolies over intellectual property, we should start by asking whether consumers are suffering because bartenders don't have enough financial incentive to innovate interesting new drinks."--

Marx lurches through Klein's twaddle like a ghoul in a swamp. Yet, in the dim world where health care is an inalienable right, it's not a far stretch to helping oneself to the fruit of a hard working bartender's endeavor.

You can't grant what isn't yours to grant, Klein. And only thieves take what isn't theirs to take.

Posted by: msoja | September 1, 2010 3:24 PM | Report abuse

yeah that is true, major brands do give out free samples of their popular health products best place to check is send it to your friends

Posted by: aidenjose01 | September 2, 2010 5:35 AM | Report abuse

Couple things are glaringly wrong with the comments here and the original article linked to by Klien. For the original aritcle, like most media, it mashes/mixes all trademark, copyright, and patent law together when they're vastly different and misses most of the nuances which are key.

"Consumers have nothing to do with the idea behind copyright of intellectual property. It's about the creators and their livelihoods."

Copyright is about promoting progress in the arts. It is not about securing livelihoods. Copyright was established to provide some incentive for people to publish information for the public to use and ensure a vibrant public domain (after a limited monopoly). The original meaning has been bastardized by those seeking monopolies. The limited monopoly has been lost (approximately 100 yrs is not limited).

"The problem with the current model is that it encourages bartenders to keep their recipes a secret. I don't know if that's a real "problem" per se, but if you'd like to see famous NYC cocktails in DC, a copyright/trademark might be the best way."

A legalized monopoly does not encourage the spread of information. It restricts it. If the inventor does not build a bar/restaraunt in your city, you will not see the drink for roughly 100 years in your area when the copyright expires. If I have 1 drink copyright and even if it's super popular, that does not provide a ton of incentive to build restaraunts/bars everywhere. I may license it and collect royalties, but the consumer will just bear the brunt of higher priced drinks. It also means that every time I come up with some new mix, I have to make sure nobody else has it copyrighted. It's a huge hurdle, especially for smaller establishments.

Posted by: Copywrong | September 2, 2010 1:05 PM | Report abuse

Try one of theses delicious, healthy, low toxicity cocktail recipes with all of the alcohol, none of the remorse:

Posted by: samantha22 | September 5, 2010 10:23 PM | Report abuse

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