Patent Potent Potables

As much as I like to think I’m creative in my writing in this space, my raw creative spirit shines much more strongly in mixology and cooking. Or maybe it’s another form of spirit? Either way, I am simply outraged at the possibility of copyrighting cocktails, both for my sake and for others, even if they exclusively copy. The mere thought of it all makes me so angry I need a palliative. Maybe that’s their strategy.

Within the current Copyright regime, neither an idea nor an object can be copyrighted, only the expression (i.e., you could copyright a description or recipe insofar as it doesn’t also extend protection to something functional). As with fashion, Copyright does not inhere where it might extend to functionality/ideas. Patent, on the other hand, can extend to methods of manipulating the physical world, but only when an idea is new, useful, and non-obvious. A recipe patent might be sought on those merits, but the functionality/usefulness is pretty much impossible to distinguish from the constituent ingredients in any particular concoction.

As to the whole moral argument about protecting the products of creativity (i.e., whether or not one brings something to the table), of course I’ll look at a recipe every now and again, but that’s just a starting point. After that, it is the execution, fraught with deviations, additions and substitutions, that makes a combustible special. And denying bartenders and mixologists such a windfall is not to derogate their efforts as unvaluable at all. There is a distinction between cost and value.

The incentive argument (i.e., you should create incentives to foster industrious innovators by rewarding them) simply doesn’t hold (fire-)water. Hasn’t anyone noticed how much cocktail creativity we have seen explode in the last couple of years without extracting licensing fees for each drink invented? After all, did the guy who shook up the first Sazerac require a reward to invent the cocktail? And one can still get a tidy profit from innovating insofar as one doesn’t publish the actual recipe for others to copy. In that regard, trade secret protection (which is what Coca Cola uses to protect its recipe) is far preferable since it is a voluntary and consensual set of restrictions rather than a coercive and independent creation is far more protected. Copyright purports to protect independent creation, but like most dispersed benefits facing rent-seekers, that doctrine has had a tendency to erode.

And if you’re talking about the industrial/structural arguments for copyright, why should we be creating monopolies where the incentives to creativity are already ample? The costs of the subsequent rent-seeking, trolling, and lost consumer welfare are more than enough to outweigh the marginal increase in creativity that might be seen from including concoction in Copyright. And couldn’t/wouldn’t the companies that produce the spirits be able to alter their own brands slightly enough to have first crack at obtaining copyrights on all possible recipes and then extract their own fees from bartenders purporting to invent? Even thinking about applying a derivative works doctrine of any kind would have absurd implications, let alone enforcing a straight-up prohibition on copying in any given bar or restaurant. Not to mention the administrative and transactional costs that would be imposed and eliminate whatever welfare and rewards might trickle down to the actual artists once enough companies have started rolling up the rights.

Of course, just about all of these consequential arguments can be applied to the normal Copyright regime, but you might already know where I stand on that: a recipe for disaster.