Cocktail recipes: Publish or perish

All-star mixologist Jim Meehan talks to Eater about why he shares his cocktail recipes:

Do you think the cocktail world sees publishing recipes as revealing secrets? Or more as a way to share and communicate?

I think they fall on both sides. Certainly some of my colleagues are not as giving as others as far as recipes go. Some people proudly consider some of their recipes to be things that they developed over years, they spent a lot of time and energy and resources on them and don’t see the need to just give them away.

But I think there are others, like myself, who are on the complete opposite side. It’s more along the lines of publish or perish. Maybe not perish, but become irrelevant. Maybe it’s because I live in New York, but I find that in New York when you think of a great idea, if you don’t act upon it someone else is going to be acting upon it. I feel like great ideas are more the result of intelligent people putting different things together. So do you want to be remembered, do you want to at least document that when you did it? Or do you want to rely on the oral traditions to verify that? I personally prefer to stake claims. I’d rather document it.

I’m with Meehan on this. A cocktail might appear on my menu for just a few months before it’s replaced with something new. A recipe only lives on if other people make it, and hearing that other people are enjoying my drinks is gratifying. There are merits to making complicated, ephemeral cocktails that only last a season, but it’s also nice to see them proliferate.

And, for the most part, I don’t see that much value in keeping recipes secret. I earn much of my living by getting people to come to my bar and pay for drinks; publishing recipes is a good way to establish a reputation for creative cocktails. Or as @CaptDavidRyan put it in a different context on Twitter recently,* “content is a loss-leader, ie advertising for something not so easily stolen.” Individual recipes are much easier to duplicate than the full experience of visiting a bar.

Some previous posts on mixology and intellectual property:
Mixing it up without IP
Dark and Stormy and the piracy paradox
Two Pimm’s, one cup

Also, I highly recommend Jim Meehan’s PDT Cocktail Book. Though the recipes can be a bit esoteric, it’s a beautifully illustrated and insightful look at how one of the best bars in the country does its work.

*Post updated for clarity.

Mixing it up without IP

Man, do not steal a recipe for Eben Freeman:

After the seminar, I spoke to Freeman, who admitted he came up with the idea for the talk after becoming fed up with other bartenders and establishments taking credit for and profiting from his recipes and techniques. (Fat washing, for example, the process by which a spirit can be infused with, say, bacon, was pioneered in part by Freeman, yet is often attributed to others.) “Someone needs to get sued … to set a precedent,” he told me.

“In no other creative business can you so easily identify money attached to your creative property,” Freeman went on. “There is an implied commerce to our intellectual property. Yet we have less protection than anyone else.”

No disrespect to Freeman, who is understandably frustrated, but he fails to address the purpose of intellectual property in copyrights and patents. This is neatly summed up in the Constitution:

[The Congress shall have power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

Intellectual property exists to promote progress. Its purpose is not to ensure that no one’s ideas are stolen or that creative people can earn a living, unless those things are needed to promote progress in a field. The granting of temporary monopolies in the form of patents and copyrights is the price we pay for progress, not a goal in itself.

It might be completely true that bartenders are shamelessly stealing from each other, and that’s certainly something we should condemn, but we probably shouldn’t get the law involved unless we can show that this theft is causing mixology to stagnate. Along with fashion, cooking, and even magic, we’re in an industry that’s arguably better off with weak IP. This decade’s boom in craft cocktails is a sign that we’re doing OK without stricter protections, and I’d be worried that additional threats of lawsuits would have a chilling effect on the sharing of new techniques and recipes.

Perhaps Freeman or someone else has a workable, beneficial idea for expanding intellectual property related to cocktails, but I have a hard time imagining what that would be.

Update 9/1/10: Ezra Klein agrees.

Previously:
Two Pimm’s, one cup
Dark and Stormy and the piracy paradox
Dark ‘n’ Sue Me

Two Pimm’s, one cup

Here’s another case of cocktails and intellectual property colliding. This time it’s Diageo’s Pimm’s product versus a chain store knock-off called Pitchers. Click through to see the two labels; Pitchers is clearly building off of Pimm’s image. I don’t know what the legal ramifications of this would be in the UK.

More interestingly, part of Diageo’s claim has to do with the use to which the products are put. Specifically, Diageo doesn’t like the fact that Pitchers boasts that it mixes well with lemonade and fruit, a traditional pairing for Pimm’s often ordered by customers as a Pimm’s Cup. Pitchers also boasts that it outperforms Pimm’s in taste tests.

This is strikingly similar to the Dark and Stormy controversy. Diageo might have a legitimate claim that the bottle design dilutes their brand, but it’s hard to imagine any public good coming from forbidding competitors to tout their superiority in a popular mixed drink.

(For more on the American law regarding trademarks and cocktails, be sure to check this guest post at The Scofflaw’s Den by practicing attorney Chris Leger.)

Dark and Stormy and the piracy paradox

My friend Tim Lee, whose new blog I linked to this morning, follows up on the Dark and Stormy controversy with a clarification about the purpose of trademark law:

[...] trademarks have a dramatically different policy rationale from patents and copyrights. Copyrights and patents are designed to create legal monopolies that drive up the price of creative works and thereby reward authors and inventors for their creativity. Although consumers may benefit from the resulting increase in creativity, the short-term effect is to force them to pay more than they would in a competitive market. Trademarks aren’t like that at all. The point is not to limit competition. To the contrary, the point is to enhance competition by ensuring that consumers know what they’re getting. This is why it’s emphatically legal to run comparative advertising featuring your competitor’s trademarks. Microsoft may own the “Windows” trademark, but Apple is free to use it as a punching bag as long as they don’t mislead consumers about what they’re getting.

The same principle applies in the Dark and Stormy case. The point of trademark law is to make sure consumers know what they’re getting (whether it’s Gosling or Zaya), not to give Gosling a monopoly on the concept of mixing ginger beer with rum. I haven’t seen Zaya’s ad and I’m not a trademark lawyer, so I don’t want to speculate on the legal merits of Gosling’s position. But certainly the apparent purpose of Zaya’s ad—encouraging bartenders to substitute their own rum in place of Gosling’s—is entirely within the spirit of trademark law. If the net effect of Gosling’s threats is that consumers wind up with fewer opportunities to try mixing ginger beer with different kinds of rum, that is certainly not what trademark law is supposed to accomplish.

This a good point. It’s also of interest that the recent boom in craft bartending has occurred with very little IP protection for recipes. Some enterprising writer might want to look into mixology as an example of creativity that thrives in a low IP environment as discussed in this famous paper on the “piracy paradox” in the fashion industry. My impression is that most of the recent innovations in recipes and technique have been driven by bartenders and bars seeking acclaim for their work and patrons eager to try their drinks; I’m personally thrilled when a recipe of my own invention is copied elsewhere, especially if credit is given to me or my bar. In contrast, the cocktails pushed by marketing campaigns tied to specific products are usually pretty unremarkable.

My perspective may be biased however by being so tied into the transparent, blogging parts of the bar community, and marketing cocktails may improve as firms realize the importance of getting their products used in craft bars. But even then it’s not clear that IP would play any essential role in the development of drink recipes.

Dark ‘n’ Sue Me

The Dark ‘n’ Stormy is a cocktail I like on a summer day. And like any good bartender, I know that it’s generally made with Gosling’s Black Seal Rum. What I didn’t know is that the name of the drink is a legal trademark:

That’s according to two trademark certificates on file with the United States Patent and Trademark Office, which — in an exceptionally rare instance in the cocktail world — dictate the precise ingredients and amounts required to call a Dark ‘n’ Stormy, well, a Dark ‘n’ Stormy.

“We defend that trademark vigorously, which is a very time-consuming and expensive thing,” said E. Malcolm Gosling Jr., whose family has owned Gosling’s since its founding in Bermuda in 1806. “That’s a valuable asset that we need to protect.”

But a trademark-protected drink — especially one as storied and neo-classically cool as a Dark ‘n’ Stormy — seems anathema to the current bartending practice of putting creative individual spins on time-tested drinks. Drinks like this one undergo something like a wiki process: a tweak here, a substitution there, and the drink is reimagined.

As this article at Halogen Life notes, applying intellectual property to cocktails is a rare thing. (The article uses “patent,” “copyright,” and “trademark” somewhat interchangeably, but I think it generally intends to refer to trademarks.) An early example (non-trademark) is the Bacardi cocktail, which by court decision can only be made with Bacardi rum. This is understandable given the value of the brand name and the expectations of customers ordering it. Similarly, if a customer orders a Captain and Coke the bartender shouldn’t serve him a Sailor Jerry’s and Pepsi instead, at least not without asking. (Though I have to wonder if it’s possible to harm the Captain Morgan brand any more than one would do by actually serving Captain Morgan.)

Of the few cocktails that are trademarked, most are the gimmicky concoctions found in chain restaurants and tourist spots. The Dark ‘n’ Stormy is a rare trademarked cocktail that craft bartenders care about.

This would all be of merely intellectual interest if not for the fact that a competing rum company, Zaya, ran an ad in the most recent issue of Imbibe recommending its 12 Year Estate Rum in a Dark ‘n’ Stormy. According to the New York Times article quoted above, Gosling’s plans to take action protecting their trademark. Zaya responded with a press release arriving in my inbox on Monday:

Zaya Rum fully supports Mixology as an artform. By imposing a trademark or patent on a cocktail recipe one is suggesting to undermine a Mixologists’ artistic freedom. We applaud bartenders who put their personal thumbprint on a libation as an integral part of the artform; it’s what creates a recipe in the first place.

Gosling’s might be on solid legal ground, but as a craft bartender I’m firmly on the side of Zaya. I use Gosling’s in a Dark ‘n’ Stormy because it tastes good, but it’s hardly written in the fabric of the universe that no other rum pairs so perfectly with ginger beer. If another rum company thinks they’ve made a product that’s even better, I want them to tell me about it. Using unique ingredients in classic cocktails is part of what makes tending bar creative. For example, a couple weeks ago my pal RumDood wrote about his good results substituting different rums in the Painkiller, a cocktail marketed by Pusser’s Navy Rum. It’s that kind of experimentation that moves mixology forward.

Gosling’s contends that using any other rum in a Dark ‘n’ Stormy would leave customers unimpressed, decreasing sales of the cocktail and therefore of Gosling’s itself. Perhaps. The New York Times compares Gosling’s to Campari, but you don’t see bartenders throwing other Italian aperitifs willy-nilly into Negronis despite that drink’s not having any trademark that I know of. Or they give the drink a new name if they do, like the Cin-Cyn using Cynar; not because they’re required to, but because Campari really is distinctive enough to merit its own iconic cocktail. This kind of bottom-up market test is a working method of deciding when a recipe deserves a distinct name.

So when I see Gosling’s calling in the lawyers to prevent people from trying out substitutes, I start to doubt whether their rum is as good as they say it is. Hell, they’re a rum company. Would this kind of behavior impress Ernest Hemingway? Or would he mock them from his bar stool whilst demonstrating knife stunts and tossing back a daiquiri? The question answers itself!

Here’s the three-word response I’d rather see from Gosling’s: “Bring. It. On.” Dark ‘n’ Stormy competition, blind tastings by a panel of consumers and mixologists, sampled side-by-side. The loser pays for the winner’s ad campaign touting its brand as the ultimate rum for the Dark ‘n’ Stormy. What do you say, Gosling’s? Will you put your money where your mouth is?

No, of course they won’t. And I can’t say I blame them. They’ve got a good thing going with their trademark and no reason to risk losing it. But their actions have made me want to switch brands out of spite. If a “Dark ‘n’ Sue Me” shows up on my cocktail menu soon, you’ll know I found a winner.

Further discussion: Inventor’s Rock provides legal clarification and Vidiot at Cocktailians provides an excellent overview of coverage.

Update: It’s worth noting that Australian rum maker Bundaberg markets a bottled Dark and Stormy beverage. I have no idea if they have any plans to enter the US market, but keeping that particular bottle off of store shelves might be one reason Gosling defends its trademark so vigorously.