Copyrighting Cakes?

Jen over at Cakewrecks runs a very popular blog called, well, Cakewrecks.  Her blog is so popular, that it has led to a book deal.  Obviously, the photos used on her blog and in her upcoming book are protected by copyright.  (Thank you Burrow-Giles Lithographic Company v. Sarony.)  But what about the cakes?

A recent Cakewrecks comment said "There is now a "Copyright" sign up about taking photos and recreating their cakes!"  But are cakes really protected by copyright?  A search for US case law about cakes and copyright infringement led to nothing.  The closest case, Kitchens of Sara Lee v. Nifty Foods Corporation (266 F.2d 541), is about covers for frozen cakes.  However, there are apparently a lot of recording artists attempting to "have their cake and eat it, too."

Unable to find case law directly on topic, this Ipper has decided to do her own little analysis on the copyrightability of cakes under the US Copyright Act.

Analyzing Cake

Copyrightable?

Cake certainly is a fixed in a tangible medium of expression.  (Yummy one, too, usually.)  Otherwise, how would we get to eat it? 

Subject matter (Sec. 102): If a cake fits anywhere here, it would fit under (5) "pictorial, graphic, and sculptural works."  Some cakes are indeed sculptural masterpieces.  Some cakes are the regular geometric shapes, but involve very artistic pictorial and graphical designs on the tops.  (That link may not be the best example since many of the cakes could potentially be copyright infringements themselves, but you'll get the idea.)  Then there are the regular cakes:  "Happy Birthday,"  "Merry Christmas," "It's Legal in Iceland, etc.  These are still pictorial or graphical works.

But, are the cakes original works of authorship?  Of course, this is one of those questions a judge would have to answer in regards to a particular cake in court.  In general, cakes are creations of the baker/decorator.  Some cakes are based on designs that appear in books.  If these designs are copied exactly, then there would be no originality.  Other cakes consist of elements common to cake decoration, sort of scenes-a-fair of cakes.  These are usually not considered copyrightable because they are common and necessary parts to creating the art.  However, even if cakes are based off of a picture, or use only common elements, they can still be very unique (as those links show).

It appears, by this analysis, that cakes are copyrightable.  Although, some with very slim protection.  This Ipper, however, doesn't really like that answer and would much prefer a different one.  So please, feel free to explain why the entire analysis is wrong ;)

The real question though is, even if cakes are copyrightable, does it matter?  How would one infringe a cake?  We'll explore that later.

Celebrating IP and Malaria Days with TRIPs

This weekend included both World Malaria Day (yesterday) and World Intellectual Property Day (today).  In recognition of both, we're taking a look at not-yet-ratified Article 31bis of TRIPs (the agreement on Trade Related Aspects of Intellectual Property).  The aim of Article 31bis is to increase developing countries' access to generic versions of important patented medicines.

[left: stuffed malaria]

TRIPs has always included a special provision allowing for compulsory patent licenses in certain situations.  (Article 31.)  The reason for the addition of Article 31bis was because the original provision limited the licenses to uses "predominantly for the supply of the domestic market."  (Art. 31(f).)  The problem with the original article is that most of the countries needing access to patented medications for deadly diseases do not have the ability to manufacture the drugs in their own countries.  That means even if they get the compulsory license, they will still not have access to the medicines.  [Same problem for countries who are not yet required to patent pharmaceuticals. (Art. 66.1, date of compliance extended to 2016 by Doha.)]

Article 31bis was devised at the Doha round negotiations in 2001.  The General Council adopted the provision in 2005, but it has not yet been ratified by the required number of WTO members and so is not actually part of TRIPs.  However, it is still sort of usable.  A 2003 declaration by the General Council waves the "predominantly for the supply of the domestic market" part of Article 31.  In order to waive this provision, the importing member must be eligible under certain guidelines (mostly Least Developed Countries) and notify the Council for TRIPs of all specifics relating to the medicines it wishes to import.  The exporting member must notify the Council of TRIPs of its willingness to grant the required license and of all particulars relating to its shipment of the medicines.

This all sounds pretty nice and simple, but in practice, it really hasn't turned out that way.  Only one member, Rwanda, has ever used the 2003 declaration to import patented medicines.  The actual legal meaning of this set-up remains a mystery.  First, there is the vague language in the original article, Art. 31, that limits using a patent without first attempting negotiations to "national emergenc[ies]."  (Art. 31(b).)  How likely is a WTO panel to decide something is not a 'national emergency' after a country's government has declared it so? 

Second, Article 31bis has never been ratified and is not part of the TRIPs agreement.  This may seem like it is not that big of a deal since the 2003 declaration waves the problematic part of Article 31.  But the declaration only adds to the confusion, and that brings us to: Third, what is this declaration?  It is not part of the TRIPs agreement.  It is not public international law (which WTO panels look to when deciding cases).  It is a declaration by the Council.  What does that mean?

Logistically, these are concerns that do not matter until someone challenges the use of the declaration.  Rwanda was able to use the declaration without any problems.  Perhaps if any other members should try, they would also encounter no opposition to using the declaration.  Guess we shall just have to wait and see.

April Celebrations

April is a very busy and exhausting month for intellectual property lovers.  What with all these celebrations we are apt to gorge ourselves on cake and expend all our air blowing up balloons.

Happy Birthday TRIPs

Celebrations started last week with the 15th birthday of TRIPs, the Agreement on Trade Related Aspects of Intellectual Property.  The agreement was signed  as part of the Marrakesh Agreement establishing the World Trade Organization on April 15, 1994.  (The agreement did not enter into force until January of 1995.)  Since then, there have been over 100 disputes concerning TRIPs before the WTO (per WTO website).  One interesting note for the 15th anniversary is Article 64, which was intended to last for 5 years and then be reviewed.  It was extended once for 5 more years.  The provision is still active.  Will it ever be removed?

Earth Day

Today is Earth Day.  Although Earth Day did not begin with a focus on intellectual property, it is hard to escape the association now.  A large part of environmental awareness and improvement involves new forms of energy and environmentally friendly inventions.

World Book and Copyright Day

Tomorrow, April 23rd, is World Book and Copyright Day.  UNESCO, the United Nations Educational, Scientific and Cultural Organization, began World Book and Copyright Day as a special occasion for promoting "reading, publishing and the protection of intellectual property through copyright."  Take some time to celebrate your favorite authors and books with the rest of the world!  (This particular Ipper will most likely be curled up in a corner with Jane Austen, if she can find her book.)

World Intellectual Property Day

Sunday is the crowning glory of the month's festivities: World Intellectual Property Day.  This year, WIPO's theme for the April 26th celebration is right in line with Earth Day: promoting green innovation.  A list of suggested celebratory IP activities can be found here.

April 26th also marks the 39th anniversary of the establishment of WIPO.

Can I Get that in Twitter?

According to a recent US cellular company commercial, 26% of people have no idea what Twitter is.  But those of us who do are quite familiar with the little blue twitter bird, the who-goes-there owl, and the most amusing Fail Whale.  We may also be aware that Twitter doesn't really have much of a business model.  There have been the usual discussions of monetization: bringing in advertising, selling to Google, etc.  But, with the popularity of its intellectual property, Twitter may not need to monetize its service.  It can license its icons.

There are already a few Twitter-related products out there.  Zazzle has a complete line of Fail Whale items, including baby onesies.  Walmart has a line of bedding that includes owl and bird shaped pillows that quite resemble the twitter characters, as well as sheets sporting a variety of small twitter-shaped birds.  It is unclear if any of these items are actually licensed from Twitter, but it does show there is a market for Twitter merchandise.

Perhaps it's time to think outside the box and look to sources beyond the internet for revenue.  Twitter has branded itself well and, unlike most internet services, has associated some cute and loveable characters with it.  Fail Whale might not replace Mickey or Hannah Montana, but there are certainly people who like to see more of him and his pals, offline. 

(I for one, would like some twitter-bird covered fabric to make a nice sundress.  But then, I am typing this in a dress printed full of ladybugs.)

Deciding the Fate of Music

A follow-up from the pre-Easter Tenenbaum fair use defense post - a further look at why a court should not address the issue (again) of whether or not file sharing is fair use.  As mentioned in the previous post, legal free music is coming.  A court decision ruling file sharing as fair use would only hasten the inevitable.  This hurrying is unnecessary and would be detrimental to the progress already being made.

Let the People Do It

There are companies in the industry currently working on how to make the music industry work best for everyone, including the fans and artists.   Let the industry play it out a little while longer and figure out where its going.  Forcing the industry's hand never proves good; it freaks out and reacts without taking time to figure out if its actions make sense.   

Allowing the industry players, the musicians, the experts and the fans (yes, they have a say now, too - the musicians are listening) to hammer out a solution that works for all will produce a much better result than a court handing down a decision from on high.  Allowing those who have a stake in the matter to develop a solution fosters more cooperation.  A value our democratic society is supposed to value.  Cooperation in an industry that desperately needs to rebuild its relationship with the rest of us.  It also gives those who participate a deeper connection to the outcome; they find value in the product of their creation and are more likely to support it.

Easter Vacation

It's Easter Time. The Ipper's are on holiday. We will see you again on Wednesday, April 15th. Have a happy Easter, and to all our Jewish readers, a pleasant Passover.

The Tenenbaum Fair Use Defense: Why?

Professor Nesson's plan to use a fair use defense in the Tenenbaum/RIAA trial is causing quite a stir.  The Harvard Law professor heading up Joel Tenenbaum's defense team seems firmly rooted in his position, believing that file sharing is a fair use.  "From my side the path is straight," he said in a serious of tweets discussing ruminating on his point.

Other copyright experts have weighed in on this approach, in part because Nesson has either asked them for their opinions or has asked them to be expert witnesses at the trial.  They do not agree that file sharing is fair use.  Expert squabbles aside, this Ipper has one question: Why use this defense? 

The original, or at least most previously focused on position was that copyright statutory damages are unconstitutional because of their extremely high ratio between value of actual harm and value of punitive damages.  What do you gain by pursuing the fair use defense that you don't get by pursuing the statutory damages position?

File Sharing Becomes Legal - and?...

Legal file sharing is the most obvious outcome of a successful free use defense, but it really doesn't do us any good.  The music industry is moving towards accepting free file sharing (much to my chagrin).  There's the recent deal in China that creates a free legal way for consumers to download music.  There's also the Canadian proposal to add an opt-out-able music license into internet payments.  And many more proposals and trial runs of different ideas around the world.  Yes, the industry is still pushing things like ISP 3-strikes laws, but it's just buying time.  The industry has a plan.

So, free legal music is coming.  If the fair use defense in the Tenenbaum case succeeds, we just get the same outcome (in a less valuable way - more later) a bit early.  Maybe.  With the slow pace of trials, the court might not even have a chance rule on the issue until the matter is completely moot.

The Statutory Damages Claim - Real Benefits

The Copyright Act's statutory damages apply to all infringement, not just file sharing.  So, if the level of statutory damages is found to be unconstitutional, the change in the law affects anyone accused of copyright infringement.  This includes people who post YouTube videos, musicians who use sampling, and Lessig's poster-child: remix artists.

If a court finds the copyright infringement statutory damages to be unconstitutional, we get to make the law fair again.  If a court decides file sharing is fair use, all we get is an even murkier definition of fair use.

A Week of Reflection on LMDS - Is the US the Only Country in the World?

The Leadership Music Digital Summit ended last week Wednesday, but one particular thing from the Summit have continued to weight on this Ipper's mind.  Throughout the entire two days, there were no discussions involving the international aspects of copyright.

Big deal, you might say.  The Summit was about the American music industry, so why should there be any international talk?  Two main reasons: first, many of the panelist spoke about how their various companies are attempting to take advantage of worldwide markets.  Markets around the world means copyright laws around the world. 

Second, and more importantly, several discussions at the Summit discussed changes to the United States Copyright Act.  This is not unusual for these types of gatherings.  The same types of suggestions are made at legal training seminars, in articles, on blogs, and in classrooms.  But one fact always seems to be ignored: the US has international obligations.

The United States cannot just willy-nilly change its copyright law without first understanding the potential implications beyond its own borders.  There are diplomatic concerns: 'if we change this, how will it affect foreign artists? What will countries do and say on behalf of protecting their artists?'  There are trade concerns, 'if we change this, and it violates TRIPs, how much will it cost us?'  (And, there are probably a number of other concerns, which this Ipper would need a great deal more experience in international politics to understand.)

This does not mean the US cannot do anything that violates its international copyright obligations (indeed, the US often does), it just means that those who present ideas about changing the United States copyright law should consider the international side of things: bring the international aspects into the discussions. 

As people who have made suggestions improve and develop their ideas more fully, others can begin to suggest changes that do not interfere with international obligations.  Or, if the changes they want cannot be done without making international waves, maybe they can even begin to suggest changes to the international framework.  This Ipper's plea is simple: don't forget the rest of the world.