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.
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.