Copyrighting Cakes?

29 April 2009

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.

Comments

6 Responses to “Copyrighting Cakes?”
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brandyk said...

I would consider cakes to be useful articles. Two dimensional paintings etc. applied to the surface (even if they are raised, etc.) are extrinsic to the useful article (i.e., the cake). Three dimensional cakes, like one often sees on the Food Network, however, are subject to the separability analysis. This is very similar to the issues of copyright and costume design.

This again begs the question of useful articles - some of those aforementioned cakes on Food TV are in fact only sculpted out of edible items and aren't meant to be consumed (or sometimes cannot be eaten because of their contents).

I suppose the first question should be -- can I eat it?

April 29, 2009 at 11:21:00 AM PDT
goldenrail said...

Very good point Brandyk. The cake could be more like the bike rack in Brandir International v. Cascade Pacific Lumber, which was not copyrightable because its purpose was to be a useful bike rack, and the quilts in Boisson v. Banian, the alphabet designs of which were copyrightable.

Even if you can eat the cake, will that still prevent certain cakes from being copyrightable based on usefulness? There's case law supporting copyrightablity for useful items, too. (Mazer v. Stein decorative lamp base.)

April 29, 2009 at 11:37:00 AM PDT
Justen said...

This is an interesting analysis. I know there has been some grumbling over protection of recipes in the past (Emeril's being the most recent to come to mind: http://tinyurl.com/ck7nkr), but those arguments I've encountered have never claimed copyright over the "presentation" of a culinary work.

I have seen televised competitions for cake/pastry chefs, and not once did they mention the designs were protected by anything other than the natural difficulty of effectively channeling Seussian inspiration into flour, eggs, and sugar (http://tinyurl.com/dgzoe6).

April 29, 2009 at 11:38:00 AM PDT
goldenrail said...

Justen, despite the debates in the media, the copyright office's stance on recipes is that they are not copyrightable without some other elements (such as organization in a cookbook or detailed explanations). (See http://www.copyright.gov/fls/fl122.html.)

I had not heard of bakers claiming copyright to their cakes either, before the comment on Cakewrecks. Makes me wonder if all the hubabaloo by the music industry, newspapers and book publishers has made people start to assume everything is copyrighted.

April 29, 2009 at 11:59:00 AM PDT
Justen said...

Upon futher consideration of the nature of cakes, I'd like to also offer:

1) A cake is physical property. Since the recipe can't be copyrighted, and nothing other than the end result of the cake is "fixed," is there really any IP here? In the case of the book deal for Cakewrecks, the photography is copyrighted, but the actual property being photographed isn't. (maybe?)

2) If you can argue that the cake falls under sculpture, then the protection extends to the original work and any copies of that original work. If you can prove that a second cake is an exact copy of the first, you stand a chance. If the original work ceases to exist, a second cake would not infringe as you wouldn't be able to prove it is a copy unless you compared a photograph of the original. This would inherently make the new cake a derivative work of the photograph, and not an infringement of the original.

That second point gets a little convoluted. My apologies. I wonder if this expands your question any more?

April 29, 2009 at 11:59:00 AM PDT
Tony said...

"2) If you can argue that the cake falls under sculpture, then the protection extends to the original work and any copies of that original work. If you can prove that a second cake is an exact copy of the first, you stand a chance."

Point of Law: It does not need to be an "exact copy." Substantial similarity is typically the test used in US Copyright cases, and the proof usually requires ACCESS to the copyrighted work to prove. I don't find the analogy to the sculpture/photograph persuasive - as derivative works are covered, the fact cake is eaten (but photographed) does not mean the evidence would not be useful for ACCESS showing infringement of the cake.

I think you could have your eat your cake and have copyright infringement too.

April 29, 2009 at 7:12:00 PM PDT