Last week we looked at whether cakes are copyrightable. We had several great comments, including one from brandyk, who pointed out that cakes are useful articles. If viewed as such, then cakes are outside of the realm of copyright. However, the case law on useable items and copyright is less than crystal clear. As promised, today we are going to look at how one might infringe a copyrighted cake. [Justen and Tony got into this a bit in last week's comments, so we'll try to include some of their ideas here.]
A cake is not something you easily copy by photocopying or uploading to Kazaa. In order to copy the cake, you would need to bake it and make it look exactly the same. That is a very difficult task. Frosting colors may come out slightly different; people have different handwriting; you might not have the right shaped-pan, etc. For this reason, it is highly unlikely that a cake would be infringed by a direct copy.
What about substantial similarity, as Tony mentioned in last week's comments? Let's say you walk into a bakery and see a cake you like. You go home and decide to try making it yourself. It doesn't come out exactly the same, but you're satisfied with the cake. (We have to use you as the example instead of me, because my cake would not come out close enough to the bakery cake to be satisfactory.) Did you infringe on the original cake?
This Ipper would argue no. (Though she is open to reading other's ideas in the comments.) There are many similar cakes that are all based on the same concept. (example) They may even be based on each other. If you go to the bakery and see a cake you like and attempt to recreate at it home, you are taking the idea of the cake and making your own cake based on this idea. Ideas are not copyrightable.
As discussed in last week's post, many of the elements of cake decorations are so common, they are necessary parts to decorating a cake. There are also common ways in which these elements are arranged on cakes. Both these elements and their arrangements would have such thin copyright protection, it would be hard to infringe upon them without making an exact replica. Even then, the arrangement may be too common for protection.
A photograph of a cake has its own copyright, but here we are looking at whether the photograph is infringing the cake in the photo. 17 USC 101 defines derivative work:
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”
A photograph is not really a recasting or transformation of the cake, although it is a different medium. A photograph seems unlikely to change the cake any more than gluing cards on ceramic tiles changes the pictures on the cards. (See Lee v. A.R.T. Co.) The photo is just capturing the scene at the grocery store, not recasting the cake.
Even if we assume a cake is copyrightable, it seems nearly impossible to actually infringe on the copyright.