Have Your Cake and Infringement Too

Today, this Ipper ventured forth into the restaurant world surrounding her San Francisco workplace.  In a corner, French-themed cafe, she spotted this beautiful cake design.

Which, likely not by chance, happens to look a lot like a certain famous Disney princess.  From the brown hair and the full yellow dress with matching gloves and down to the rose in her hand.  There’s hardly a part of this cake that doesn’t look like Belle.

Now, Disney is not exactly lenient when it comes to letting others use the company’s intellectual property, so is this cake a risk?

Off hand, I’d say yes, but there’s a few things we would need to know.  It is possible that some sort of agreement exists between Disney and the bakery to make Belle cakes.  Though it’s unlikely a small bakery has a deal directly with Disney, it is possible that Disney sells Belle cake sets, complete with a license to use and display and the resulting Belle.  A quick search online shows that such cake kits do exist.  However, the Disney kits all appear to feature a plastic cake topper, not a plastic Barbie-like doll.

So let’s assume there is no agreement.  This cake, like so many of these, is probably infringing.  It is an adaptation of Disney’s drawings (and statutes, and everything else they put out in Belle form).  In this case, it’s highly unlikely that the cake would qualify as fair use, especially since Disney is in the market of producing Belle cake kits.  A cake designed like a famous cartoon seems very similar to character costumes of children’s cartoon stars.  If the corporations that own the characters are already going after entertainers for unlicensed costumes, why wouldn’t they go after bakers for cakes?

Infringing Cakes

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.]

Copy Cake

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.

Photographs

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.

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.