Cake Design and Copyright Law

As promised, this week I am blogging about cake design because the Oklahoma State Sugar Art Show is this weekend. The OSSAS is one of the largest and most prestigious competitions in the world for cake design and decorating. Naturally, with the exploding popularity of cakes in the media (e.g., TV shows like Food Network Challenge, Ace of Cakes, and Cake Boss), and the increasing exposure for cake designs in print and on the Internet, the industry is bigger than ever. Concurrently, stories of cake design theft are also increasing, as I learned this past spring when talking with about a dozen food artists from around the country.

Can anything be done to prevent cake copying? If cakes are protectable by copyright law, then the short answer is yes. However, as I will reveal tomorrow, copyright law may not be the best answer. But for today I will discuss whether cakes should fall under copyrightable subject matter.

The threshold question for copyrightability is very simple: is the work an original work of authorship fixed in a tangible medium of expression for more than a transitory duration? Copyrighting a work used to require formalities like giving notice and registering the work, but the law has changed so it is now very easy to “get” a copyright. In fact, the creative and expressive elements of this blog are protected by copyright as I write them and they are fixed on my hard drive (or the Blogger server).

So the threshold question, which comes from the copyright statute,[1] really contains three elements and we will look at them briefly in order. First, is the cake original? The Supreme Court has said that “original” means “original to the author” and that only a “modicum” of creativity is necessary to support a finding of originality in a work.[2] This is actually a very low hurdle to jump over. There can be little doubt that the creativity in an original cake design meets this first step in the analysis.

Second, is the work a work of authorship? Again, the Supreme Court has said that an “author” is a person “to whom anything owes its origin.”[3] Therefore, a cake is a work of authorship because any cake owes its origin to its creator or author. This holds true even though a cake, like most visual art, is not something we typically associate with “authors.”

Beyond this semantic argument, the copyright statute also lists categories of “works of authorship,” one of which is “pictorial, graphic, and sculptural works.”[4] I last wrote about PGS works when discussing the functional aspects of chili peppers in food. The definition of PGS works in the statute is rather long, but essential says that it includes any work of artistic craftsmanship (even architectural plans) but only to the extent of their form not their function.[5] Any PGS work that is a “useful article” will only be copyrightable to the extent that the work’s PGS features can be identified separately from the utilitarian aspects of the article. Thus, I argue that cakes are PGS works. Furthermore, to the extent that a cake is a “useful” or utilitarian article, the expressive aspect of the cake (its color, shape, size) can be separated from the caloric or nutritional value it provides. The legal “separability” analysis is somewhat involved, but I think cake comfortably falls into the PGS category, and that further analysis is unnecessary for the purposes of this blog.

The third fundamental question is: Is the work fixed in a tangible medium of expression? The statute says that “fixed” means that it is “sufficiently permanent or stable enough to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”[6] As Congress is sometimes know to do, here it has provided guidance on the meaning of “fixed” in the copyright statute without really telling us what “transitory duration” means. Luckily, our court system has stepped up to fill the gap in this instance. The United States Court of Appeals for the Ninth Circuit interpreted the meaning of “fixed” when considering whether a whether a program stored in a computer’s RAM is fixed.[7] The Ninth Circuit acknowledged that the copy stored in a computer’s RAM disappears when the computer is turned off, but held that not enough facts were presented to support the finding that such a program was not fixed under the meaning of the copyright statute.[8] Therefore, although a cake will often be eaten and cease to exist, it will usually exist long enough to be considered “fixed” for purposes of copyright.

Furthermore, it is possible to fix the sculptural aspects of a cake in a photograph even if it is eaten. I do want to note, however, that a chef claiming copyright in a dish based on the gustatory creativity rather than the visual art of the food may have a tougher time “fixing” that expressive element by traditional means. But then again, perhaps any food dish is fixed long enough to sustain copyright, even if it only makes it from the kitchen to the table before being devoured.

My personal conclusion is that a cake, when creative and original to the author and brought to life before being eaten, is fully covered by copyright law. Cakes generally meet the initial requirements to sustain a copyright. In my next post I’ll be talking about why, to the best of my understanding, there is so much “copying” among cake artists and yet so few (or zero) copyright lawsuits over this issue.

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[1] 17 U.S.C. § 101, 102(a).

[2] Feist Publications Inc. v. Rural Telephone Service Co., 499 U.S. 340, 361 (1991)

[3] Burrow Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884)

[4] 17 U.S.C. § 102(5).

[5] 17 U.S.C. § 101.

[6] 17 U.S.C. § 101.

[7] MAI Systems Corp. v. Peak Computer Corp., 991 F.2d 511 (9th Cir. 1993).

[8] Id. at 518.

Oklahoma State Sugar Art Show

This past spring I wrote a paper exploring the role that copyright law and social norms play within the world of cake design and cake design copying. With the Oklahoma State Sugar Art Show coming up this weekend, October 2-3, I wanted to provide a few entries this week on the topic of cake design, copyright law, and copying. On Monday I will write a post about whether cake designs are copyrightable. On Tuesday I will write what social norms seem to exist in the cake design culture, which I learned of through talking with and surveying several cake designers. On Wednesday I will provide my own opinion about whether and how the disconnect between copyright law and the cake design community can be resolved. I hope it is enjoyable.

Chili Peppers = Non-Functional Food

One of the issues encountered when claiming that food is generally copyrightable is that the copyright statute specifically says that, within the category of pictorial, graphic, and sculptural works, anything that qualifies as a "useful article” is not subject to copyright protection. The definition of pictorial, graphic, and sculptural works in the statute actually says that such a work is protectable only if “the design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.”[1]

This poses an issue because food, at a general level, is entirely functional. Whether it is providing calories or nutrients to the body, the food is serving some kind of biological or metabolic function from which any creative pictorial, graphic, or sculptural aspect must be separated. A chef would have to show that no nutritional considerations informed the creation of a dish (assuming that food falls into the PGS category) in order to sustain protection.

It seems that chili peppers are one ingredient that could help food over the “separability” hurdle for useful articles. I recently learned from Tuesday’s New York Times that humans are the only mammal that eats spicy hot chili peppers, perhaps because our species simply gets pleasure from the pain. The article states there are doubts surrounding claims about the beneficial effects of hot peppers. If these claims are indeed tenuous, then it may be the case that spicing up a food with peppers has no functional or nutritional purpose, but is entirely separable as a creative or expressive aspect of the work. Indeed, unlike some culinary creations, the intended emotive effect of hot peppers may be more transparent to lay persons like myself, getting around some of the problems discussed in my earlier post.

I would love to hear from any culinary experts reading this blog post as to whether any other ingredients exist that might be similar to peppers in that they (1) provide no apparent nutritional or caloric value and (2) can be easily shown to go towards the expressive content of food. Please comment.

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[1] 17 U.S.C. § 101.

Comparing Food and Music

Many people may be under the impression that copyright law has always protected music. While musical works or compositions have been covered since 1831,[1] sound recordings were only brought under the umbrella of copyright in 1972.[2] Thus, sound recordings are an excellent example of the statute changing to protect a category of works that were not previously protected. I already discussed the fact that recipes are not protected in an earlier post. If one analogizes a recipe to a musical composition, and the food created from that recipe to a sound recording, one has a good argument (at a high level) that the copyright statute should be changed to also protect food, even if recipes remain unprotected.

But is this analogy between music and food both broad enough and deep enough to confidently say that food ought to be protected as well? This may not be the key question to ask in actually deciding whether food should be protected under copyright law. However, it does provide one lens through which we can look at copyright and food. It also seems a rather interesting lens.

In the introduction to his book, This Is Your Brain on Music, Professor Daniel J. Levitin makes the point that while most people do not need a technical knowledge of a subject matter to express their preferences in that subject matter.[3] He states that almost anyone can articulate their preferences in music without also being able to articulate the underlying technical reasons why they like that music, or why some music is more pleasurable than other music.[4] The same is likely true for other copyrightable subject matter such as pictorial, graphic, and sculptural works, or literary works. Prof. Levitin then states, for illustrative purposes, that he knows he likes the chocolate cake at one restaurant over the chocolate cake at another, but to explain why he likes the former better would require the mind of a chef.[5]

I thought this statement was intriguing because it supports the assertion that the perception of copyrighted works does not rely upon the technical understanding of the person perceiving it. Rather, the creativity and originality inherent in copyrighted works can be perceived without being understood. Arguably, there are fewer individuals within the population that understand the originality and creativity in a given food dish than there are that understand what makes a great song or great painting. And perhaps only the best-trained and most knowledgable chefs are actually capable of imbuing true originality and creativity into a dish. Regardless, the fact that humans can perceive the creativity and originality supports the argument that food could feasibly be included with current copyrightable subject matter.

Professor Christopher J. Buccafusco has also noted this parallel, and explored the difficulties of identifying creativity in food.[6] Prof. Buccafusco particularly points out that while “people may doubt that dishes are capable of emotional expression, [no one] would ever doubt that a piece of music expresses something.”[7] His statement highlights an important aspect of our copyright law; it simply requires that the work have some minimum level of creative (and original) content, but does not seek to identify what that content is. As a culture, we presume that all music expresses something, even if we cannot tell what it is, and no case has ever claimed that a piece of music lacked expression, yet we continue to protect music and sound recordings through copyright law.[8] Therefore, if we can agree that food, in some of its embodiments, demonstrates and possesses the creativity of the chef, why can it not be included as copyrightable subject matter?

One reason food may still be excluded is that we are not worried about an underproduction of food without offering the incentive copyright provides. We may need to worry about the innovation of grande cuisine, but it seems unlikely that food production will cease if copyright does not quickly offer protection in this area. Where society, and Congress, have no need to address underproduction or lack of innovation, it is unlikely to step in. The counterargument here is that much other creative work is carried out for incentives other than copyright protection and the monopoly profits it can provide. Think about people who paint or make music as a hobby, or amateur novelists. I suspect that culinary innovation is driven by factors other than the copyright incentive, which is why we see culinary innovation without copyright protection. Most culinary innovation is occurring in the kitchens of elite restaurants and training schools, where the incentive is either financial success (e.g., keeping the business open) or peer recognition. While copyright protection would likely help innovative chefs retain an edge over competitors, the as-yet absent application of intellectual property protection to food means the outcome remains only the result of thought experiments, rather than the real-world.

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[1] 4 Stat. 436 (1831).

[2] Pub. L. 92-140, 85 Stat. 391 (Oct. 15, 1971) (prior to Copyright Act of 1976). The timing of covering sound recordings makes some sense considering that Edison's phonograph technology was not invented until 1877.

[3] Daniel J. Levitin, This Is Your Brain on Music: The Science of Human Obsession 10 (2006).

[4] Id.

[5] Id.

[6] Christopher J. Buccafusco, On the Legal Consequence of Sauces: Should Thomas Keller’s Recipes be Per Se Copyrightable?, 24 Cardozo L. Rev. 1121, 1135 (2007).

[7] Id.

[8] Id.

NY Times Article from 2007

This article is a few years old, but deals with a lawsuit where New York Chef Rebecca Charles claimed intellectual property in her menu when another chef copied the concept for her restaurant. The case apparently settled out of court:

"In recent years, a handful of chefs and restauranteurs have invoked intellectual property concepts, including trademarks, patents and trade dress -- the distinctive look and feel of a business -- to defend their restaurants, their techniques and even their recipes, but most have stopped short of a courtroom."

Copyright and Recipes

One of the most common questions posed to me when I mention my interest in intellectual property law and food is whether recipes can be protected. As I mentioned in my last post, there are numerous examples of recipes that are protected as trade secrets. However, the downside to trade secret protection is that others can attempt to “reverse engineer” the recipe and are not liable for misappropriating that trade secret. On this point I have to admit that, as a culinary dunce, I do not know how easily or closely a master chef could successfully recreate another’s secret recipe, so perhaps trade secret provides adequate protection in the culinary arts. However, another downside to trade secret protection is that even if someone misappropriates a secret recipe, that person may be liable, but the culinary cat will be out of the bag (so to speak) and the secret is ruined. 

However, copyright law may could potentially provide stronger protection for chefs worried about others copying their recipes. But this raises the question of whether a recipe falls under what is known as “copyrightable subject matter.” The copyright statute spells out some things that are definitely copyrightable subject matter, including familiar examples like literary works and sound recordings. [1] The copyright statute also states that some things will are not protectable by copyright even if they are original works of authorship. This group includes ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries.[2] These things are not copyrightable no matter what form they take or how they may be embedded into an otherwise copyrightable work.[3]

Based on that list alone, one can easily argue that a recipe is simply a procedure or process, and is simply not copyrightable. The Code of Federal Regulations and the United States Copyright Office have both adopted this viewpoint. The United States Copyright Office has said that “mere listings of ingredients as in recipes . . . are not subject to copyright protection.”[4] The Code of Federal Regulations echoes the Copyright Office and expands on § 102(b) of the copyright statute by specifically stating that “mere listings of ingredients or contents” are not subject to copyright protection.[5] The combination of the statute, the C.F.R., and the Copyright Office makes a strong case against the recipes as copyrightable subject matter. But wait: There’s more!

The United States Court of Appeals for the Seventh Circuit heard a case in 1996 that resulted in “the most extensive discussion of the copyrightability of recipes by any court.”[6] In that case, the Seventh Circuit vacated the ruling of the district court, which had entered a injunction against the defendant “after concluding that recipes . . . are protectable under copyright law.”[7] The Seventh Circuit characterized recipes as procedures or processes, and noted that these generally fall under the purview of patent law, not copyright.[8] The Seventh Circuit also quoted David Nimmer, author of the well-known treatise Nimmer on Copyright to support its conclusion that recipes are not copyrightable.[9]

Then, in 1998, the United States Court of Appeals for the Sixth Circuit came to the same conclusion.[10] That case involved copying of the recipe and design (I’ll write about design issues later) for a particular chocolate truffle, and the Sixth Circuit basically compared the list of ingredients in a recipe to a statement of facts, which are not copyrightable.

As Christopher Buccafusco notes, all of these opinions rest on the assumption that a recipe, any recipe, is no more than an unoriginal list of ingredients and/or steps.[11] Surely this assumption is overbroad. Even a culinary dunce like me can imagine writing a recipe that involves the modicum of creativity necessary to invoke copyright law. Nonetheless, the current state of copyright law and jurisprudence in the United States holds the view that recipes are not copyrightable. The wonderful thing about U.S. law, however, is that it is constantly changing and being re-interpreted, and no legal rule is set in stone (unless you are Justice Scalia). Therefore, it is possible to image a way for copyright law to apply to food in various ways other than the recipe itself. In fact, a number of legal scholars and I have explored this very notion, and it seems there is opportunity for creative culinarians to afford themselves of copyright protection. But I am choosing to save that discussion for a later post.

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[1] 17 U.S.C. § 102(a).

[2] 17 U.S.C. § 102(b).

[3] Id.

[4] U.S. Copyright Office, Recipes, http://www.copyright.gov/fls/fl122.html (last visited Sept. 20, 2010).

[5] 37 C.F.R. § 202.1(a) (2009).

[6] Christopher J. Buccafusco, On the Legal Consequence of Sauces: Should Thomas Keller’s Recipes be Per Se Copyrightable?, 24 Cardozo L. Rev. 1121, 1127 (2007).

[7] Publ’ns Int’l, Ltd. v. Meredith Corp., 88 F.3d 473, 475 (7th Cir. 1996).

[8] Id. at 481.

[9] Id.

[10] Lambing v. Godiva Chocolatier, No. 97-5697, 1998 U.S. App. LEXIS 1983 (6th Cir. Feb. 6, 1998).

[11] Buccafusco, supra note 6, at 1129.

Terminology Pt. 2: Trademarks and Trade Secrets

Continuing the last post regarding patents and copyrights, here is a quick glimpse at trademarks and trade secrets:

TRADEMARK: A product word, name, symbol, sound, or color that distinguishes one good or article of commerce from others in the market by indicating the source of the good. Unlike patents, but like copyrights, trademarks do not need to be registered in order to provide the owner with rights. However, registration is advantageous. Trademark rights are also unique in that they can last indefinitely as long as the mark is used in commerce. You may have seem the symbol "™" or "®" next to a logo or trade name. These indicate, respectively, that the name or mark is an unregistered trademark, or registered trademark. Ownership of a trademark prevents others in the market from using a mark that is likely to cause confusion among consumers.

The U.S. Patent and Trademark Office also considers what type of product to which the mark applies. Thus, I probably could not get away with using the mark “Betsy Crocker” to sell boxed cake mixes through grocery stores, as this is too similar to Betty Crocker®. However, I could probably start a construction company called “Betsy Crocker” (or maybe even “Betty Crocker”) because that is a completely different industry. Trademarks can be very valuable to the culinary world, where use of proper quality ingredients is essential. Imagine being unable to select the right brand of chocolate or flour because two trademarks were so similar? What if they were drastically different in quality?

TRADE SECRET: The Uniform Trade Secrets Act defines a trade secret as “information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.”[1]

To “boil” that down, a trade secret is nearly anything that adds value to a business because of its secrecy and is actively being kept secret. In the food world, perhaps two of the best-known examples of trade secrets are the formula for Coca-Cola® and the Original Recipe® for Kentucky Fried Chicken®. However, it is likely that nearly every professional kitchen and professional chef in the United States has one or two trade secrets, whether it is a secret recipe, secret preparation technique, or secret device.

Lastly, one major difference between patent and copyright versus trademark and trade secret law is that patent and copyright are strictly federal areas of law, whereas trademark law is a federal/state hybrid and trade secret law is state law only.

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[1] Uniform Trade Secrets Act § 1(4) (1985).

Font Sizes

As I am new to the Blogger interface, I am trying to figure out why my font has grown with each of my first three posts. I like the size of the last post the best, but mainly I would like it to be consistent. I'll work on that so that future posts are easier to read.

Terminology Pt. 1: Patents and Copyrights

As this blog unfolds, it will be easier to follow if readers have a basic understanding of intellectual property law. Thus, I will briefly introduce the four main areas of intellectual property in the United States and to help readers distinguish between them so that folks do not call a copyright a patent, or a trademark a copyright, and so forth (I have often seen such confusion when reading Internet forums about cake decorating, so lets sort these things out right here).

Because today is Constitution Day, and because patent rights and copyrights are based on the Constitution, today I’ll start with just patents and copyrights, saving trademarks and trade secrets for later.

PATENT: Generally speaking, a patent is a right to exclude others from making, using, selling, offering to sell, or importing the patented invention into the United States.[1] It can apply to a new and useful machine, process, article of manufacture, or composition of matter.[2] Patents last for 20 years from the date the application for patent is filed with the U.S. Patent and Trademark Office.

COPYRIGHT: Copyright protection applies to original works of authorship that have been fixed in a tangible medium of expression so that the work can be perceived or reproduced.[3] A copyright grants the owner exclusive rights to, among other things, reproduce the work, create derivative works based on the original, and distribute copies by sale, lease, or rental.[4] The duration of copyright protection for a work changed drastically over the course of the last century, but Congress has only lengthened that protection. For works created on or after January 1, 1978, copyright protection persists for the life of the author plus 70 years.

The key difference between patents and copyrights, is that patents apply to the “useful arts”[5] whereas copyrights apply to creative works of authorship. Thus, in a manner of speaking, you cannot patent a painting or a song, but you could copyright those things. However, you could perhaps obtain a patent on a new kind of paint, or for a new piece of recording equipment.

The other important difference is that obtaining a copyright is very easy, whereas obtaining a patent is relatively more difficult. All that is needed to obtain a copyright is to create an original work of authorship fixed in a tangible medium of expression; you don’t even have to register the work with the U.S. Copyright Office! The copyright attaches as soon as the work is created. On the other hand, obtaining a patent requires filing an application with the U.S. Patent and Trademark Office, making your case that the invention is new and useful, novel, and non-obvious, and hoping that no one else has discovered your invention before you, even if they didn’t patent it. Patent applications may take 18 months or more before they generate a patent.

The balance between these is that patents afford very strong protection to the inventor, while copyrights afford less strong protection to the artist. Interestingly, the people who founded the United States knew the value of innovation and creativity to society, and so they provided a basis for copyright and patent protection in the Constitution.[6] The founders knew that this protection would provide an incentive for artists and inventors to create new things, and that society would benefit in the long run as more inventions and works became available to the public.

After this brief discussion, it may also be clear that with respect to food itself, copyright law may be more relevant than patent law. Patent law will obviously apply to inventions like KitchenAid mixers or perhaps certain other kitchen implements of which my food ignorant mind is unaware. However, as the blog unfolds, and hopefully as more culinary specialists comment and participate, the application of patent law to the food itself, maybe as particular compositions of matter, will become more transparent.

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[1] 35 U.S.C. § 154(a)(1).

[2] 35 U.S.C. § 101.

[3] 17 U.S.C. § 102(a).

[4] 17 U.S.C. § 106.

[5] U.S. Const. art. 1 § 8 cl. 8.

[6] U.S. Const. art. 1 § 8 cl. 8. This clause gives Congress the power to “promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Id.

Audience

One interesting thing about this blog is that it is likely to attract two very different audiences. I expect it will be primarily of interest to individuals in the culinary arts who may have little or no understanding of intellectual property law. Therefore, I will compose most of my entries with this audience in mind.

At the same time I recognize that over time, lawyers and others in the legal profession may become interested in following this topic. Within this group, there are some who may already be familiar with intellectual property, and others whose knowledge may only skim the surface.

With that in mind, it will certainly be a challenge to compose entries and gather tidbits that always engage individuals from these divergent groups. Being new to blogging myself, perhaps this is a natural obstacle that bloggers encounter and I am simply discovering it on my own, rather than arising directly from the topic of this particular blog.

At any rate, I hope the blog is, at various times, educational, insightful, and helpful to everyone who happens to visit.

Inspiration

There are actually a number of things that inspired this blog. Most importantly, I have to give credit to my intellectual property professors at Lewis & Clark Law School, who were always encouraging, helpful, and most importantly highly entertaining in the classroom. They are Lydia Loren, Joseph Miller, and Doug Newell. With their support, I was able to explore the role that copyright law plays—or does not play, as it turns out—among artistic cake designers by writing a paper on the topic. It proved to be much more interesting than I expected, and I found that I wanted to broaden my exploration of the interaction between food and intellectual property law.

There seem to be some areas where there are well established rules pertaining to food, such as within trade secret law, but other areas where intellectual property law seems to fall short, such as copyright. Trademark and patent law also related to food, but in unique ways. One thing that I learned while working on my paper is that there has not been much written about the relationship between food and intellectual property law, and I hope to fill that gap.

This blog will mainly contain my personal reflections on the topic, but may also include some scholarly references, fun and interesting stories, and perhaps even some general thoughts on intellectual property in general. I will try to keep track of any relevant legal developments, both from the courts and legislative bodies, as well as non-legal developments or events that might seem significant.

Because I am not a cook, baker, chef, sugar artist, or any other type of professional (or even modestly-skilled) food creator, I do not expect I will often post recipes or food preparation tips. In fact, I could hardly say that I am well versed in the culinary arts, and I have never dined in a four-star restaurant. But I do enjoy eating good food, and I also enjoy pondering connections among seemingly unconnected but nonetheless related areas. Hence, I have begun this blog.