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.
[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).
