As part of my research into the cake design industry in search of possible norms, I sent a survey to about 30 cake artists from a variety of backgrounds and throughout the U.S. and Canada. My survey was intended to elicit narrative responses to questions about copying in the cake design community and norms related to copying. I had about ten respondents, and also talked with a few cake designers over the phone.
My research revealed that, unlike other artist communities such as stand up comedians, the cake community has not solidified any norms. For example, among stand up comedians, there is a norm that whoever tells a joke first in a broadcast "owns" that joke such that other comedians will be shunned if they copy it. In fact, if one comedian appears to knowingly use material developed by another comedian, and is caught, there are negative consequences even if the original act was never broadcast. In contrast, cake designers were only able to confirm that copying is a problem in their community, and that the best designers generally do not copy out of respect for others and their own talents.
Based on my research, I uncovered a few informal norms in the cake design community that may not affect the applicability of copyright law, but do have practical implications for the use of copyright as a legal tool.
First, the cake design community is one of sharing and caring, which makes use of any exclusive rights such as copyrights very difficult. It is common for groups of cake designers to get together and actively share their designs and design processes. Where designers cannot meet in person, there are vast amounts of media to consume that teach how to create particular designs: books, websites, magazines, television shows, and videos are all available to virtually anyone anywhere in the world. Even where a cake is not featured in a "how-to" format, it is common that a designer will try to recreate–or at least use for inspiration–a single photograph of a particular cake from a magazine or website. Thus, there appears to be a norm among cake designers that some amount of copying is acceptable because it is part of the culture of the community.
Second, there appears to be a dichotomy in the industry. Some designers are pushing themselves to become better designers and purposefully use other's designs as inspiration while they strive to be original in their own right. On the other hand, some designers are less artistic and appear content to either slavishly copy others' designs or aren't concerned with being original and building a name for themselves based on their own creativity. (Perhaps this is the sugar art equivalent of the difference between the band CAKE and a CAKE cover band?) This characteristic of the community indicates that there are some designers who value their own originality, and are more likely to be offended when their original design is copied. These artists are also the most likely to assert copyright protection, but it appears that no cake artist has ever done so. Thus, there must be a norm that allows for some amount of self-policing to prevent cake cover artists from profiting off of other's designs without permission.
Third, it seems that even when a cake artist's design is copied, she is more likely to be concerned about whether the design is attributed to her than suing for copyright infringement. As one artist pointed out, "copyrighting is easy, suing is hard." The acknowledgement that suing is hard is very important, as unlike the music, movie, and publishing industries, there is no central content owner with millions of dollars ready to pursue litigation because 2 Live Crew wants to make fun of Pretty Woman (see Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994)). In the cake industry, there are essentially only individuals, with their individual interests and individual (or personal business') financial resources. The cost of litigation is highly unlikely to be overcome by the potential reward of success, because the alleged infringer is unlikely to have greatly benefited from the copying.
As a result of my observations, I have suggested that the cake design community could benefit greatly from formalizing three norms. These norms would not only allow designers to reap the benefits of their originality, they would allow room to continue the caring and sharing traditions while providing structure for self-policing. I suggest the norms of attribution, controlled copying, and paying it forward. Attribution simply means that cake artists must state when their design was copied from, or inspired by another artist's work. Controlled copying means that copying without permission is acceptable when the copying was done based on a "how to" format publication. However, copying without permission from any other type of source is not acceptable. Paying it forward is related to controlled copying in that, where one artist teaches another in person, the learner is allowed to then teach that same technique or design without permission. As for violations of these norms, perhaps the community should identify or form a governing body, such as the International Cake Exploration Societé (ICES), to help police and punish artists who continually violate the norms. Sanctions may include disallowance from design competitions, lack of access to certain design resources, or in extreme situations revoking titles or awards.
That, in a nutshell, is what I discovered about norms among cake designers. Obviously, as I have mentioned before, I am not the right person to make the case for adopting these norms. Someone in the industry is welcome to take my work and adopt it into a useful structure to help the industry continue to grow in a successful fashion.