Social Norms in the Cake Design Community

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.

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.