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.

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.

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. 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.