Cake! Just the word makes our mouths water. Which one are you craving? Chocolate? Victorian sponge cake? Red velvet? Devil’s food cake? Or maybe a slice of cheesecake? There are so many options that all sound wonderful. Be it a birthday, a wedding, or any other special occasion, having some cake makes it better. It is a representation of happiness and comfort and can be said to make events more enjoyable. Has it, however, ever occurred to you that a piece of cake you had at a birthday party was copyright infringed?
Not many people are aware of the Intellectual Property (IP) laws applicable to cake designs. There are two main branches of Intellectual Property, namely copyright and industrial property. While industrial property deals with patents and trademarks, copyright law deals with artistic and literary creations or inventions. It gives ownership and rights to the author, provided that the creation is original and in a tangible form. Ideas that have not yet been written or drawn out in any physical form do not come under copyright protection. Copyright law applied to cakes has become the subject of heated debate in the cake and baking industry, with both sides presenting valid arguments and reasons.
Can Designs over Cake be Copyright Protected?
It’s not wrong to say that cake designs nowadays are a work of art. The Baker takes time and energy and uses his skills to the best of his abilities to design a cake. One can say bakers have now become cake designer artists in a sense. But this also means that the specific cake designs the artist creates and puts in a physical form is vulnerable to being copyright infringed. Anything from a cake mold, to the shapes and decorations, to the frosting design and even to the method used to create a particular design can be copied.
There are several ways in which IP laws can protect businesses such as bakeries or even large corporations. Trademark law is used to protect any marks associated with the company or its products. For the protection of confidential business information, the trade secret law is used. Patent law protects new and original inventions and creations. And lastly, copyright law is used when one wants to protect expressive art including cake designs.
There are many reasons for which copyright law can protect cake designs. Cake designs are a work of authorship. They are the tangible and original works of the author and possess the degree of creativity required by a copyright law, clearly showing signs of creativity and originality. As the law on cake designs is unclear, many are not sure if recipes would come under the protection of copyright law. The mere listing of ingredients is not protected by copyright as it cannot be considered to be original. Cake designs fit under the graphical, pictorial and sculptural works category of copyright law. Although copyright laws require no form of fixation, some argue that because a cake is usually consumed after the presentation, the design is not fixed and hence should not be protected by copyright. Today, with creativity flowing in every direction of every sector, cakes are considered more as a work of art rather than a chore of baking. The taste does matter – but it is not all that matters now. The weight, the look, the design, the color, the shape – basically everything. The generic marble white cake on weddings to the symbolic cake in the shape and color of a football field – increases the trend and more possibly, the demand of designer bakers.
Critics have disputed that using IP protection for cake designs is unnecessary given that imitation is a common practice in chef culture and follows the idea that “Imitation is the best form of flattery.” Instead, to prevent others from benefitting from their hard work, they should be encouraged to attach the copyright symbol to picture of their cakes and designs on display which may deter consumers from printing the designs and lead other chefs not to copy. Half of the trade would vanish for bakers and cake businesses if they did not offer cakes that represented children’s favorite cartoon characters.
Some argue that the law concerning cake designs is unclear and ambiguous. Cake designs can be protected under IP by four different kinds of laws: copyright, trademark, trade secret law and patents. Trade secret law applies to cake designs only when it is private and not disclosed to the public. Even though the design may look simple, it can have non-obvious concepts that the chef doesn’t want to make available to the public. The baker should have the right to protect the design under trade secret law until disclosed.
Design patents are a form of patent law that protects cake designs. However, for an invention to be protected under patent law, it has to be an article of manufacture. The issue is debatable as many don’t consider cake design to be articles of manufacture and hence are not covered under the law. Just as books, music or art cannot be patented as they are only the author's words applied to paper and not articles of manufacture, cake designers can claim for creative expression, but there is no article of manufacture to be claimed. While IP protection by patent law on cake designs is debatable, one thing is certain, bakers work hard on their creations, and copyright laws provide protection to creative expressions of ideas, which makes them better suited for these types of works.
But not just generic cakes; cup-cakes too! In the United States, US Patent Number D616,260 filed on 31 July 2009 is a design patent granted to a cupcake mold – but, please don’t be surprised. There are a number of cupcake molds that have been granted intellectual property protection. Moreover, in the United States, copyrighting in the baking industry has been extended to concern the animated characters that appear on cakes and cookies. In theory, using designs of animated characters on pastries without the owner’s permission is not authorized given that it would impede on their copyrights, their trademark rights, and their personality rights. In practice, most people wouldn’t think twice about getting a “Mikey Mouse” design on their children’s birthday cakes. But if you want to stay on the safe side, it’s better to avoid the images of any cartoons without obtaining the authorization of their owner. Cake designers can be guilty of appropriating another person or entity’s work. The Copyright Act prohibits the production of “derivative works”, that is, works that take the copyrighted work as a starting point and change an aspect of it, but where the work can clearly be confused with the owner’s copyrighted work. For instance, if your cake has a picture of Mickey Mouse with shoes that are green instead of being yellow, you would still be held accountable for copying that picture on a birthday cake.
The famous proverb ‘ignorance is bliss’ does not apply in court when a baker is accused of copyright infringement. However, copyright laws on cake designs only apply when the cake is intended to be sold for profit or an advertisement, baking cakes at home for friends and family does not count as an infringement of the law. Cake design is an expression of a chef’s creative idea and is, therefore, protectable under copyright law. Copyright law promotes originality and creativity, both concepts found in cake designing.
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