Duff Goldman of Charm City Cakes, one of our hometown heroes in Baltimore aka the Ace of Cakes, created a striking cake for President Obama’s inauguration in 2012. The cake design caught the eye of the incoming presidential administration who commissioned another pastry chef, Buttercream Bake Shop, to create a replica of the creation of the Ace.
Can the pastry chef who produced the cake replica be held responsible for the theft of the Ace’s cake design?
In theory, a three-dimensional drawing can be protected by copyright or patent law. Patent law generally protects utility inventions, but a designer can obtain a design patent that protects the ornamentation of the design for 15 years. To obtain such patent protection, the designer must successfully “pursue” an application for a design patent until the Patent Office is satisfied – a costly process that takes several years.
Copyright law is meant to be more user-friendly and less expensive. Copyright protection “attaches” to the design as soon as it is fixed on a physical medium. Copyright does not require the designer to first register copyright or complete other formalities, so protection is immediate and free. The design of the cake is fixed during the drying of its icing and copyright protection. Easy, right?
Not so fast. To take legal action for copyright infringement, a valid copyright registration is required. Yes – I said copyright attaches without formalities, but copyright law requires copyright registration before litigation for three reasons. A copyright registration provides (1) proof of copyright ownership; (2) a presumption that the copyright is valid; and (3) the option to elect to recover statutory damages if the registration date precedes the infringement. The choice to seek statutory damages as a remedy allows the court to decide the amount and calculation of damages without proof of the owner’s losses or the infringer’s profits from the design.
So, if the Ace files for copyright registration in 2012, the allegedly infringing cake design could be immediately sued for copyright infringement, and if the Ace proves that there is a copyright infringement, statutory damages would be available. Great fact, the second pastry chef admitted that she had been tasked with reproducing the original design on the cake that the president and vice-president would cut with a ceremonial sword. Slam-dunk!
Again, not so fast. A valid copyright must be a subject matter protected by copyright and meet minimum standards of creativity. Copyright law does not protect functional features, geometric shapes, including cylinders, stripes, color or lines. Layer cakes as food are functional.
Unlike some of Ace’s whimsical sculptural cakes, this inaugural cake design is unlikely to include any copyrighted subject matter. The cake deploys stacked cylindrical layers, solid color layers, stripes, narrow color bands, stars and coin shapes that are not protectable. There remains the bunting, the presidential seal and the seals of the army, navy, marines, air force and coast guard. Government seals belong to the federal government and are prohibited for unofficial use; and the bunting is not protectable as a “do-it-yourself scene” at government galas.
Moral rights (rights protecting the integrity of an artist’s name and designs, depending on applicable law) can protect Ace’s cake design, but not in the United States. U.S. copyright law provides limited moral rights to protect certain eligible works of art by visual artists. Cake design is not an eligible work of art.