One of Trump’s cakes—created for the Salute to Our Armed Services Ball—was an almost exact copy of one made for the last Obama inauguration, which was originally created by Duff Goldman. On January 20th, he tweeted images of the two cakes, pointing out that he did not bake the cake at this year’s Trump celebrations. The very next day, Terry MacIsaac, owner of Buttercream Bakeshop, took credit for the Trump cake on Instagram, telling The Washington Post that her client on the Trump team contacted the bakery with a photo looking for a copy. The baker initially tried to encourage use of the photo as inspiration, but ended up creating replica at the client’s insistence.
So, can cake designs result in intellectual property protection?
Yes, according to Terrell Miller, partner at Gardere recently sat down with IPWatchdog for an exclusive interview. Typically, patents protect inventions of new tangible things, copyrights protect artistic expression, and trademarks protect a name or symbol that identifies the source of goods or services. When it comes baking, under federal IP law, a recipe may be patented if it qualifies as a new invention. Per The United States Patent and Trademark Office, food products can be patented “when the combination of ingredients used, or the way they are processed, results in a food product totally unexpected.”
Excluding any questions regarding the rare patentability of a cake recipe, cake designs, under certain circumstances, may be protected under the laws of copyright and trademark. Specifically, for copyright, 17 USC 101 provides the relevant definition of a “pictorial, graphic, or sculptural work,” which may include two-dimensional and three-dimensional works relevant to cake designs. For example, if a cake design includes works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned, then such cake design can be protected under copyright.
“Simply stated, if the design incorporates original ‘pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects’ of the cake itself, then such design is subject to copyright protection,” he explained. “Thus, if the appearance of the cake’s two-dimensional or three-dimensional decorations, for example, are artistic themselves and capable of being recognized artistically apart from the function of the cake, then copyright protections are available.”
As for trademark, this is more of a rarity for cake designs. However, for instance, if a company were to use a unique shape and perhaps design in the decoration of its cakes, that becomes known by the public as a symbol or source identifier of the company making the cakes, then decorative design could qualify as a trademark. According to Miller, an example of this is the famous marshmallow Peep candy that is popular among consumers, especially during the Easter holiday season. The exact shape of the marshmallow Peep has been a registered trademark of its maker, Just Born, Inc., since 1998.
Today, baked good designs of all types do count as intellectual property, according to Miller, for the same reasons listed above. For example, if a baker creates an original two-dimensional portrait of himself out of frosting on a cake, then the portrait is an original work of authorship that is fixed in a tangible medium, and capable of being separated from the utilitarian function of the cake. He said, “In this case, it’s simply original art with the medium being food coloring and frosting, instead of acrylic paints, on a cake, instead of a canvass.”
In terms of the case with one of President Trump’s cakes, without knowing the specifics, as to whether permission was granted, and excluding any defenses under fair use (17 USC 107), a violation of copyright law would be of serious concern.
There have also been a few cases where confectionary trademark was litigated. In fact, per Quartz, in 2015, Disney, Sanrio (the makers of Hello Kitty), and other plaintiffs sued Michigan resident George Wilson in federal court in California for selling frosting designs they said infringed on their trademarks. The case did not get very far, however, because the defendant had a pending bankruptcy case and the court stayed the IP case pending resolution of the bankruptcy case.
So, how can bakers protect themselves from copyright infringement?
Miller advised, “While it’s permissible to use prior works as inspiration, it’s a fine line when inspiration crosses over into copying the prior work or creating a derivative of the prior work, both of which are prohibited under the copyright laws.”