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Intellectual property protection for cake design?


autoswing
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Hi all, first of all I really enjoy reading all the interesting stuff on this forum. It's truly a unique community!

I am actually preparing for my seminar paper, and would really appreciate any feedback from all of you cake and pastry gourmands.

My topic is whether custom cake design is considered as art and should be able to be protected under intellectual property. I emailed several cake artists, unfortunately, I got turned down. I would like to have your opinions. Your comments would be greatly appreciated.

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The reality is that people are going to copy a design they see in a magazine, another wedding, whereever the photo happens to appear. So regardless of how the original artist feels about his/her design, the ability to enforce an intellectual property decision is impossible.

If you are near the bakery who created the cake, it would be nice if the customer went to that bakery and got their "signature" design. But if people are shopping on price, there is always someone who is willing to do (try) the design for less money. Some places ship cake, and there is one bakery in Portland (I think) who encourages people to buy from the original artist and will ship nationwide. I know this artist contacted a competitor and told him to remove a picture from his site as it was an exact copy of one of her copyright designs.

There is one organization who makes fake cakes. When I asked them if they copy designs from bakers, they said that they put their own spin on any design someone asks them to copy so it's not really an exact copy.

What would be nice is if bakers and cake artists acknowledged a design was inspired by or came from someone else on their web sites.

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I am not a lawyer but as I understand it ...

You can in principle protect your design, as a three dimensional object by asserting your design right (like copy right but for 3 dimensional objects), or by registering the design (like patents, but for objects).

However the problem is then enforcement. Could you afford to sue an infringer and prove your case in a court? Very expensive, and you may not win. For copyright or design right you have to prove its a copy, not a re-invention.

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it's like any artwork, once you made it you own the copy right to it. You can, but don't have to register it, as long as you have proof that you made it first.

Of course, none of this will prevent anybody from making a copy or using your design as a starting point and going after somebody is costly - and in case of a cake probably not worth it. Unless you walk down the aisle at Safeway and see it on a box of some premixed cake thing. My guess would be that cakes don't sell for tens of thousands of $, the monetary damage would probably be so small that it won't be worth your time and money to go after the copy baker.

There's lots of info online regarding copyright for artwork, and it does not matter if it's a sculpture (which you could probably call a cake) or a drawing, a photograph or a painting. wetcanvas.com has lots of info too for example.

Add to that the fact that you'd most likely never hear of a copy cake, I'd personally not worry about it. Unless you make a cake for a high profile person (Obama, Britney, The Stones etc).

But in general, once you created something unique you own the right for it and if you have proof you could go after a copy cat baker and would most likely win. Though the $ would hardly be worth it.

There are millions of cakes out there that infringe on some very strong (and strongly defended) copyright like Disney characters or barbies etc. With the option to use an inkjet printer to put just about any picture on a cake this has increased a lot too. And I seriously doubt that Judy's bakery or Tom's Cake Stop got a license to put those characters on their proudly displayed birthday cake creations, as I doubt some kid's parents would be willing to pay for that...

So, unless you create truly unique cakes, I'd probably not worry about it and even if I came across a copy cake I'd probably just be happy that it inspired somebody else to try to make a copy.

Now, I'm not a baker, I'm a small time artist that cooks a lot, though take all this with a grain of salt of confectioner's sugar, if you're really worried get a copyright lawyer involved.

Of course, with cakes my guess is that there's only so much unique stuff you can do and chances are that something quite similar to what you bake was done before, so proving that what you made is truly unique and has never been done before might not be easy?

Just my two marzipan roses, hope this helped?

Goolge will get you tons of info about copyright and artist's copyright and a truly wonderful cake is a work of art, even if you can eat it. There are no restrictions in which medium you have to use for your art.

The only real way to protect your design is not to show it to anybody, but that's kind of pointless~~

Just don't put Mickey and Barbie on the cake.....

[edit] to add, any intellectual work is copyrighted, regardless of what it's made from/of/with. So - w/o being a lawyer - I'd say yes, you can protect the design if it's really unique. But that's a big if, as I'm sure you take your inspiration from things you've seen.

Oh, and don't bake cakes that look like some famous buildings/people/items, as many of those own the copyright for any likeness in any medium (even photography of said building), and some of them are very aggressive in protecting it.

If in doubt ask a specialist lawyer. Otherwise don't worry and take copy cats as flattery :-)

[edit]

Edited by OliverB (log)

"And don't forget music - music in the kitchen is an essential ingredient!"

- Thomas Keller

Diablo Kitchen, my food blog

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I'm assuming here that you're talking about US law. Let's go to the root of the whole thing, Article I, Section 8, Clause 8 of the United States Constitution:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

My hope is that you take a step back and look at what is currently called "Intellectual Property" and ask why this system was created and what it's good and bad points are.

The US Constitution establishes a temporary period of exclusivity for the specific purpose of promoting progress, presumably for the common good. There's nothing "natural" or "god-given" about patent/copyright - it's an intervention by government in the marketplace to promote long term societal benefits (e-gads! socialism!). (Speaking of the temporary nature of that protection, it's been decades now that Mickey Mouse should have passed into the public domain - curiously, each time that deadline has approached, the Congress has enacted bills extending the period of Copyright...)

Personally, I am an architect - some of what I do is limited by patent-encumbered technologies, and some of what I do is protected by copyrights. Our technical drawings are protected by Copyright and contractual agreements (typically, you can't take the "blueprints" for a building and build it in other places without the agreement of the Architect.) But the issue that I think you are interested in is "appearance". In the case of architecture, there is some protection for a design, but it has to be pretty distinctive, and the copy has to be pretty darn direct, in order to have any chance in court. Also, the firm suing needs to have major resources and the potential damages award has to be pretty big to make it worth suing.

But in general, that's a good thing. It's for the best that architects don't spend a lot of time worrying that their design may be similar to another building. There are only so many ways to put walls, windows, doors, columns and roofs together to stand up, keep the rain out and such. We are all better off not worrying about "copying" very much and getting on with making beautiful, functional buildings as much as possible. If I take a bunch of photos of a Frank Gehry building and make a pretty exact copy of it somewhere, that's a problem. But if I like the idea of a curved wall/roof that's clad with sheet metal "scales" and incorporate it into my own new building, that's fine. In fact, that's how design progresses - standing on the shoulders of those who came before us, and "swapping ideas" with our contemporaries.

Don't forget the quote attributed to Picaso:

Good artists copy. Great artists steal.

He's talking about both his contemporaries, from whom he learned a great deal, and himself. If we over-protect designs and ideas, we actually will slow down the pace of discovery and innovation.

Don't forget about learning: Taking a photo of something doesn't get much information into your brain. Drawing it helps you to discover a lot about what you are looking at. Trying to make an exact copy teaches you a huge amount about the original and the process that went into its creation. In fact, making exact copies was the core of education for most crafts/trades (for example, furniture making) for thousands of years. Just don't take credit for the design of your copy.

Sometimes, industries thrive because of copying and piracy. Here's a piece in the NTY about something called "the piracy paradox":

http://www.nytimes.com/2007/04/05/business...ml?ref=business

Piracy helps the fashion/apparel industry - once a new design has been around long enough to be "knocked off", it is no longer fashionable, so customers ditch the old designs and spend top dollar to buy the newest in new and keep up with the changing trends. If it weren't for that cycle, people would buy practical, durable clothes infrequently, and there wouldn't be high end boutiques and department stores churning through billions of dollars. (I'm looking out my office window at the new Barney's department store in Chicago - they doubled the size of the store in the middle of this recession. Yep - something is going alright for the fashion industry, despite rampant knock-offs.)

Also, don't forget that knock-offs can be free advertising. Let's say you come up with a unique design - the "Autoswing style". It's a big hit on the internet, other bakeries start ripping it off, popularizing it. Someone gets a knock-off cake for a big party. Conversation at the party turns to the cool cake. Soon, everyone at the party knows that it's a rip-off of the cakes at Autoswing Bakery. And maybe the host is embarrassed that she got "an imitation." Over the next couple of months, Autoswing Bakery gets a bunch of new orders for their signature cakes from people at that party. Ta da! Piracy generates business for the innovator. (I'm basing this on the origins of Metallica - before they had a record deal, bootleg tapes of their shows/songs were circulating, creating new fans, who would come to their shows. That fan base led to their record deal. Piracy=free advertising.)

Ripping off other people's work and not giving them credit sucks. But don't get blindered by the "Intellectual Property" maximalist propoganda out there. As a society we need to find a balance between openness and protecting the inventor. As a designer and innovator, you need to have some spine and self-confidence and not worry too much about rip-offs.

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Don't forget the quote attributed to Picaso:
Good artists copy. Great artists steal.

He's talking about both his contemporaries, from whom he learned a great deal, and himself. If we over-protect designs and ideas, we actually will slow down the pace of discovery and innovation.

Don't forget about learning: Taking a photo of something doesn't get much information into your brain. Drawing it helps you to discover a lot about what you are looking at. Trying to make an exact copy teaches you a huge amount about the original and the process that went into its creation. In fact, making exact copies was the core of education for most crafts/trades (for example, furniture making) for thousands of years. Just don't take credit for the design of your copy.

This whole post was right to the point, but this particular paragraph summed it up for me.

As I read the original query here too, I thought of the books published by folks like Sylvia Weinstock, Martha Stewart & Wendy Kromer, Toba Garrett, Peggy Porschen, Nicholas Lodge, etc., who publish their cake designs precisely for the purpose of having folks buy the books so they can at least attempt to copy the designs. If you google wedding cakes, it's impossible to discover where many of the designs actually originate. And so far I haven't seen any evidence that Weinstock, Stewart, Kromer, etc., have been suing folks over copyright infringement.

I'm only just beginning to explore cakes and cake design. The only way I can do that is to study and copy other people who make what I consider to be really beautiful cakes, at least structurally. The other equally important element is the cake itself, the basic cake with fillings and flavors and so forth. If you want to sell cakes, you can't have one without the other. If you make really gorgeous cakes that taste awful and that people don't enjoy eating, then eventually people won't buy your cakes. Unless they're designed and structured strictly as an exhibit.

Edited by devlin (log)
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The reality is that people are going to copy a design they see in a magazine, another wedding, whereever the photo happens to appear.  So regardless of how the original artist feels about his/her design, the ability to enforce an intellectual property decision is impossible.

What would be nice is if bakers and cake artists acknowledged a design was inspired by or came from someone else on their web sites.

As with any work of art, you also have to consider that a wedding cake is usually commissioned -- so it should be made to the client's aesthetic wishes as however they were expressed to the maker of the cake. Ergo, a bride will show a baker stuff from magazines and books, etc., and the designer knows that whatever they put out into the media is going to be used at least as a template for other cakes.

If no visual guidance is given (a rarity, and for myself at least, a mixed blessing) the baker can feel free to execute a design of their own creation. The design process is at least as intensive as the baking, and takes just as much effort.

Those "really creative" cakes that are copies of favorite things? I know several companies have sued over the Vuitton logo, John Deere tractors, etc. being copied in cake.

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Err...if the design is created for and paid for by the client, in the absence of any specific wording in the contract I believe i would count as "work for hire" and the intellectual property created becomes that of the client, not the designer or baker.

Thus a cake (or dress) made for and paid for by a celeb could not be reproduced for the media or the masses...unless the contract explicitly says so.

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