Friday, December 9, 2011

Can You Copyright A Cake?

Disclaimer: I'm not an attorney, and I'm sure that you could pay an attorney to tell you something that you want to hear if you don't agree with me. But my BS detector is generally pretty accurate, and for this topic I call shenanigans.)

This is a topic that comes up a lot and usually gets pretty stupid. Can you really copyright a cake or a cookie design?

I know that you can copyright photographs and text that you've written yourself, but that's because they're ORIGINAL works. Most designs of baked goods kind of straddle the line between original works because they're executed by an individual, and commonly-known themes, which are free for all to use.

Copyright restrictions protect original works of art. They don't prevent people from doing designs that are based on commonly-found themes. If you make a cake that's based on something that a lot of people could think of independently of each other, it's probably not something that you can enforce as a copyright. If you're not the first person to think up something, then it's going to be difficult to prove that it's an original idea.

I'm not talking about putting Mickey Mouse or other well-known cartoons on your cakes. That's clearly a copyright violation of an original work of art and usually involves trademarks as well. I'm talking about someone saying "You can't do the design that I did because I copyrighted it" when they're pointing to a cake that has red roses on it, or a cookie in the shape of a heart.

Yeah, sure, those designs have never been done before.

Here's the thing...If you ever dragged someone into court over something like this, all they'd probably have to do is find any number of examples that showed your "original" design had been done by other people prior to you doing it.

(Check out this google search for "heart cookies." There are some pretty common designs here. The ones that use cornelli lace must be violating my copyright, since I made cookies like that a few years ago.)

Even more ridiculous are the people who say "I took the idea from so-and-so and changed it a little so that it wasn't completely the same. Now I copyrighted it and nobody can do the same design, even if you change it yourself, because that's a derivative work."

So....variations on cake and cookie designs are copyright protected as a derivative work?? But if they took the idea from someone else in the first place, what does that mean for their own claim of copyright?? Makes no sense.

Or the woman on Etsy who sells wafer paper butterflies that were cut out using a Cricut, but posts all over that this was her idea and nobody else can make the same thing. If you didn't invent wafer paper, butterflies or the Cricut, I doubt that it's an enforceable copyright, dear. And I did that last year, so you're violating MY copyright on the uncopyrightable item.

So to attempt to clear this up, I consulted a couple of copyright attorneys. (Note that these are the attorneys' opinions, and if you REALLY want to pay someone to copyright all of your designs I'm sure that there's some lawyer somewhere who's willing to take your money.) The responses I got to the question of whether a cake or cookie design can be copyrighted were:

The copyright would not accomplish much in a situation like this, because anyone who independently comes up with the same simple idea would be allowed to do it too. Copyright only would at best stop *copying*.

As for basing your work on someone else's, you can take their idea, but don't take their creative design. (So you can do a cookie with a heart or football, but then draw your own heart or your own football.)

Copyright only stops copying. So don't copy. You can see an idea of a pie in the shape of a football, go home, and make your own, different implementation of that same idea. There is then no copyright issue at all, because nobody owns the idea of a football-shaped pie, and you did not copy anything more than that high-level idea. Take ideas, nothing more, and you are completely fine.

And this:

Copyright registration is available for a variety of original creative works. For visual arts, the design work must contain a minimum level of originality and creativity.
Common symbols such as "stars & stripes" are not creative or original enough. You may seek copyright registration for original design work provided your designs contain some level of
originality and creativity.
The threshold isn't necessary that high, as we have seen many very simple designs successfully register. Upon filing, it's then up to the US Copyright Office to decide whether or not the work meets that threshold.

So you CAN copyright the specific design that you do to a specific cookie IF it's original enough to be approved by the U.S. Copyright Office. But moving a star onto a red stripe and not putting it on the white stripe is probably not going to be enough to constitute original creativity. (If you think that's original and creative then I feel kind of sorry for you.)

So basically, unless you've come up with something that's never been seen before (that would be Mickey Mouse when he was first drawn) you really don't have a leg to stand on as far as claiming that you're the inventor of a heart with a swirl on it. You're going to have to prove that your design is minimally original and creative, which could be difficult if anyone else has ever done the same thing.

And the more common the theme, the more likely that multiple people will come up with the same idea.

Making a cake with a cascade of roses on it isn't going to be something that you can copyright. It can annoy the heck out of you if someone in the same market copies a design that you came up with (that's happened to me and it does irk you, I have to say), but it isn't a federal offense. Especially if anyone in the world has done a design or technique that was similar in the past. If you really want to look, you can probably find people whose work you "copied" even if you'd never seen their stuff before. There aren't that many original ideas out there.

A good example is the ruffle cakes that are popular now. Ruffles have been done for years on cakes, and on clothing too. So putting a ruffle on a cake might be trendy and "now" but it's probably not something that can be copyrighted and enforced. If you don't have the patent on ruffles, and someone puts ruffles on a cake in a different way than you did, or before you did, then oh well.

If you do want to try, though, you can always apply to register a copyright on an individual item. It only costs $35 for each application, and if the Copyright Office denies your application you'll only be out that much. For each item.

Don't use other people's photographs, which ARE copyrighted as an original work, and it's nice if you do try to give credit to someone if you use their cake as a direct inspiration for something that you did. But don't start threatening to drag someone into court for decorating a cookie like a heart. That's just petty and dumb. And loony. Seriously loony.


Kara Buntin owns A Cake To Remember LLC, custom wedding cakes in Richmond VA




3 comments:

faithy said...

Great post! I'm going to share it on my FB! :D

Debby said...

FINALLY, some common sense! How anyone can think they "own" a not-too-original design is beyond me.

Bea GarcĂ­a said...

Very interesting post...