Intellectual Property Comes in All Shapes, Sizes and Flavors

At President Trump’s “The Salute to Our
Armed Services Ball” an interesting observation was made.  The cake was almost an exact copy of a cake used for President Obama four years ago.  This spiked the conversation on whether cake designs, and other similar objects, are considered intellectual property.  Read where this conversation has gone in the article from Quartz below.

Do cake designs count as intellectual property?

Written by Ephrat Livni | January 24, 2017

Cake hasn’t been controversial since the 1800s when French queen consort Marie Antoinette allegedly declared
France’s poor, who had no bread, should eat brioche instead (in
English: “let them eat cake”). But at US president Donald Trump’s
inauguration celebrations on Jan. 20, cake became a matter of debate

One of Trump’s celebratory cakes—created for the The Salute to Our
Armed Services Ball—was an almost exact imitation of a confection made
for the last Obama inauguration. The story of the copycat cake
illuminates the complexity of American intellectual property law.

Duff Goldman created the original Obama cake. On Jan. 20, he tweeted
images of the two confections, noting that he did not bake the cake at
this year’s Trump celebrations.

The next day, Terry MacIsaac, owner of the Washington, DC, bakery Buttercream Bakeshop, took credit for the Trump cake on Instagram. She told The Washington Post
that her client—an unnamed member of the Trump team—contacted the
bakery with a photo a few weeks ago “pretty last minute,” seeking a
copy. The baker initially tried to encourage use of the photo as
“inspiration” but eventually relented and created a replica at the
client’s insistence.

MacIsaac’s comments indicate that she had some sense of the slippery
ground she was treading on. Bakers can’t just copy each other’s cake
designs willy-nilly—though, of course, they are rarely in a position to
get caught copying, since the potential evidence is meant to be

Intellectual property law is a vast and difficult topic, covering patents, copyrights, and trademarks.
Generally speaking, 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 intellectual property law a recipe may be patented
if it qualifies as a new or novel invention, which is rare. The US
Patent and Trademark Office explains that food products can be patented
“when the combination of ingredients used, or the way they are
processed, results in a food product totally unexpected.” These sorts of
novel recipes more often come out of a lab than a kitchen.

Confections can also qualify for trademark protections if they have
non-functional aspects that consumers come to recognize. For example,
Carvel’s “Fudgie the Whale” ice cream cake, shaped like a whale, is a federally registered trademark.

There have been some court cases where confectionary trademark was litigated: 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.
The defendant had a pending bankruptcy case and the court stayed the IP case pending resolution of the bankruptcy case.

If there’s an issue with Trump’s Cakegate, however, it won’t be about
trademark; it’ll be a fight over copyright, which protects artistic

Natasha Reed, an IP lawyer at the law firm Foley Hoag in New York, explained in a 2016 blog post
that when it comes to food, copyright law protects an artist’s
original, creative expression fixed in a tangible medium—but not the
merely utilitarian aspect. “Copyright law will apply only if the food
incorporates highly creative features that are separable (either
physically or conceptually) from the food’s utilitarian features,” she
writes. In other words, it can’t be about the recipe.

Arguably, Goldman’s original Obama cake was an artistic expression
that qualifies for IP protection. The part of the cake that was copied
was his expression—his vision, the product of his mind, and not his recipe.

Still, MacIsaac was right to tell her client that they could use the
Obama cake as “inspiration.” A baker who uses another’s work as
inspiration is not necessarily violating copyright, Reed explains. But
the line between inspiration and imitation can be fine. The critical
question, MacIsaac says, “is whether you have borrowed too much and
impermissibly created a derivative work, or whether you have transformed
the original into a new creation that could itself be considered

A derivative work created without permission arguably infringes on
copyright. But for a federal case to be made of the matter, well,
someone has to make a federal case by filing a legal complaint—federal copyright laws preempted state intellectual property protections in 1978—and that isn’t likely to happen here.

There’s a fair amount of confection copyright chatter online these
days as more and more people post food photos on social media, and chefs
are becoming celebrities, but based on Quartz’s investigation of open
cases, there doesn’t actually appear to be any active cake copyright
litigation in the US. There are many possible reasons why: because
the notion of cake as artistic expression qualifying for copyright is
relatively new; because damages are difficult to prove; or because often
a cease and desist letter is enough to stop any allegedly infringing
action. For example, in 2011, the International Olympic Committee
preempted any potential infringement by sending advance warning to
British bakers that they could not frost cakes with the Olympics logo or any other official event symbol.

It’s unlikely the Trump Cakegate will turn litigious, either; Goldman showed solidarity with his fellow chef, MacIsaac, after things got awkward for her on Jan. 21, tweeting congratulations to Buttercream Bakery on its replica.

Goldman may have been guided to this decision by his professional
ethical obligations, rather than US law. The International Association
of Culinary Professionals Code of Ethics
state that no culinary professional should seek to harm the reputation
of another. The friendly resolution was in keeping with the baker’s
obligations, and he appeared to be giving MacIsaac retroactive

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