Today’s article is a guest post by Diane Klein from the University of La Verne College of Law. The opinions in this article are her own but, following my recent post about the Trump plagiarism stories it seemed wise to bring someone in with more expertise to discuss the story over the plagiarized cake.

inte: This article has also been crossposted here, with permission, from Dorf On Law

Inauguration Cake ImageEarlier this month, unnamed representatives of the Trump Administration commissioned Washington, D.C.’s Buttercream Bakeshop

(and its owner, Tiffany MacIsaac), to make a cake for Trump’s “Salute to Our Armed Services” ball on Friday, January 20, 2017. As bakery clients frequently do, they brought in a photograph of another cake. But this prior cake was not merely to be used as “inspiration” – the instructions were to “replicate” it, as precisely as possible. And what cake was to be copied? A nine-tier showstopping cake made by Food Network celebrity chef Duff Goldman – for the Obama Administration “Commander-in-Chief” inaugural ball in January, 2013.

Goldman described the cake to the Washington Post on January 20, 2013, this way: “a silver, 18-inch base that becomes light blue, then navy blue, as it tapers to the top. The bottom layer will boast red stripes, while another layer will feature red, white and blue bunting. The cake will include not just the presidential seal, but also the seals of the five branches of the military, each made with fondant, gum paste and royal icing. Stars attached to wires will appear to burst from the creation.” The tiers of the cake included many different flavors: red velvet with cream cheese frosting, pumpkin-chocolate chip (with chocolate fudge), and lemon-poppy and pineapple-coconut (with buttercream).

As with the use of the Rolling Stones’ “You Can’t Always Get What You Want” and “Heart of Stone” by the irony-impaired Trump team, no permission was obtained from the original creator of the work. There is no question that the use for public performance of the copyrighted music of another is unlawful copyright infringement (though whether any legal action will be pursued is unknown). But what about the copycake? Does Duff Goldman have a cause of action against MacIsaac, Buttercream, or even the White House?

Two theories suggest themselves: copyright infringement and unfair competition.

For a copyright infringement action to be viable, of course, the underlying subject matter must be copyrightable. Recipes are not copyrightable. But here, as it turns out, what was copied was not the actual cake. In fact, MacIsaac’s creation was not a “cake”at all – it was decorated styrofoam, with just one section of cake for ceremonial “slicing.” What is at issue, then, is the pattern or design of the cake’s decoration. Should it be analogized to a clothing design, which is not copyrightable, and hence, can generally lawfully be copied once seen in public? Or is the cake more like a traditional work of art, and protected (although no copyright registration was made in this case)?

The Copyright Act by its own terms covers “sculptural works” under 17 U.S.C. Sec. 102(a)(5). That a cake is to be eaten is not obviously disqualifying. Under the Copyright Act, a “useful article” may nevertheless also qualify as a protectable sculptural work “only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” The “utilitarian aspects” of a cake are presumably limited to its consumption. All the rest – the fondant Presidential Seal, colored stripes, stars on the ends of sticks stuck into the cake, and so on, seem clearly to qualify as “pictorial, graphic, or sculptural features.”

Section 102(a)(5) of the Copyright Act codified the holding of Mazer v. Stein, 347 U.S. 201, 214 (1954), which protected “china statuettes of dancing figures that appeared on the bases of table lamps.” A 2010 Fourth Circuit case, Universal Furniture International, Inc. v. Collezione Europa USA, Inc., provides further helpful guidance. In this case, one furniture company sued another, claiming its designs had been copied (and sold for less). The furniture in question “was highly ornate…adorned with three-dimensional shells, acanthus leaves, columns, finials, rosettes, and other carvings,” language that might as easily describe a fancy decorated cake. One furniture expert “described the collections as ‘an ornamentation explosion.’” Collezione Europa defended itself by, inter alia, arguing that furniture designs were not copyrightable. The Fourth Circuit disagreed, distinguishing the non-protectable utilitarian elements of the furniture, from the purely decorative.

This doctrine, now known as “conceptual separability.” “exists when the artistic aspects of an article can be conceptualized as existing independently of their utilitarian function….[when] the design elements can be identified as reflecting the designer’s artistic judgment exercised independently of functional influences. If the elements do reflect the independent, artistic judgment of the designer, conceptual separability exists. Conversely, when the design of a useful article is as much the result of utilitarian pressures as aesthetic choices, the useful and aesthetic elements are not conceptually separable.” Separating ornamentation from function, the Fourth Circuit found the designs protectable.

Duff Goldman’s cake, too, might be described as an “ornamentation explosion,” using cake decoration as a medium of artistic expression. His cake was “meant to pay special homage to the nation’s armed forces, with the seals of the five branches,” along with its other elaborate decorations. History’s first “celebrity chef,” Marie-Antoine Careme, might have had just such a cake in mind when he famously remarked, “The fine arts are five in number, namely: painting, sculpture, poetry, music, and architecture, the principal branch of the latter being pastry.” Further evidence of conceptual separability is provided when we remember that there was no edible or utilitarian part of MacIsaac’s replicake. It was simply a heavily decorated stack of styrofoam blocks.

Although a claim by Goldman could be negated if his original cake were a “work made for hire,” in the end, this theory is inapplicable. (I credit Cornell Law student Siobhan Mahaffey for the suggestion.) An independent contractor (like a baker) can certainly create such a work, and in that case, the person or entity that commissioned the work is the owner of the copyright. Moreover, if that entity is the White House, arguably, the person who commissioned the replicake was acting on behalf of the copyright owner (same White House, different occupant), and there was no infringement at all. However, a sine qua non of a work made for hire is a written agreement to that effect, and none is in evidence here.

In addition to a copyright infringement claim, might this also be a form of unfair competition? The essence of an unfair competition claim of this type is “passing off,” or misrepresentation as to source. With respect to the Trump White House, the person who ordered the cake of course knew it was not being obtained from the original baker – the instruction was to copy it. However, anyone who recognized the cake as identical to the prior one might easily assume it was made by the same person (other than Goldman, of course, who knew he didn’t make it!). The presentation of the cake at the event included no representation as it its source or creator at all. Ordinary passing off involves the misrepresentation of one’s own goods or services as someone else’s. The fashion world is plagued with it; the popular chain Forever 21 has been sued more than 50 times for its knock-offs of famous designer clothing. Other examples include counterfeit purses or soda or (more dangerously) prescription drugs.

This situation involves what is called “reverse passing off.” Here, the wrongdoer misrepresents someone else’s goods or services as her own. (In this way it resembles plagiarism in the academic context.) If MacIsaac or Buttercream were to state or imply that this was their own original cake design, that might qualify as reverse passing off. But MacIsaac did no such thing: she was entirely open (albeit, after the fact) about having been asked to “replicate” Goldman’s cake. Arguably, then, there is no “passing off” in a case of open copying.

A copyright having then arisen even in the absence of registration, Goldman might well have had a claim, although his public statements seem to have given MacIsaac an implied license after the fact. On January 21, 2017, he tweeted, “Remembering a fantastic cake I made is awesome and the chef that re-created for @POTUS Trump did a fantastic job. Group hug, y’all.”

Goldman’s magnanimity was matched only by MacIsaac’s generosity: she donated the proceeds from the cake to the Human Rights Campaign, a high-profile gay rights group. In conclusion, like so much else about the Trump campaign, inauguration, and nascent administration, the replicake is deceptive, phony, and indigestible – but probably not (strictly) unlawful.

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