Duff Goldman of Charm City Cakes, one of our hometown heroes in Baltimore, a.k.a. the Ace of Cakes, created a striking cake for President Obama’s 2012 inauguration. The cake design caught the eye of the incoming presidential administration that ordered a different pastry chef, Buttercream Bake Shop, to create a replica of the Ace’s creation. “The cake on the left is the one I made for President Obama’s inauguration 4 years ago.
The one on the right is Trumps. I didn’t make it,” he captioned a side-by-side split of the two towering cakes. Both cakes boast nine stacked tiers with a distinct red-and-white striped base, a presidential seal on the next layer up, and a light blue layer atop that boasting several silver medals. Additionally, both cakes are topped with silver stars and sparkles.
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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. 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. In other words, it can’t be about the recipe.
A baker who uses another’s work as inspiration is not necessarily violating copyright, but the line between inspiration and imitation can be fine. The critical question 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 original. 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.
It’s unlikely the Trump Cakegate will turn litigious, at least because 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 also 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 permission.
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