The Cake Copyright Is A Lie; Safeway Just Doesn't Want To Be Mocked

from the time-to-take-your-business-elsewhere dept

Tue, Nov 13th 2012 8:30am — Mike Masnick

A few folks have sent in this story on the blog of the wonderful (and super popular) site Cake Wrecks, which (as the name suggests) highlights hilariously bad cake designs, supposedly done by "professionals." Not surprisingly, the site is well known among those who wield cake decorating bags. However, some do not appreciate the wonders of such a site... especially when it features their own cakes. Cake Wrecks recently put up a blog post in which it reveals that at least one Safeway (a part of the giant supermarket chain) has apparently told its bakery that there is a "no photography" rule, officially set up to avoid having its cakes show up on the site -- though, they're using copyright as their excuse:

"My local [CENSORED*] bakery has this new policy - not strictly enforced, but kinda enforced - NO PHOTOS in the bakery department. None, nada. Per an ex-employee there, upper management is afraid that one of that store's specific cakes will be posted on 'that bad cake site.' Per what they tell you in the store, their cakes are 'all copyright protected.'"

Furthermore, the person who sent the email was told to stop photographing the following cake, because of "copyright protection!"

You may notice that Safeway is clearly on the label -- but has been "censored" out of the note. Cake Wrecks amusingly refuses to name the chain in question, but does title its blog post "Ways to Play it Safe." It also features a whole bunch of photographs of ridiculously designed cakes from Safeway -- many with stickers prominently displaying where they came from. It's worth checking out the whole bunch, though I'll warn you that one of them might be considered not safe for work, depending on your work environment (though, it's also the type of cake that I imagine our own Dark Helmet would find hilarious).

Of course, there is a question of whether or not such cakes are actually covered by copyright. That actually probably depends on each individual cake -- since there has to be some sort of overall creative element added to the cake, and many "standard" cake designs probably don't qualify. Of course, even if the cake is covered by copyright, it seems silly to argue that copyright is a reasonable excuse to ban any and all photographs. There would be a ridiculously strong fair use claim in response. The photograph is transformative (it's not a cake, it's a photgraph). The nature of the work is to disseminate information to the public, which tends to weigh in favor of fair use. And the effect on the "market" for the copyrighted work is nil. Now, some may argue that it would impact the market for the cake, but that's because it's showing how ridiculous the cake is, not because it's a substitute. And, in the famous Campbell v. Acuff-Rose case, the Supreme Court made clear:

We do not, of course, suggest that a parody may not harm the market at all, but when a lethal parody, like a scathing theater review, kills demand for the original, it does not produce a harm cognizable under the Copyright Act.

I'd say Cake Wrecks fits into that description nicely. Either way, even if there was a legitimate copyright claim here, all it does is call that much more attention to the fact that apparently Safeway has pretty horrid quality control for many of its cake designers. Instead of coming up with ridiculous legal arguments to stop people from photographing their cakes, perhaps they should just find better cake designers.

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Filed Under: cake, copyright, parody, shame
Companies: safeway

64 Comments

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GMacGuffin (profile), 13 Nov 2012 @ 8:20am

Not to mention that the market life of a particular cake is only a few days, or until sold, whichever comes earlier.
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Zakida Paul (profile), 13 Nov 2012 @ 8:32am

Cake copyright - what a stupid idea. It's not like people can tell the recipe from a photo.
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- Rich, 13 Nov 2012 @ 9:27am
  
  Re:
  And recipes aren't copyrightable, anyways.
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  - Anonymous Coward, 13 Nov 2012 @ 10:09am
    
    Re: Re:
    Oh, I am pretty sure a good deal of cook-books and homepages would contest that claim.
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    - Chris Rhodes (profile), 13 Nov 2012 @ 10:17am
      
      Re: Re: Re:
      Cookbooks can be copyrighted; recipes cannot.
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      - Anonymous Coward, 13 Nov 2012 @ 10:40am
        
        Re: Re: Re: Re:
        Which leads to the quantitative argument: What is needed to constitute a breach of copyright? Not a single recipe, but how many recipes, what specifics (photos?, Not normally used ingredients?, unusual techniques/equipment?), has to be in the recipes for it to be a breach of the cookbooks copyright?
        [ link to this | view in chronology ]
        
        John Fenderson (profile), 13 Nov 2012 @ 2:34pm
        
        Re: Re: Re: Re: Re:
        The specific wording of the recipes (the expression) can be copyrighted. The recipe itself (the ingredients and steps required to make the dish) cannot.
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      - Anonymous Coward, 13 Nov 2012 @ 11:56am
        
        Re: Re: Re: Re:
        The blanket statement "recipes cannot be copyright protected" is not accurate (though it is often repeated by people and entities that ought to know better).
        
        You can write a recipe in the form of a sonnet, for example, that would absolutely be protected by copyright.
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        Adam V, 13 Nov 2012 @ 1:40pm
        
        Re: Re: Re: Re: Re:
        But then only the sonnet is copyrighted - I could listen to you singing the sonnet (having acquired a license to sing it, of course) and write down the lyrics (the ingredients and directions), thus recreating the recipe, and send that out to a million friends.
        
        Oh wait, no I can't...
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        Anonymous Coward, 13 Nov 2012 @ 2:49pm
        
        Re: Re: Re: Re: Re: Re:
        I don't understand that you're getting at. Sonnets are not (necessarily) musical forms.
        
        My point is that you may be able to obtain copyright protection for the original, creative expression embodied in a recipe, although you cannot obtain copyright protection for the ingredients or the method of cooking.
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        TimothyAWiseman, 13 Nov 2012 @ 3:18pm
        
        Re: Re: Re: Re: Re:
        It depends on how you define recipe. The simple statement "recipes cannot be copryight protected" is true as long as you are defining recipe as the ingredients, quantities, and active steps required to make the item in the abstract or expressed in a way utterly devoid of creativity.
        
        The exact way of expressing the recipe might be copyrighted. For an example, if you write a recipe filled with detailed descriptions of the steps include a carefully-staged photo of the results and conclude with a memory that dish brings up, your expression is copyrightable. I can't just go and republish the whole thing.
        
        I can however, read your recipe and then follow your steps to make my supper. I could then take my own photos and write up my own description and comments and publish that without fear of copyright violation. I can do this even though I started with your recipe and even though I am describing how to make the same dish. I can do this even if you were the first person in history to use that recipe and I never could have come up with that dish without your recipe.
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        Anonymous Coward, 14 Nov 2012 @ 9:47am
        
        Re: Re: Re: Re: Re: Re:
        Sure. I generally take "recipe" to include both the unprotected steps and the way they are expressed in writing, but your point is valid.
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Anonymous Coward, 13 Nov 2012 @ 8:46am

I guess Safeway want their cake and eat it.
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- Forest_GS (profile), 13 Nov 2012 @ 8:54am
  
  Re:
  I've always thought that saying could be better;
  
  "They want to sell their cake and eat it too."
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  - Anonymous Coward, 13 Nov 2012 @ 9:17am
    
    Re: Re:
    I'm going to start using that.
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weneedhelp (profile), 13 Nov 2012 @ 8:53am

So bad
Safeway takes the cake.
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- The eejit (profile), 13 Nov 2012 @ 11:25am
  
  Re: So bad
  No, it took the cake out bad, did the nasty and now won't take the cake's calls. Oh, and the cake? Is now pregnant.
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Anonymous Coward, 13 Nov 2012 @ 9:06am

So their cake is covered by copyright?

I wonder what is their stance on derivative works. More specifically, derivative works that happen a few hours after the consumption of the cake.
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Lord Binky, 13 Nov 2012 @ 9:13am

If..
bad cake reviews affect the market for a product and
good cake reviews affect the market for a product..

Then smartest business thing to do is make bad cake reviews illegal!

I'm a genius.
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John Fenderson (profile), 13 Nov 2012 @ 9:14am

Work for hire?
When I go to a bakery and tell them what I want, I am specifying the design myself. The "creative element" portion of the work is, in the majority anyway, coming from me, not the cake decorator.

Is this not a classic work-for-hire, and therefore shouldn't the copyright be mine, not the bakery's?
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- Anonymous Coward, 13 Nov 2012 @ 9:45am
  
  Re: Work for hire?
  That part doesn't matter so much, since they aren't stopping people from photographing their own cake after they bought it. Presumably they think that you're violating somebody ELSE'S copyright if it's a work for hire and you take a picture of somebody else's cake in the store. But probably they didn't even think that far ahead.
  
  Of course, that part also doesn't matter, because it IS fair use. "No, we don't need to buy that cake, we've already downloaded a picture of it on the Internet" are words that will never be uttered.
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- Anonymous Coward, 13 Nov 2012 @ 9:49am
  
  Re: Work for hire?
  Is this not a classic work-for-hire ...?
  
  17 U.S.C. � 101
  
  A �work made for hire� is� �.�.�.
  
  And see Community For Creative Non-Violence v Reid (1989).
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  - John Fenderson (profile), 13 Nov 2012 @ 10:13am
    
    Re: Re: Work for hire?
    Thanks for this. Unfortunately, however, the second paragraph of the definition in 17 U.S.C. � 101 is unintelligible. The CCNV v Reid case doesn't appear applicable, as the cake decorator is not the employee of the customer, but the employee of the bakery. It's a question of the bakery vs the customer.
    
    I'd be very interested in a human-language explanation from someone who knows this corner of the law.
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    - Anonymous Coward, 13 Nov 2012 @ 10:30am
      
      Re: Re: Re: Work for hire?
      CCNV v Reid case doesn't appear applicable, as the cake decorator is not the employee of the customer
      
      CCNV v Reid is the leading case on this issue.
      
      �
      
      It's a question of the bakery vs the customer.
      
      Is there a writing?
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    - Anonymous Coward, 13 Nov 2012 @ 11:20am
      
      Re: Re: Re: Work for hire?
      I'd be very interested in a human-language explanation...
      
      Here's a fact-pattern for you: � You author drawings for a cake design, and register them with the copyright office. Then you take the drawings to Safeway, and ask them to bake a cake for you according to your drawings. You pay Safeway by check. On the back of the check, it there's a legend:
      
      By endorsing this check, the payee agrees that the goods purchased are �works made for hire�.
      
      The Safeway cashier accepts your check (and it is later deposited) and the baker bakes the cake.
      
      Who owns the copyright on the cake?
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      - Anonymous Coward, 13 Nov 2012 @ 12:03pm
        
        Re: Re: Re: Re: Work for hire?
        Probably the purchaser. It sounds like the purchaser provides all the creative input, and the baker is merely acting as his hands. Thus, the purchaser may in fact be the "author" of the cake aside from any work made for hire law.
        
        Otherwise, it is possible that the purchaser and baker are co-authors of a joint work (if the baker contributed his own creative contributions).
        
        It is probably not a work made for hire (since it doesn't fit any statutory work made for hire category). Wait...are illustrations a WMFH cateogry? Not sure.
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        Anonymous Coward, 13 Nov 2012 @ 12:06pm
        
        Re: Re: Re: Re: Re: Work for hire?
        It is probably not a work made for hire (since it doesn't fit any statutory work made for hire category).
        
        Well, suppose a professor brings the cake into class, explains the baking of the cake, and then announces:
        
        This is a QUIZ.
        
        �
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        Anonymous Coward, 13 Nov 2012 @ 12:43pm
        
        Re: Re: Re: Re: Re: Re: Work for hire?
        In my view, "specially commissioned" for use as a particular type of work means that has to be the primary purpose for commissioning the work. Or maybe at least as important as any other purpose.
        
        I don't think the cake is a test or answer material for a test, anyway.
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    - Anonymous Coward, 13 Nov 2012 @ 12:00pm
      
      Re: Re: Re: Work for hire?
      In a non-employee situation, two things need to happen:
      
      1. The work must be specially commissioned for use as one of 9 identified types of works;
      
      AND
      
      2. There needs to be a written document signed by the parties stating that it's a work made for hire.
      
      Otherwise, it's not a work made for hire.
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      - John Fenderson (profile), 13 Nov 2012 @ 2:24pm
        
        Re: Re: Re: Re: Work for hire?
        Excellent, thank you!
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        Anonymous Coward, 13 Nov 2012 @ 2:52pm
        
        Re: Re: Re: Re: Re: Work for hire?
        You're welcome.
        
        I should clarify that the person paying for the work could still own the copyright via a written assignment, or could have an implied license.
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- Anonymous Coward, 13 Nov 2012 @ 11:58am
  
  Re: Work for hire?
  No, it's not a classic work made for hire (you need a written work made for hire agreement signed by the parties).
  
  However, if you are truly specifying all the creative elements, you may in fact own the copyright as the author.
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GreenPirate (profile), 13 Nov 2012 @ 9:18am

These cake photographers are the criminals responsible for creating the financial cliff. They should be hunted down and executed on site. The cake design industry can't be sustained as long as these thugs steal images of cakes and publish them without permission. If we lose cake in this country then Americans will need to eat up to three times as many cookies in order to maintain the current rate of obesity.
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- :Lobo Santo (profile), 13 Nov 2012 @ 9:22am
  
  Re: Obesity
  Indeed! Obesity is such an ingrained part of the American lifestyle they have a horror figure called "Slender Man".
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Anonymous Coward, 13 Nov 2012 @ 9:21am

Yeah, there's probably copyright protection for most of the cakes, but use of a photo for Cake Wrecks purposes is classic criticism, and about as strong a fair use claim as you can get.

Funny that this fair use call is a little more than the typical "clearly fair use" calls, and yet is actually a stronger claim than most of those calls.
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jupiterkansas (profile), 13 Nov 2012 @ 9:28am

If only I could download a cake...
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- Foxarris, 15 Nov 2012 @ 6:15am
  
  Re:
  You wouldn't download a car.
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Anonymous Coward, 13 Nov 2012 @ 9:30am

Isn't that picture of a pie?
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- Anonymous Coward, 13 Nov 2012 @ 9:34am
  
  Re: Isn't that picture of a pie?
  No .... that'd be the site pyrex.com
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- RadialSkid (profile), 13 Nov 2012 @ 9:52am
  
  Re:
  The pie is a lie?
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- Greg, 15 Nov 2012 @ 4:32pm
  
  Re:
  Yes. Lemon cream, according to the label.
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Anonymous Coward, 13 Nov 2012 @ 9:31am

and perhaps having lessons in what is, is not, can be and cannot be classed as or restricted because of copyright might help a great deal. that, however, would mean that those that should be ensuring that nothing of 'fair use' was being withheld under the excuse of copyright were doing their job! bit of a no-no there, i fear!!
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fogbugzd (profile), 13 Nov 2012 @ 9:32am

A lot of grocery store cakes themselves probably violate copyright and trademarks. I am sure they pay for some of the prepared pieces they put on cakes, but they often hand-draw Disney and cartoon characters. Safeway might want to be very careful about how many IP lawyers they get poking around their cake business.
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cosmicrat, 13 Nov 2012 @ 9:33am

Terrible, just terrible
Why do you hate cake designers so much? They deserve a right to make a living. Don't you know cake pumps 158 billion dollars a year into the economy? It depends on strong IP to even exist. We better shut down the Internet and suspend the first ammendment to protect this vital aspect of national security.
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Nina Paley (profile), 13 Nov 2012 @ 10:04am

Bravo on the title
I know titling the articles can sometimes be a challenge. This one should get an award.
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Jeremy, 13 Nov 2012 @ 10:20am

I really really hope streisand effect hits this one...
I want to see that store exposed for their stupidity.
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btr1701 (profile), 13 Nov 2012 @ 10:23am

Law
Don't know why they bothered with copyright law as the rationale for their 'no pictures' policy. All they have to do is ban photos and say, "It's our store, our private property, and that's our policy."

No worrying about Fair Use or balancing tests or critical commentary or parody or any of it. "It's our property, these are our rules" trumps all of that.
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- Anonymous Coward, 13 Nov 2012 @ 12:44pm
  
  Re: Law
  I think they wanted some sort of reason other than "we don't want people to see how bad our cakes are."
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- John Fenderson (profile), 13 Nov 2012 @ 2:40pm
  
  Re: Law
  Yes, this. I would have a lot more respect for their decision if they'd just done that.
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- Jonathan, 15 Nov 2012 @ 7:35am
  
  Re: Law
  True, there is no relation to copyright, and that is well within their rights. On the other hand, maybe they're trying to spread it as FUD to prevent people from buying the cakes and taking a picture of it outside of the store?
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DannyB (profile), 13 Nov 2012 @ 10:26am

How to steal your cake and eat it too
Photographing the cake is (purportedly) copyright infringement.
Copyright infringement is theft.
You have therefore stolen the cake.

But wouldn't such photography be fair use because it for the purposes of criticism on the bad cake site?
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- G Thompson (profile), 13 Nov 2012 @ 8:30pm
  
  Re: How to steal your cake and eat it too
  There is no cake!
  
  The Aperture Science lawyers will be contacting you shortly for your damaging comments about cakes!
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Anonymous Coward, 13 Nov 2012 @ 10:33am

I think that they for obvious reasons confuse copyright with a property right. A property right gives them very clear possibilities for kicking out costumers acting in an unwanted way, like photographing cakes. A copyright seen as a property right would include the right to the derivative (photo) no matter where it is taken.

I appeal to correction of the red herring category fallacy, ad misericordiam used to justify the calling of copyright a property right.
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Anonymous Coward, 13 Nov 2012 @ 10:41am

Hmmm...
Next time they should claim a TM violation for the Safeway branding in the pic. And idiot in a hurry might think that Safeway endorses their own cakes.
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Milton Freewater, 13 Nov 2012 @ 10:43am

Photography in retail spaces
By law, a retail space manager CAN institute a "no photography" policy and eject or "ban" anyone who breaks it. Many shopping malls do this - they don't enforce it against birthday parties and the like, but if you walk around by yourself with a telephoto lens, you may get approached.

So Safeway was wrong about the law, but right that a law exists.

You can buy the cake and photograph it without any repercussions.
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- DannyB (profile), 13 Nov 2012 @ 11:25am
  
  Re: Photography in retail spaces
  One of these years, potentially millions of people might have glasses with Google Glass or similar technology.
  
  When everyone's glasses are a camera, and connected to the cloud, then how will bakeries be protected from people stealing their cakes via copyright infringing photography?
  
  Beyond the issue of cake, there are much larger issues when we someday get widespread use of google glass(es). Next thing you know, people's eyewear will be photographing the police without using their hands.
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mong, 13 Nov 2012 @ 10:59am

So they admit their cakes are bad?
"Yes we know our cakes look like cack but instead of bothering to take the simple steps to improve them we'll just start enforcing pointless rules."

Sounds reasonable.
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That Anonymous Coward (profile), 13 Nov 2012 @ 2:23pm

Mike, Mike, Mike.... (tsk, tsk, tsk)
I am sorry but I can not award you the promised bonus points for covering this.
The bonus points were promised only if you used the ball gag rabbit cake picture...

So sad...
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Anonymous Coward, 13 Nov 2012 @ 3:14pm

Let them eat [CENSORED*]!
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Jeffrey Nonken (profile), 13 Nov 2012 @ 3:33pm

" Instead of coming up with ridiculous legal arguments to stop people from photographing their cakes, perhaps they should just find better cake designers."

Cake designers are paid hourly minimum wage; dumbf**k lawyers are on retainer. Hiring better cake designers would cost money. Threatening customers with frivolous lawsuits doesn't cost anything except customer goodwill, and since you can't measure that in dollars and chart it in Excel, it's not important.

Tsk. Really, Mike. Get your priorities straight.
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ShellMG, 13 Nov 2012 @ 4:01pm

Cake Wrecks has been the provider of much physical pain, inflicted from laughing to the point of not being able to breathe.

Oh, you may want to keep Dark Helmet away from the "Darth Vader Baby Shower" cake pictures.

No, Really. ;)
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Anonymous Coward, 13 Nov 2012 @ 5:10pm

Recipe for Copycake
2 cups of lightly bleached IP Laws.
( If you can't find bleached out ones you can substitute Outdated ones)
1 cup half baked store manager,slightly retarded.
2 cup crushed copyright nuts.
Dash of bitters.
2 cups RIAA juice.
3 IP trolls, Blended.
1 dozen Out of touch corporations with far right attitudes separated from the center.

Blend all the ingredients in to a large forum.
Turn up the heat until half baked.
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cake designer of 25 yrs., 30 May 2013 @ 1:23pm

safeway
I've been with this company for several yrs and we did design cakes but now we No longer do them because of the copyright, not because we are horriable cake designers but company's can be sued for not having permission to redraw the pic's if that's more explainatory for you! So now can you understand! Stop bashing Safeway Cake Designers!
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Anonymous Coward, 8 Jan 2015 @ 12:54pm

Low fat items at Safeway http://www.unmuteme.com/safeway
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