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

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

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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Companies: safeway

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

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Anonymous Coward says:

Re: Re: Re:2 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?

Anonymous Coward says:

Re: Re: Re:4 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.

TimothyAWiseman (profile) says:

Re: Re: Re:3 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.

Anonymous Coward says:

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.

John Fenderson (profile) says:

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.

Anonymous Coward says:

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?

Anonymous Coward says:

Re: Re: Re:2 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.

Anonymous Coward says:

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;


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.

GreenPirate (profile) says:

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.

Anonymous Coward says:

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.

btr1701 (profile) says:


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.

Anonymous Coward says:

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.

Milton Freewater says:

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.

DannyB (profile) says:

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.

Jeffrey Nonken (profile) says:

” 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.

Anonymous Coward says:

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.

cake designer of 25 yrs. says:


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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