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.
Filed Under: cake, copyright, parody, shame