Who is the boss of your cake?

13 Aug 2019

Fans of reality TV shows will be familiar with shows like Cake Boss, which pit the worlds best confectioners against each other to produce the most extravagantly and intricately designed and decorated cakes. Professional and amateur bakers alike can’t help but be inspired by the magnificent creations featured on these shows.

The question that springs to mind, however, is how far this inspiration can be taken and whether someone who makes wedding cakes and cakes for other occasions, can (or can at least try to) reproduce a cake they have seen on one of these reality TV shows, without getting into trouble.

Believe it or not, the answer is probably no, as these creations may be the subject of copyright protection. Copyright law provides protection for the material expressions of creative ideas, and there is no reason why a beautifully designed and decorated cake would not qualify for protection as an artistic work.

It is also not necessary (in most countries) to register copyright in order to acquire an enforceable right, as copyright generally automatically exists in copyright works, provided that the very basic requirements for subsistence are met. In South Africa the conditions for subsistence of copyright are simply that the work in question must be original, it must exist in material form and the author must be a qualified person (i.e. a South African national or a national of a country that is a member of the Berne Convention for the Protection of Literary and Artistic Works).

Bear in mind that “original” doesn’t mean that the creation must be novel or inventive in any way, it merely means that it must have been created as a result of the author’s own efforts and not have been copied from another source.

So, if you can’t copy the whole cake, can you take inspiration from it, or reproduce elements of it? The answer to this question is not so simple. When it comes to copyright infringement, the assessment is a qualitative rather than a quantitative one. This means that even if someone does not copy a work in its entirety, but copies a small but essential feature of the work, that can be sufficient to successfully prove infringement.

Therefore, although you may argue that imitation is the greatest form of flattery, you should be cautious in taking inspiration from the creations of others, even when it comes to cooking, and instead always be the boss of your own cake.

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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Vicky Stilwell

Vicky Stilwell is a director and trade mark attorney at KISCH IP. Vicky has more than 13 years’ experience in the field of intellectual property, specialising in all areas of... Read more about Vicky Stilwell


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