Food Theory: Is Your Cake ILLEGAL?

so here's a fun fact for you the word yup is trademarked yep the yup is a trademarked word by one of the guys from the show storage wars in fact he battled against a rapper in court to get the trademark for that word crazy right another fun fact 20 of your genes are patented even the guy who discovered dna thought that this was a bad idea but companies went ahead and did it anyway so okay you can trademark a word and you can patent your genes but can you copyright a cake that my friends is the question that we'll be snacking on today hello internet welcome to food theory the show where everything is actually made of cake except for the arguments those are rock solid now you probably didn't wake up this morning with the intention of watching a video about cake law i get it heck i didn't think i'd ever have to be making an episode about cake law but sometimes the universe comes in like a wrecking ball and plops an incredible food theory onto your lap leaving you with little choice but to run with it such was the case with today's episode see back in june of 2019 miley cyrus posted a picture of a cake on her instagram to announce an upcoming collaboration between planned parenthood fashion designer marc jacobs and her own organization the happy hippie foundation the cake itself was circular white and pink with sprinkles and had the words abortion is healthcare on top so it was certainly an eye-catching pose to say the least but also just your standard fair instagram post or so it would seem because just days later another user at the sweet feminist made this accusation quote miley cyrus just announced a collaboration with marc jacobs planned parenthood happy hippie foundation using this image it is a direct theft of my own original artwork from may 2018 with no credit it's literally my exact handwriting message and concept swipe for comparison cake art is for everyone but this is inexcusable now the sweet feminist is the handle behind the washington dc-based influencer becca ray holloway she describes herself as quote a self-taught baker with a passion for mixing sugar and strong opinions one look at ray holloway's account will give you a pretty good idea of the kind of work that she does often she bakes a cake or a pie writes a punchy opinion on said caker pie and then eloquently elaborates the stands in the caption attached and then she proceeds to get a lot of likes on instagram and sure enough a month before miley's post rae holloway posted a photo of a cake that looks pretty much identical to cyrus's abortionist healthcare design same white and pink frosting same sprinkles same message written on top with similar handwriting and an underlined is and when cyrus caught wind of rey holloway's accusation she seemed to agree she apologized publicly to ray holloway and edited the post to include credit for the original artist what she didn't do was provide any kind of compensation for ray holloway the apology and the credit were no longer enough she said quote again this was not an oversight it was blatantly and willfully neglectful and deceitful i would have been more than happy to work with you on a collaboration for this project but instead my work was just copied without compensation the comments on the sweet feminist's post were filled with people encouraging ray holloway to seek legal counsel and sue miley and her team for breach of copyright and the story became regional national and even international news but after those big headlines hit the story just kind of faded away nothing really seemed to come out of it or at the very least no one followed up on the story it's unclear whether rey holloway actually pursued the issue any further after the whole copyright fiasco hit the fan so you know what i'm interested to know did the sweet feminist's instagram followers have a point here does rey holloway have grounds to sue over copyright infringement of a cake and if a person can indeed copyright a cake what are the implications for other types of foods hope you came hungry for knowledge food theorists because it's a theory in the usa first things first what exactly is copyright anyway by definition a copyright is the exclusive legal right given to the originator of a work to print publish perform film or record literary artistic or musical material and to authorize others to do the same basically it's a safeguard against copycats a way to ensure that your work stays your work and that you're the only one who gets to let other people use that work though you can file a copyright with the u.s copyright office you actually don't have to it's an automatic write that goes to you as soon as you create a copyrightable work now youtube copyright strikes are one example that you've probably heard a lot about but copyright is all around us it covers books movies tv shows music computer software architecture and beyond so copyright covers a lot of creative arenas and that means that there's no shortage of legal gray areas to theorize about over on game theory we've talked about whether fortnite was stealing and profiting off of copyrighted dances they aren't and on film theory we talked about whether memes were legal under copyright law they should be via fair use so really talking about the nuances of copyright law is just a rite of passage for any theory channel and today it's food theory's turn welcome to the fold buddy incidentally another theory channel right of passage is promoting the game theory million dollar challenge to support st jude children's research hospital that huge event probably the biggest event that these channels have ever covered is happening live tuesday december 1st theorists this is a huge project that we've been putting our hearts and souls into all throughout this year not only does it feature tons of youtube creators that you know and love totaling 300 million subscribers all together but there's also plenty for all you food lovers to enjoy for instance cake decorating challenges were saddled with some pretty unique sabotages so be sure that you're tuning in to our sister channel game theory on tuesday i'm serious this show is gonna be massive and it's all to benefit an amazing cause so i hope you're able to make it anyway back to the matter at hand how might copyright law apply to cakes and other foods well there are three basic requirements that a work needs to meet in order to be protected by copyright the work must be one original it has to be independently created it can't be copied from something else two creative a work needs to demonstrate at least a small amount of creativity and finally three it needs to be fixed a work must be fixed in a tangible medium of expression and this includes digital works even if you can't technically touch them if it can be copied or transmitted it's tangible as far as copyright laws concerned so based on these rules something like say a recipe can't actually be copyrighted yeah i was really surprised by this one too according to the courts copyright protection doesn't apply to any sort of procedure or listing of facts which is how they classify recipes legally recipes aren't creative you want to make this product here is the step-by-step procedure on how you make that product and are thus not copyrightable works just like you can't copyright a set of ikea instructions on how to build a milf yup something that you can buy at an ikea however if said recipe were written in a more creative way like say it was written as part of a longer story or it was in a shorter poem or it was illustrated or heck even if you're talking about a collection of recipes like in a cookbook which has creative direction over the order of recipes explanation instructions page layouts things like that then that would be copyrighted just not the individual recipes themselves besides recipes are tough no matter what because they're essentially a set of instructions for making something they are an invitation to copy a product so then what about cake the design on a cake is creative it's decorative it's artistic unlike recipes it's not just a listing of ingredients furthermore section 101 of title 17 united states code explicitly extends copyright protections to quote pictorial graphic or sculptural work which could extend to cake designs i mean let's face it i've watched a lot of cake boss and ace of cakes and food network challenge and great british bake off and nailed it and okay i've watched a lot of cake shows and the stuff that they're creating is beautiful or at least is supposed to be beautiful and feature a lot of intricate design and detail like a sculpture look at this and tell me that this isn't a work of art or a work of creative expression or this or this there are tons of people out there who are taking traditional cake design and giving it an original creative twist take this amazing hedgehog cake for example there's a strong argument to be made that this cake would be protected by copyright as it hits all three of our major check boxes cake is a tangible medium of expression this piece is undeniably creative and in terms of originality well it's certainly not as though a hedgehog cake gets busted out at every birthday party ever been to and when someone else decides to make their own hedgehog cake it's not like they're gonna independently arrive at a similar design with the same color palette or detailing it could very well turn out looking like this there are countless creative decisions that went into this cake design heck it might even be argued that this hedgehog is an original character deserving copyright protections the same way sonic is any tangible thing that has original elements of expression can be protected by copyright and that includes cakes so it's safe to say that cakes can indeed be copyrighted for the exact same reasons that inedible sculptures can be copyrighted but it doesn't mean that every cake can be copyrighted the three checkboxes have to be applied on a case by case for cake by cake basis so then what about this sweet feminist cake it obviously checks the box for creativity and it's absolutely fixed in a tangible medium both as a 3d cake and as a 2d picture but the weak link in the argument seems to be the originality checkbox it's just a simple cake design and that could be its downfall where copyright protections concern of course ray holloway didn't straight up rip off this cake from somebody else the way miley cyrus did to her but every aspect of the cake's design has been seen on plenty of other cakes a circular shape is not unique white frosting very common pink writing multi-colored sprinkles a handwritten message on top we have seen all of those things time and time again though i'll admit those elements can sometimes come together to make a very very strong point so compelling in fact that one might want to act on it right now by clicking the red subscribe button beneath this video and also hitting the notification bell while they're there point is if she chose to sue rey holloway would have a difficult time making her argument stick in a court of law as would food theory if our cake design ever got copied obviously it's not the colors or the shape or the lettering that makes this cake stand out though it's the message and that underlining of the word is if a novel can be copyrighted can a short expression like this be copyrighted for the same reasons after all rey holloway pendant it makes her cake more than just food it makes it a statement well the argument probably isn't going to go in her favor there either according to the us copyright office quote words and short phrases such as names titles and slogans are uncopyrightable because they contain an insufficient amount of authorship the office will not register individual words or brief combinations of words even if the word or short phrase is novel distinctive or lends itself to a play on words as a result the phrase is not eligible for copyright protection see i underlined the word not there it added emphasis but it also didn't add anything copyrightable however not all hope is lost just because a given piece of intellectual property isn't protected by copyright doesn't necessarily mean it's not protected allow me to pull up a chair flip it around backwards and sit on it cool teacher style because it's time we rap about the difference between copyright patent and trademark now all three protect intellectual property but they all protect different types of intellectual property to simplify it down perhaps too far copyrights are for works of art patents are for new inventions and trademarks are for branding now rey holloway's cake most certainly isn't a candidate for patent she didn't invent the cake nor she claiming anything of the sort but a trademark on the other hand well he could be the one trademarks are often used by businesses seeking to protect their brand their name slogan logo even colors can be trademarked like tiffany blue t-mobile magenta ups brown so it's pertinent to our cake discussion because trademarks are a way to protect short phrases wendy's trademark their famous slogan of where's the beef nba coach pat riley trademarked the phrase threepeat but an important distinction to make here is that just because these phrases are trademarked doesn't mean that people can't say them just watch me do it three pete three p three p three pete see nothing happened to me however if i were to put that phrase onto a shirt and sell it well then i might need to have a conversation with old pat riley over there see the trademarked item must be used in a commercial setting to obtain protection from the law and this right here makes it pretty tough to argue that miley cyrus infringed upon anyone's trademark because it's not like miley cyrus was selling the cake she's not a baker in this instance she's a celebrity activist using the cake to promote a political message where trademark law is concerned it's hardly different than if miley cyrus had made a sign and held it up at a political rally as many others have done and will continue to do and on top of all of it it would be next to impossible for ray holloway to prove that the phrase was her original work a quick google search reveals that the phrase is present across the internet on t-shirts stickers blogs even introduced legislation and what's more the phrase was in circulation years before ray holloway's cake hit the scene which means as a whole there's really nothing copyrightable or trademarkable about this cake so while ray holloway was right to expect credit for inspiring the cake because let's face it it's hard to deny that miley or her team were inspired by the creative design of that cake ray holloway would be on shaky ground if she were to follow through and try to sue for copyright or trademark infringement that my friends is why you don't get legal advice from the comments section the worst irony of all of this is that it seems like ray holloway and miley cyrus see eye to eye when it comes to the political message behind the cake and if cyrus had simply reached out to the sweet feminist for a collaboration to begin with that would have truly been the best of both worlds but hey that's just a theory a food theory thanks for watching theorists sorry for all the miley puns but what can i say we can't stop so well that does it for this episode of food theory we have plenty of other food law episodes for you to chow down on including one of my personal favorites where we answer the age-old question is a hot dog a sandwich i get it you probably have your own opinion on the subject i do too but there are higher authorities that we must turn to including the national hot dog council which is actually a real thing that you're going to want to watch by clicking the link you see on screen subscribe hit that bell theorist we've got new episodes rolling out on the reg and you're not going to want to miss [Music] them you

Channel: The Food Theorists

Views: 2,016,515

Rating: 4.9297805 out of 5

Keywords: cake, cake recipe, cake decorating, cake design, cake decorating videos, how to cake it, dessert, cakes, miley cyrus, miley cyrus cake, cake lawsuit, lawsuit, copyright, can you copyright a cake, cake taste test, pops, cake decorating ideas, satisfying cake decorating, amazing cake decorating, how to cake decorating, chocolate cake, chocolate cake recipe, rosanna pansino, rosanna pansino cake, cake compilation, food theorists, food theory, matpat, game theory, film theory

Id: TcKTSev1_Do

Length: 14min 34sec (874 seconds)

Published: Sat Nov 28 2020