The owner of a local bakery specializes in wedding cakes. The owner just completed a college course in Marketing. The owner wants to use what he learned to promote his business. The owner wants to develop a public image for advertising purposes. The owner also has a great idea, one that will link his business with the local community in the eyes of his customers. The new city hall building is very distinctive looking and attractive. It has won several design awards. With some imagination, the owner see’s that it also happens to look a lot like a wedding cake. The owner’s idea is to photograph the building and, using a computer, morph the image with a wedding cake of your design. The result will be simultaneously recognizable as the city hall building and your cake, linking his business with the city. The owner meets with a local printer to discuss having a set of promotional brochures printed that use his idea. He likes the idea. He says that his shop can do the whole job. The owner signs a deal in which the printer will do the layout, image manipulation, and printing. The photography will be done by one of his subcontractors. Five thousand dollars will get a pre-press version of the brochure for the owner’s final approval. The owner writes the check. It is a go. When the proof comes back, it looks fantastic. The printed brochure looks better than the owner had anticipated. The owner is about to okay a print job that costs over $30,000 to complete.     Could there be a copyright infringement? If there is, who is to blame?  

Expert Answers

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A true answer to this question would need a copyright lawyer, but the cakemaker’s proposal should not be a violation of copyright law.  There are two ways to think about this:

First, there is the issue of whether anyone can be prevented from selling photographs or other depictions of a building.  It is possible to copyright a building.  However, it is not generally possible to prevent a photographer from taking a picture of that building and selling the pictures.  It is generally the case that any building that can be seen and photographed from a public place may be photographed and those photographs may be used commercially.  It stands to reason that morphing the photo into a cake would also be acceptable.

Second, it could be possible to argue that the cake constitutes fair use of the building.  In this description, you imply that the cake is not simply a facsimile of the building but rather a work that combines the building and the elements of a cake.  This could well be an example of creating “new aesthetics” or “new insights” through your use of the building’s architecture.  This would mean that the cake is an example of fair use.

Looked at in these ways, it is unlikely that the making and publicizing of the cake would result in a copyright violation.

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