Shows such as "Cake Boss", which see the world's best confectioners go against each other to produce extravagant and intricately designed cakes, often inspire professional and amateur bakers.
However, this begs the question of whether bakers can reproduce (or at least try to reproduce) the cakes that they have seen on these TV shows without getting into trouble.
Perhaps surprisingly, the answer is probably no, as these creations may be subject to copyright protection. South African copyright law protects material expressions of creative ideas. Arguably, intricately designed cakes could qualify for protection as artistic works.
In South Africa, it is also unnecessary (as in most countries) to register copyright in order to acquire an enforceable right, as copyright generally automatically exists in copyright works, provided that the basic requirements for subsistence are met, including that:
- the work in question be original and exist in material form; and
- the author is qualified person (ie, 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).
It is important to consider that 'original' does not 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 the whole cake cannot be copied, can bakers take inspiration from it or reproduce certain elements thereof? The answer to this question is not so simple. Copyright infringement must be assessed on a qualitative rather than a quantitative basis. This means that even if a work has not been copied in its entirety, copying a small but essential feature of the work can be sufficient to prove infringement.
Therefore, it is important to be cautious when taking inspiration from the creations of others, even when it comes to cooking.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.