Did President Donald Trump goof when he copied Barack Obama’s inauguration cake for his inauguration? Pastry Chef Duff Goldman made a stunning, nine-tiered cake for Obama’s second inauguration in 2013 complete with stars, stripes, five U.S. Military seals (the army, navy, marines, air force, and coast guard), and of course, the presidential seal. For his inauguration, President Trump commissioned another pastry chef, Tiffany MacIsaac, to create an exact copy of this cake without permission from the previous baker.
Is this re-creation of a “one-of-a-kind” cake a copyright violation? The answer is likely not, although explaining why is no piece of cake. To begin with, there is no evidence that Goldman actually registered a copyright for this cake design, which is a precondition to filing a copyright infringement suit. Second, the seals on the cake are not copyrightable because works of the United States Government cannot be copyrighted. Third, the cake, itself, would not be copyrightable because it would be considered a “useful article” that is functional as food to be eaten, and copyright law normally does not protect works that are functional.
Last, it is questionable whether the individual stars, stripes, and other general shapes meet the creativity requirements for a copyright, although some courts have found an original arrangement of such basic geometric shapes in an artistic design to be copyrightable. See e.g., Glasscraft Door I, L.P. v. Seybro Door & Weathership Co., No. CIV.A. H-08-2667, 2009 WL 3460372, at *3 (S.D. Tex. Oct. 22, 2009).
You Also Can’t Have This Cake and Sell It Too
Now, before you go and order your own Obama cake like Trump, know that it’s likely not going happen. A bakery selling you a cake with the presidential seal on it is a violation of federal law, 18 U.S.C. § 713(b). Section 713(b) of Title 18 of the United States Code states that whoever “knowingly manufactures, reproduces, sells, or purchases for resale, either separately or appended to any article manufactured or sold, any likeness of the seals of the President or Vice President, or any substantial part thereof, except for manufacture or sale of the article for the official use of the Government of the United States, shall be fined under this title or imprisoned not more than six months, or both.” While the chances of this law being actually enforced may be low, it has been enforced in the past in connection with more serious crimes. See United States v. Kimberlin, 805 F.2d 210, 228 (7th Cir. 1986) (Seventh Circuit Court of Appeals affirming conviction of illegal use of the presidential seal and impersonating a federal officer).
So there you have it: Trump can copy Obama’s cake but your local bakery can’t. It may not be a copyright violation, but there may be some jail time or a fine hanging in the balance.