Do the designs of cakes fall under intellectual property law (e.g. copyright) in the USA?

Question

Following on from the question Was Trump's Inauguration Cake plagiarized?:

• Do the designs of cakes (incorporating factors such size, shape, colour and decoration) fall under intellectual property law (e.g. copyright) in the USA?

Answer 1

Aspects of a cake's design can be protected by copyright. But, there are a few hurdles.

First, the design needs to be original. That is, it has to be an exercise of a modicum of creativity. (Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991))

Most important though, the aspect of the design that the author seeks to protect via copyright must be separable from the utilitarian aspects of the article. You couldn't protect vertical sides, or a hard, crumble-based bottom. Even in a world where those elements were original (they probably aren't) they are utilitarian aspects, driven by function, and would not be protected by copyright. (US Copyright Office: Useful Articles)¹

To the extent that these elements are separable from the ultilitarian purpose of the cake (I concede that this is almost the entire question), a particular choice of shape, color, decorations, graphics, etc. can protected by copyright as a "pictorial, graphic, [or] sculptural work". 17 USC 102(a)(5)

This test was most recently clarified in Star Athletica v. Varsity Brands 580 U.S. ____ (2017) (slip opinion):

A feature incorporated into the design of a useful article is eligible for copyright protection only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated.

Certain elements of cake design may have become scènes à faire, stock elements commonly re-used by many authors in a given context (pillars, successive cylindrical layers, etc.). These elements would not be protected.

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^{1. The separability of copyrightable design from functional design was considered right from the outset of the Copyright Act of 1976, in response to Mazer v Stein. H.R. REP. NO. 1476, 94th Cong., 2d Sess. 47, 55 (1976):}

^{A two-dimensional painting, drawing, or graphic work is still capable of being identified as such when it is printed on or applied to utilitarian articles such as textile fabrics, wallpaper, containers, and the like. [...] The test of separability and independence from “the utilitarian aspects of the article” does not depend upon the nature of the design—that is, even if the appearance of an article is determined by esthetic (as opposed to functional) considerations, only elements, if any, which can be identified separately from the useful article as such are copyrightable. And, even if the three-dimensional design contains some such element (for example, a carving on the back of a chair or a floral relief design on silver flatware), copyright protection would extend only to that element, and would not cover the overall configuration of the utilitarian article as such.}