Tom Clyde: The law of cakes
The 24th of July holiday was celebrated in fine fashion out at the ranch. The family had skipped our big Christmas party back in December because of the plague. Nobody was happy about that, so we decided to have a “do-over Christmas” in July at the annual barn party. It got complicated. Buying Christmas-themed paper plates in July is not easy. Cheap, but not easy.
The Christmas tree always looks like a Charlie Brown effort in the house. It’s one of those artificial trees, a six-footer, that is about right for my small house. In the voluminous loft of the dairy barn, it looked like a scrap of loose hay. Once the illuminated cows, pigs and tractors were strung on it, and the rubber chicken ornaments, it did the trick. A nephew went sort of over the edge with other decorations, and the place looked festive. My sister-in-law even cleaned up all the raccoon poop. So between Christmas carols, bean spitting contests and the important Jello-O slurping event, it was a huge success. One nephew had been married for less than two weeks, and this was his wife’s first introduction to 40 new in-laws in their native environment. They are still together.
In addition to delayed Christmas, it was the 80th birthday of the John Deere B tractor (hand start, 12 horse power on a good day). That required some observance, and quickly pushed me into the legal quagmire surrounding cake decoration.
Cake law became complicated a few years ago with the gay wedding cake case. Back in 2012, a gay couple from Lakewood, Colorado, were legally married in Massachusetts, and came home to Lakewood for a reception. They went to a local bakery called Masterpiece Cakeshop to order the traditional wedding cake for what then (not 10 years ago!) was a shockingly non-traditional wedding. The baker refused to make a cake for them on the grounds that decorating a wedding cake with two grooms on it would violate his Christian faith. Everybody remembers the cake decorating rules Jesus announced in the Sermon on the Mount.
Anyway, the couple found another cake decorator and had their reception. Then the frosting hit the fan. They decided to sue Masterpiece Cakeshop back to the stone age. It landed before the Colorado Civil Rights Commission, who ruled that if somebody is in business, offering to serve the general public, the business could not discriminate against marriages the baker did not approve of on religious grounds.
The cake decorator sued Colorado, and it went to the US Supreme Court. There, in a typically muddled ruling in 2018, the Court reversed it, and said the proceeding in Colorado had “exhibited hostility” to the baker’s religious beliefs. The case didn’t really answer the balance of when religious beliefs of a business owner can be the basis of a denial of service to some members of the public. It really hung on the idea that the proceeding in Colorado had been biased.
As far as I know, there were no religious issues associated with the proposed design of the birthday cake for the John Deere. It was a simple bit of artwork, a profile of the tractor extracted from a photo of mine with Photoshop. None of the stores in Park City or Kamas had the ability to print a photo on a cake, which seemed pretty odd. But they all said it couldn’t be done. My niece took it to a bakery in Salt Lake who said, “no problem, we do it all the time.”
And then the law stepped in. Apparently, they do some kind of computer check of proposed cake artwork. They (wrongly) concluded that my photo of the side of the John Deere B was a copyrighted image, and refused to print it. (I suspect they were really Allis-Chalmers people, and this really was a religious freedom case.) I wasn’t there to argue the point. John Deere made 300,000 of the Model B tractor, and they all looked alike. Any photo of the side of a B will look exactly like any other B when you strip out the background. They refused to use my photo, but said they had a duly licensed John Deere tractor they would use instead. At this point, it was all happening over the phone, time was short, and we said go for it.
When my niece picked up the cake, the substituted John Deere tractor was some dual wheeled behemoth from the current model line-up, not the treasured 80-year old. It was too late to make a change, so we used it. Tasted the same. Imagine opening a birthday cake that you expect to have a photo of your 80-year-old grandmother on it, and instead find a photo of some non-copyrighted, public domain 3-year-old. It kind of killed the moment.
But no cake decorators were hauled before the courts to explain their violation of a copyright of a photo of the side image of one of 300,000 identical tractors. Justice was done, and we danced the hokey pokey in the loft of the barn, lit up by an orange full moon in a smoky sky.
Tom Clyde practiced law in Park City for many years. He lives on a working ranch in Woodland and has been writing this column since 1986.
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