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Here's a story to kick off your discussion:

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President Trump, left, and Vice President Pence are helped by Coast Guard Petty Officer 2nd Class Matthew Babot as they cut a cake at the Armed Services Ball. (David J. Phillip/AP)

Amid the glitz of President Trump's inaugural festivities, one item stood out in particular late Friday night: a spectacular nine-tier cake that the new president and Vice President Pence cut into with a sword.

To pastry chef Duff Goldman, the cake seemed a little too familiar - because it looked almost exactly like one he had made years earlier for Barack Obama's second inauguration as president.

Just after midnight, the Food Network personality posted a side-by-side comparison of two cakes on his Twitter account.

On the left, Goldman wrote in the caption, was the cake he had created for the Commander in Chief's Ball in 2013. The one on the right was the cake that had just appeared at Trump's Salute to Our Armed Services Ball.

It appeared nearly identical to Goldman's cake from four years ago, right down to the colors, the patriotic bunting and the placement of several small silver stars and seals.

"I didn't make it," Goldman wrote about Trump's cake, adding a suspicious thinking-face emoji at the end.

The cake on the left is the one I made for President Obama's inauguration 4 years ago. The one on the right is Trumps. I didn't make it. 🤔 pic.twitter.com/qJXpCfPhii
- Duff Goldman (@duffgoldman) January 21, 2017

The Maggie Austin LaBaugh cakes that look like another baker's? 'An homage.'

Neither Goldman nor representatives from Trump's transition and inauguration teams responded to requests for comment Saturday morning. Late Saturday afternoon, a member of Trump's inauguration team redirected questions to planners of the inaugural ball with the Defense Department. Spokespeople for the department said Sunday evening that they were not the ones to answer questions regarding the ball. Goldman did not respond to requests for comment throughout the weekend.

On Saturday morning, Tiffany MacIsaac, owner of Washington's Buttercream Bakeshop, stepped forward to say she had been the one to create the much-talked-about cake.

She said that the order came in while she was out of town and that the client had brought in a photo of the cake from Obama's inauguration, asking her to re-create it.

"They came to us a couple of weeks ago, which is pretty last minute, and said 'We have a photo that we would like to replicate,' " MacIsaac told The Washington Post by phone. Her bakery tried to encourage the client to use the photo as "inspiration," as they do with many others, she said.

"They said, 'Nope, they want this exact cake. It's perfect.' And we said, 'Great,' " MacIsaac said. Neither she nor her spokeswoman revealed who placed the order. The Salute to Our Armed Services Ball was one of three official presidential inaugural balls held Friday and open by invitation only to members of the military, veterans, first responders and their families.

View this post on Instagram

Excited to share the cake we got to make for one of last night's inaugural balls. While we most love creating original designs, when we are asked to replicate someone else's work we are thrilled when it is a masterpiece like this one. @duff_goldman originally created this for Obama's inauguration 4 years ago and this years committee commissioned us to re-create it. Best part is all the profits are being donated to @humanrightscampaign, one of our favorite charities who we have loved working with over the years. Because basic human rights are something every man, woman and child~ straight, gay or the rainbow in between~ deserve! (Check out Tuesday's Instagram post to see how much we were able to donate!)

A post shared by Buttercream Bakeshop (@bttrcrmbakeshop) on

MacIsaac declined to state her political affiliation but said her bakery began planning how it would donate its proceeds from the Trump inaugural cake to charity. The baker and her staff chose the Human Rights Campaign, a nonprofit that advocates for equal treatment of the LGBT community - and that has declared Trump "unfit for the presidency."

"I'm a small-business owner, and one of the things I'm very, very proud about is that I don't discriminate," MacIsaac said. "I would never turn someone away based on their age, their sex, their sexual orientation, their political views. It's just not the way we operate."

MacIsaac said the attention caught her by surprise partly because, per the order, the Trump cake was intended to be more of a prop: All but a three-inch slice at the bottom was inedible.

"It's just a Stryofoam cake. It's not for eating," she said. "I wasn't expecting it to be seen on TV."

As is customary with many of her creations, MacIsaac posted a photo of the re-created cake on Instagram the day after the event. By then, Goldman's tweet - and controversy over the cake - had found its way to her.

"Obviously, my intention was definitely not to upset him in any way," MacIsaac said of Goldman, whom she does not know personally. "I just wish that it had not been presented the way that it was."

Goldman, who founded Charm City Cakes in Baltimore and Los Angeles, is known for his showstopping cake creations. From 2006 to 2011, the Food Network reality show "Ace of Cakes" followed Goldman as he ran his bakery and pulled out all the stops to construct elaborate cakes. These days, the celebrity pastry chef is better known to pint-size bakers as "Chef Duff" as one of the judges on the network's "Kids Baking Championship."

Later Saturday, Goldman posted to Twitter again, with an apparent change of heart.

"Remembering a fantastic cake I made is awesome and the chef that re-created it for @POTUS Trump did a fantastic job," he tweeted. "Group hug, y'all."

"It was our honor to create this cake for last night's Commander-in-Chief Ball - an experience we will never forget," the Charm City Cakes Facebook page noted with a picture of the cake the day after Obama's 2013 inauguration. (For the record, Obama has said he is more of a pie person.)

This Trump victory cake will haunt your dreams

It was not the first time a celebratory cake for Trump had made headlines. On Election Day, a large bust of his head - in cake form - was carted into Trump Tower for his victory party. The jarring image set Twitter afire.

Allegations of plagiarism also are not new in Trump's nascent administration. During his transition, Trump aide Monica Crowley said she would not take a national security communications post after charges she had plagiarized several passages in her 2012 book.

And the president's spouse, Melania Trump, was accused of lifting a portion of her speech at the 2016 Republican National Convention from one Michelle Obama gave at the 2008 Democratic National Convention.

And shortly after Trump gave his inaugural address on Friday, some thought that a small part of his speech sounded quite similar to words uttered by the Batman villain Bane in " The Dark Knight Rises."

Trump national security spokeswoman Monica Crowley to forgo post amid plagiarism charges

Melania Trump's apparent plagiarism caps difficult start to GOP convention

This section of Trump's inaugural address sounds a lot like Bane from 'Batman'

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Trump's inaugural cake was commissioned to look exactly like Obama's, baker says

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Amid the glitz of President Trump's inaugural festivities, one item stood out in particular late Friday night: a spectacular nine-tier cake that the new president and Vice President Pence cut into with a sword. To pastry chef Duff Goldman, the cake seemed a little too familiar - because it looked almost exactly like one he had made years earlier for Barack Obama's second inauguration as president.

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Here's a Wikipedia entry to kick off your discussion:

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America

Sculpture installed at the Guggenheim Museum in 2016

Artist
Maurizio Cattelan

Medium

Gold sculpture

America is a sculpture by the Italian artist Maurizio Cattelan. An example of satirical participatory art, it is a fully functioning toilet made of 18- karat solid gold. It was stolen in 2019 from Blenheim Palace, where it was exhibited on loan from the permanent collection of the Solomon R. Guggenheim Museum.

Solomon R. Guggenheim Museum

Cattelan created the toilet in 2016 for the Solomon R. Guggenheim Museum in New York City. It was made in a foundry in Florence, cast in several parts that were welded together. Made to look like the museum's other Kohler toilets, it was installed in one of the museum's bathrooms for visitors to use. A special cleaning routine was put in place.

According to the museum, over 100,000 people waited in line to use America, which was guarded by a security guard posted outside the bathroom. According to Cattelan, the work was made of 103 kilograms (227 lb) of gold, which in September 2019 was valued at more than four million dollars as bullion. As an artwork, it has been estimated as high as six million.

In September 2017, when the museum declined a White House request to loan its 1888 Van Gogh painting Landscape with Snow for President Donald Trump's private rooms, curator Nancy Spector offered to loan America instead. Any reply by the White House was not reported.

Blenheim Palace

In September 2019, America was installed at Blenheim Palace in the United Kingdom, where it was available for use as part of an exhibition of Cattelan's works. It was placed in a water closet formerly used by Winston Churchill.

On 14 September, the sculpture was stolen. A representative of Blenheim had earlier commented that because America was plumbed in, and potential thieves would be aware of its use, security was not much of an issue. Because it had been connected to the building's water pipes, the theft caused structural damage and flooding to the World Heritage Site. Two men were arrested and released in connection with the incident. Cattelan commented: "I always liked heist movies and finally I'm in one of them."

Blenheim's insurance company has stated that up to approximately $124,000 can be paid in reward for the return of the toilet. In mid-October, three new arrests were made in connection to the theft.

The Guggenheim museum linked the meaning of the sculpture to the career of Donald Trump, writing in September 2016 that "the aesthetics of this 'throne' recall nothing so much as the gilded excess of Trump's real-estate ventures and private residences". Cattelan himself declined to give an interpretation of his work, which he conceived of before Trump's presidential candidacy. He said that the connection to Trump is "another layer, but it shouldn't be the only one."

The work has also been described as an interpretation of Marcel Duchamp's 1917 sculpture . Art critic Jonathan Jones, using the work at Blenheim Palace, opined that it felt "Much like peeing on porcelain. But here, among all the photos of young Winston, it also feels like pissing on British history." He also found the sculpture reminiscent of prime minister Boris Johnson's hair.

In 2002 Winger Lam Sai-wing, a Hong Kong businessman, included two gold toilets in what he called a shrine to Lenin. He referred to a saying of Lenin about the use of gold after the victory of socialism.

In 2019 the Hong Kong jewellery firm Coronet displayed a gold toilet in Shanghai. This toilet had a seat made of bulletproof glass containing more than 40,000 small diamonds.

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America Sculpture installed at the Guggenheim Museum in 2016 Artist Maurizio Cattelan Medium Gold sculpture America is a sculpture by the Italian artist Maurizio Cattelan. An example of satirical participatory art, it is a fully functioning toilet made of 18- karat solid gold.

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They actually do look alike!

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Under 17 USC section 101, "'pictorial, graphic, and sculptural works' include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article."

Under Star Athletica, a feature of "the design of a useful article is eligible for copyright protection if, when identified and imagined apart from the useful article, it would qualify as a PSG either on its own or when fixed in some other tangible medium." However, the only feature of a useful article that is protectable by copyright is the design, not the utilitarian article itself.

My first argument in favor of extending copyright protection to the cake Duff made for Obama's inauguration would actually be that the cake wasn't a useful article. Generally, cakes like this are largely inedible, and the article linked mentioned that only the bottom 3 inches of the Trump cake was actually made out of cake. With only one small portion of a large cake serving a utilitarian purpose, it seems that the primary purpose of the cake wasn't to be eaten but rather to be enjoyed as art. As such, since the cake's primary purpose was not utilitarian, and the cake was expressed in a tangible, fixed medium, I think it could be successfully argued that the cake wasn't a utilitarian article.

If that failed, then applying the test from Star Athletica, it is possible to separate the design of the cake from the utilitarian aspect of an edible food. Likewise, it's possible to imagine the color scheme and fondant decorations, such as the seals and stars, expressed on an artist's canvas. If the design were drawn on a canvas or even adhered to fondant without being put on a cake, it would meet the low bar of originality that's been applied by the court, and would be protectable by copyright. As such, it seems that the design would be copyrightable.

However, as the Star Athletica Court emphasized, this protection would apply only to the design itself, not the cake beneath the artistry. Bakers would still be free to fashion their own cakes, even in similar proportions, but wouldn't be able to cover them in designs that look, let's face it, exactly like Duff's.

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Arguments that can be made that design features of America are separate from its utilitarian features 

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Arguments that can be made that design features of America are separate from its utilitarian features 

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The questions are: 1. whether the cake is a useful article, and 2. whether the cake design is eligible for copyright protection as a pictorial, graphic, or sculptural work as a design that could have originally been fixed in some tangible medium other than a useful article before being applied to a useful article.
A “useful article” is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article”
Star Athletica test:
"an artistic feature of the design of a useful article is eligible for copyright protection 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 in some other medium if imagined separately from the useful article. "
1. The cake itself cannot be copyrighted as it IS a useful article. The inaugural cake was created for consumption (eating) purposes and was an edible composition decorated with inedible elements, which in their turn, are part of the useful article. Thus, the cake, even if not fully edible, has the utilitarian function and after consumption does not serve any other purpose and ceases its existence (basically, thrown away) and is not being enjoyed as an art work.
2. "The design of a useful article, …, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." Although, it is possible to imagine the cake design separate from the utilitarian aspects of the cake, I state that such design lacks certain elements of a copyrightable item. "Copyright protection subsists, …, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated…" The authorship and fixation requirements are present; however, I would argue the originality of the Duff's cake design. The design elements (bunting, colors, coins, red-white stripes, stars, flag colors) are very traditional and have been utilized in many other objects, including cakes, for a very long time. Duff will not be able to claim originality/authorship over presidential seal and the government emblems as they belong to the US Government. Moreover, the use of the presidential seal (or anything that resembles it) is prohibited except for official gov use only. If the argument is that the aforementioned design elements are selected, coordinated, or arranged in a way that may constitute compilation, I would state that the Duff's cake design elements (bunting, flag elements, seal, emblems, and colors) fall under "scene au faire" doctrine (‘courts will not protect a copyrighted work from infringement if the expression embodied in the work necessarily flows from  a  commonplace  idea’,  Ets-Hokin  v.  Skyy  Spirits,  Inc.) There are only so many ways the "themed" elements can be arranged on the cake.

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Patriotic cakes (all of them do have the same decorative elements)

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Patriotic cakes (all of them do have the same decorative elements)

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4Th Of July Birthday Cakes Patriotic Birthday Cake 2015 Patriotic Birthday Cake 2015 My in 2020 | 4th of july cake, Fourth of july cakes, Birthday cake toppers

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Jan 20, 2020 - 4Th Of July Birthday Cakes Happy 4th Of July Birthday Cakecentral. 4Th Of July Birthday Cakes The Shank Family 4th Of July Birthday Cake. 4Th Of July Birthday Cakes 4th Of July Themed 1st Birthday Cake Cakecentral. 4Th Of July Birthday Cakes 4th Of July...

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Was there an agreement between the USG and Buttercream? If yes, it could have been a work made for hire.

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Arguments in Favor of Separability ( Gabriel will be posting Arguments against)

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Arguments in Favor of Separability ( Gabriel will be posting Arguments against)

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oIs the golden toilet separable under Star Athletica?

Background on America:
The toilet was created in 2016 by

Maurizio Cattelan out of 18K gold for the Guggenheim museum.
It was made in a foundry cast with parts welded together, it was made to look like one of the museums Kohler toilets. The sculpture was a fully functional toilet and was installed in the bathroom of the museum. While installed in Blenheim Palace, the toilet was stolen.

The toilet has been interpreted in a number of ways, including as political commentary on the presidency of Donald Trump. The work has been described as an interpretation of Marcel Duchamp's 1917 Sculpture Fountain.
Only two other instances of gold toilets are listed in the article, a 2002 Hong Kong Business man's two gold toilets in a shrine to lenin, and a Hong Kong Jewelry firm Coronet displayed a gold toilet in Shanghai in 2019 with a seat made of bullet proof glass containing more than 40,000 small diamonds.

So, is America protected by Copyright Law?
I will be providing the arguments in favor through the lens of
Star Athletica v Varsity Brands.

In the Star Athletica case, the majority held that industrial designs that incorporate artistic elements are subject to copyright protection so long as they are separable from the utilitarian aspects of the piece.

The majority rejected the reasoning in the dissent that argued that the designs on the cheerleading uniforms were not separable because if they were reproduced on a canvas they would be paintings of cheerleading uniforms, or that if the elements were removed, the item would have no utility as a plain white uniform.

The majority argued that the designs were separable because the designs themselves were unique and original graphic illustrations. They rely on analysis from Mazer in which the statuettes that served as  the bases of the lamps were artistic works, whether or not they were used as the base of a lamp. And while anyone was free to create a lamp with a statuette as the base, they could not copy the specific statuette's created by Mazer.

The cheerleading uniforms were designed with lines, chevrons, and specific color blocking and other design features that gave them a distinct look. They meet the low bar for originality established in Bleistein.

Whether America is similarly separable is a much more complicated question.
Part of the feature of the art is its functionality as an interactive form of satirical modern art. The utilitarian functionality is a part of the expression, not merely utilitarian.

Further, the design of the toilet itself is not unique aside from the material it is made of, in fact the design is specifically a copy of the existing utilitarian item present in the museum.

However, there are some arguments that at least some elements can be copyrighted:
For example, Duchamp's sculpture Fountain, which took the form of a urinal was not functional when it was presented as art, indicating that placing the toilet outside its traditional context transformed it. It is arguable that if someone else took an identical urinal called it Fountain and submitted it as art, they would have infringed on Duchamp's copyright.

With America, the tension is its utility, however, I think it can be argued that the medium it is created with makes it distinct enough to be subject to copyright. When it was in the museum, people lined up to use this toilet eschewing the regular ones not just because it was gold, but because it was art. The toilet was stolen, not because it was a toilet, but because it was a valuable piece of art.

Thus, it's clear that the public's interest in the design, and the legitimacy of the piece
is separable from its utilitarian features as a toilet, which is unremarkable and not copy rightable. Cattelan is not trying to copyright all similar toilets, but a gold Kohler style toilet title America.

Even without the utilitarian aspect, it would likely still be considered art, for example if the piece were removed from a bathroom stall and instead placed in the center of a museum show floor, it would likely still draw attention as an artistic piece in the same way Fountain did.

The piece was cast in a foundry, the material was specifically selected, the title as applied to the piece is conceptually unique, if you took the subject of the sculpture and placed it on a painting, it would still be an art piece and likely the subject of some copyright protections.

The question is to what extent those protections would apply.
For example, I think it's unlikely that the court would apply it to a commercially available gold toilet, unless the toilet were specifically called "America" and modeled in some way designed to create an association with the work of art instead of the utilitarian features.

Ultimately I think this would mostly be a copyright that could be enforced against other artists, but I think the copying would have to be extremely blatant, because there's not much of the design outside of some specific highlighted features that are subject to copyright.

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The Court in America held that an artistic feature of a design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a two- or three-dimensional work of art as separate from the useful article and (2) would qualify as a protectable pictoral, graphic, or sculptural work either on its own or in some other medium if imagined separately from the useful article.

In this case, the merit of the art in question is the fact that it is a toilet. Outside the feature of the design, there is only gold—the material the toilet is cast in, and that cannot be perceived as a work of art separate from the useful article, the toilet. This is especially true because the merit of the piece is on the toilet’s operation. To be able to actually sit in and use the toilet imparts a much stronger artistic message on the viewer than simply being able to observe it. Thus, the toilet’s existence and operation is as imperative as the material it is made out of. They cannot be separated and retain artistic merit.

In Starline the design of the uniform could merit a piece of art outside of the design of a uniform because it could be shown on a canvass or another medium. In this case, the gold material cannot be copyrighted as an artistic work outside the medium of the toilet. Thus, the second element is also not met.

In his dissent, Justice Breyer entertains the notion, “can the design features be physically removed from the article, all while leaving the fully functioning utilitarian object in place? If not, can one nonetheless conceive of the design features without replicating a picture of the utilitarian object? If the answer to either of these questions is “yes,” then the design is eligible or copyright protection.”

In this case, the gold feature cannot be physically removed from the article and considered separately while leaving the toilet in place. This is because they are inseparable – the artistic merit of the piece is derived from the material the toilet is placed in, and the toilets’ use. Moreover, the material cannot be considered separately, because it derives no independent artistic merit.

Courts have repeatedly denied copyright protections to objects that begin as three-dimensional designs and are incorporated as additions to a standard item, such as a spoon shaped like a heart. This is because the design is not separable from the object to which it relates. Justice Breyer states “these designs cannot be physically separated because they themselves make up the shape of the item,” and these items are useful. The same reasoning applies to the toilet; the design cannot be independently copyrighted or separated because it makes up the shape of the item.

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You, too, can be the proud owner of a gold toilet

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You, too, can be the proud owner of a gold toilet

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It's hard to imagine that a gold toilet is subject to copyright when you can purchase gold toilets as useful articles. Now, if the toilet was gold with intricate designs, I think there could be a better argument... but the toilet in this case was designed to be an exact replica of the Kohler toilets in the bathroom, only in gold.

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