Fair point…but I’m not the one arguing that some degree of customization should be the legal standard here. I’m not super comfortable with the idea of having a purely case-by-case legal standard for what is or is not exempt artistic expression. That seems like a recipe for chaos.
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You’re missing the common denominator in this case. Custom wedding cake. A cake designed by someone who professionally designs custom wedding cakes. That person is the subject of the ruling, not Beethoven. In this case the judge found that there was artistic expression with respect to those wedding cakes. Nothing more.
Or more precisely he found that there was first-amendment protected speech inherent in all wedding cakes.
Unless they were already sitting on the counter when you came in to place their order.
Show me where he said that. I’m betting he didn’t.
But what is Buddy when he bakes and decorates the 497th copy of a cake that maybe his father designed 40 years ago? I very clearly said that cake/decorating can be artistic, but I’m wondering if you have ever ordered a cake for a wedding or any other event. Here is how it goes in most places, most of the time.
- The customer chooses a design from a book or a display. The baker is not making a custom design for this cake. The cake has already been designed and at this point, the baker is simply baking and assembling it. The act of baking itself isn’t artistic and assembling the cake is no more artistic than assembling an IKEA table is.
2)The customer chooses the flavor of the cake, the flavor of any filling, the type and color of any frosting. The baker isn’t making any of these choices, so the choices are not an expression of the baker’s artistry. This could be artistic if the baker was creating a brand new flavor for the cake,filling or frosting but typically the customer must choose from a pre-determined list.
Now , if I met my husband while we were both working at an amusement park, and I ask Buddy to design a cake in the shape of a roller coaster, chances are that he has not already designed such a cake, and he will be making a custom design. That is clearly artistic. But if one of Buddy’s employees (or even Buddy himself) bakes, assembles and decorates wedding cake #W500 using my choice of colors,filling and cake flavor from his pre-determined list , I’m not sure how that is more artistic than when a Costco employee does the same thing.
Your song example would fit better if the songwriter burned a CD of several of the writer’s songs when people ordered it, rather than having them pre-made. Because it is for a gay wedding, he refuses to be compelled to make them a copy, like he would for a straight wedding.
You are correct that he cannot be forced to write a new song. But if he makes compilation tapes for customers, then he has to make them for all.
That’s basically the same as the baker. He was not going to create something new and unique, but instead, use old designs to make something very similar or even exactly the same as he has done for same sex couples.
There ain’t nothing here that says the cake has to be custom or unique.
And that’s it right there. He can’t be forced to create a new song (bake a custom cake) but he can be required to sell previously existing “for sale” songs (the display case).
This is what people are missing in this case, choosing instead to compare it to placing one or two pickles on a hamburgers etc.
I guess you missed the …*It is an artistic expression by the person making *… part of the ruling.
No, I simply read the whole damn thing I quoted. The first two sentences of the quote:
“A wedding cake is not just a cake in a Free Speech analysis. It is an artistic expression by the person making it that is to be used traditionally as a centerpiece in the celebration of a marriage”
THAT is the goddamn “artistic expression” he’s talking about. Any wedding cake qualifies. Because, and I quote here, it “is not just a cake”. Due to the fact it’s a wedding cake alone.
In other quotes in the article he clarifies that the thing that gives the wedding cakes this magical quality of specialness is because they’re “sacred”. Surely a legal term of art.
The baker has a set of options:
-Vanilla or chocolate or golden or carrot
-Buttercream or ganache or cream cheese or that plaster shit whose name I can’t think of that looks pretty but tastes like glue. Fondant! Thanks google!
-Rosettes or full roses or vines or simple piping
-Ornaments or no ornaments.
The people in question based theirs off a display cake, meaning they didn’t ask for anything unusual.
So here’s my question.
Cake A is in the display case and is already made.
Cake B is one that’s identical to the one in the display case but it’s not been made yet.
What specific ideas are communicated by the second cake that are not communicated by the first cake? How is this effectively communicated (as opposed to being some mystical bullshit about communication that doesn’t reflect how communication works in the real world)?
You keep harping on the idea that somehow a cake prepared after showing a customer a book of images of samples somehow cannot be custom?
Who do you think came up with the examples in the binder full of pictures of cakes?
Artists quite commonly present portfolios as samples of their works. Painters, sketch artists, and graphic designers among others commonly present visual portfolio representations of a history of their work. Singers, musicians, composers, and speakers may provide sample audio tracts as a portfoilo. And none lose their right to control works by virtue of having already painted/drew/sang/etc… the work once before.
So when the representative of the MLK family who oversee his legacy decide to let a car company use a portion of one of his speeches in a truck commercial that does not obligate them to do so again or for a different organization that might represent a protected class for that matter.
The whole - OMG the customer made choices based upon what they saw in a porfolio so its not really custom - is not an even a halfway decent argument.
I’m just glad that I live in an America where all bakers are Buddy Valastro (et al).
It was Trump wasn’t it?
CMC fnord!
color mine.
You’ll need to get around that sentence, as it applies to the cake in question, to rebut any of this and you’re not doing that.
I’m harping on this because the judge said it mattered. The baker has to sell you any cake sitting on the counter, but if you point at a cake sitting on the counter and say “I want you to make me a cake exactly like that one,” then the baker can tell you to shove off.
Is that stupid? Yes! Does that utterly annihilate the idea that the issue is speech-as-creativity? Yes! That’s kind of the whole point. The judge constructed a situation where creativity is provably not the point. It’s not the uniqueness or creativity or difficulty of creation that matters here - it can’t be, or the ‘sitting on counter’ exception wouldn’t be possible.
Having utterly deprived himself of any rational basis for saying new-made cakes are speech and (for example) hamburgers are not, the judge fell back on “sacredness”. I’m no lawyer, but that sounds tenuous from a legal standpoint.
So why did the judge blow this giant hole in his own case? Well if he didn’t then any baker could just put up a sign saying “Black people not served” and it would be covered by his case’s precedent. No way this wouldn’t get reversed in seconds by higher, non-bigoted courts.
As to how to distinguish that which is artistic and deserving of protection from that which is not…
In the Masterpiece Cakeshop oral arguments at the SCOTUS this issue was raised. And one of the proposed ideas which was not immediate torn apart by the justices was to the effect that if a significant premium above cost of materials was being paid then that is a sign that the customer values the artistic intent. The flour, butter, sugar, and flavorings that go into making a cake the size of a three tiered wedding cake cost maybe $50, generously. That the customer is willing to pay $750 is a sign that they ascribe value to the artistic effort of creation. If the supermarket bakery can only turn that $50 of ingredients into $100 of product then perhaps that is more a retail markup and not a sign of artistic value.
Unfortunately I have some modicum of skill in reading comprehension, so I know that the sentence in question doesn’t mean what you think it does. So I don’t have to get around anything -you do.
Have a nice day.
Okay fine. You tell us what "A wedding cake is not just a cake in a Free Speech analysis. It is an artistic expression by the person making it … means. I don’t think you’re comprehending the judges order.
The SCOTUS must be pretty out of touch if they think things are usually sold at cost. Profit margin is a result of lots of factors - and for wedding cakes I suspect “what the market will bear” is the biggest one.
When people compare making a custom cake to pouring a tap beer or making a burger, I don’t really think they get it. And considering the judge in the case said the following:
and people in the thread respond with idiotic shit like:
No, I don’t think they really get it. I think they are more interested in being outraged than principled.
As far as to the amount of customization, I’d say any bespoke order. Possibly adding wording, though I suspect that depends on the actual phrase. For example, taking a stock cake and putting the names Dan and Bob on it? Baker probably has to do it. Putting ‘Dan and Bob married under our lord Jesus Christ’, probably not. But then again, I am not a judge…
Slee