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Copyrights on a cake design? - Page 10

post #136 of 150
Thread Starter 
Quote:
Originally Posted by modthyrth

EEEEEEEEE this thread is making my skin crawl! For the record, I am an attorney, I'm currently not practicing but I focused on IP issues. And so many of you are giving such incredibly bad, incredibly wrong information! Not maliciously, I know, but from a very imperfect understanding of copyright law.

If all of you take away only one thing from this post, let this be it:

You do not need to register a copyright with the US copyright office! You own the copyright from the MOMENT OF CREATION. For example, I now own the copyright on that previous sentence from the moment I wrote it. Now, to *enforce* your copyright, it's helpful to register your copyright with the US copyright and trademark office. But it is not required!! Just becasue you can search and not find something on that website does NOT mean that someone else doesn't own the copyright!!! Whomever created a particular design first owns the copyright, not whomever recorded it first. This is not a race-to-record statute.

A copyright covers the expression, not the idea. Is this chick the first one ever to create a hamburger cupcake like that? No way. We can find plenty of earlier instances (many cited here) and so she definitely doesn't own the copyright. She knows enough about copyright law to be dangerous and annoying, but she doesn't understand the nuances. She might make a stink, but she doesn't have a legal basis to stand on.



just what we've been waiting for! thank u for chiming in!!! i appreciate u helping us understand this!!! thumbs_up.gif
post #137 of 150
I LOVE this thread and have my two cents to throw in ...

modthyrth - Thank you for your legal perspective! So now that we understand whoever first created the hamburger cupcake is the official owner of the copyright, can you explain how successive creations of a hamburger cupcake by others might violate the copyright owner's rights? Sorry, that was wordy. What I'm getting at is this - is the entire *idea* of a hamburger cupcake now protected by copyright, or can others create their own version of the hamburger cupcake (by changing colors, the design or detail, etc.), thereby creating a new item that can then be copywritten without violating the copyright on the first hamburger cupcake?

Here's my other thought about copyrights in general - are they really necessary??? Or just something to fret about? I think the key to a successful business is to always stay creative, fresh with ideas and ahead of the competition. Often times, big companies don't even bother with copyrights & patents ... I see no copyright info on Eleni's website. In my opinion, that's because she doesn't need one - she has 'branded' her products based on her quality, appeal, trendiness, originality, etc. To me, those factors will contribute to her success far more than copyrights.
post #138 of 150
Regarding the discussion on whimsy cakes ... I think what I heard is that she trademarked the phrase "Whimsy Cake." That means you can't refer to your cakes as 'whimsy cakes' - but you can still create a cake that looks like a whimsy cake.

Not to be a downer, but the phrase "Edible Image" is actually trademarked by Pillsbury ... this means we actually can't even use that phrase in our marketing materials. Eleni's and others do, but I don't know how they get away with it ... guess Pillsbury doesn't police the way Disney does.

One last note ... I call my business 'Truly Scrumptious Cookies' (a movie I'm fond of because I watched is so much as a kid). When I became an LLC, my lawyer checked to see if the phrase 'Truly Scrumptious' was trademarked because of the movie. Fortunately, it's considered a general and common phrase and not protected by a trademark. Otherwise, I couldn't have used it in my name.

I'm not an attorney, so if I got this wrong - someone please correct me! I don't want to mislead anyone!!
post #139 of 150
Just like if you look on Cookies By Design's website, the phrase "cookie bouquet" has a trademark symbol next to it. I removed that phrase from my website when it was pointed out to me.
post #140 of 150
Quote:
Originally Posted by indydebi

Just like if you look on Cookies By Design's website, the phrase "" has a trademark symbol next to it. I removed that phrase from my website when it was pointed out to me.



I didn't know about that one, and I think that's a real bummer - it seems like 'cookie bouquet' is such a common phrase now that it should be in the dictionary. By the way, did they contact you and ask you to remove references to the phrase?
post #141 of 150
No, they didn't contact me. A friend pointed it out and I removed it right away. Although, in conversation, I would tell people, "We can't call them 'cookie bouquets' .... but that's what they are." I was careful in conversation, but then put it in writing on the website! dunce.gif

I'm just operating under the 'better safe than sorry' theory.

BTW, I contacted my attorney the next day to start the copyright/trademark process on the term "Banna's Bloomers".
post #142 of 150
TScookies--you've hit upon a central issue. The expression is copyrighted, but the idea is not. So imagine the first person who ever came up with the idea for a hamburger cupcake. She got a copyright for her version, the way she expressed the design. Not the concept of a cupcake that looks like a hamburger. I could make one that has faux swiss cheese instead of fondant american, an onion bun instead of a plain one, two "beef" patties instead of one, and I could skew the bun off center instead of having it straight on top. And that would probably be enough to avoid violating the original creator's copyright. Probably. like I said before, there's no bright line rule. icon_wink.gif

Another example: You can't copyright the idea of a three tier white cake with black scrollwork, but you can have a copyright in the exact way you interpret that idea.

And are copyrights necessary? Super tricky question, and entirely debatable. The law can never move as quickly as technology, so it's always trying to catch up in a clunky, ineffective fashion! It's a seriously flawed system, but it's the one we have to deal with, at least for now.
post #143 of 150
i saw a cake shaped like a hamburger in either family circle or womans day over 10 yrs ago!! im sure there really is NOTHING totally new anyone can do to a cake or an idea someone may have that no one else on earth would also have.
post #144 of 150
Quote:
Originally Posted by Tscookies

I LOVE this thread and have my two cents to throw in ...

modthyrth - Thank you for your legal perspective! So now that we understand whoever first created the hamburger cupcake is the official owner of the copyright, can you explain how successive creations of a hamburger cupcake by others might violate the copyright owner's rights? Sorry, that was wordy. What I'm getting at is this - is the entire *idea* of a hamburger cupcake now protected by copyright, or can others create their own version of the hamburger cupcake (by changing colors, the design or detail, etc.), thereby creating a new item that can then be copywritten without violating the copyright on the first hamburger cupcake?

Here's my other thought about copyrights in general - are they really necessary??? Or just something to fret about? I think the key to a successful business is to always stay creative, fresh with ideas and ahead of the competition. Often times, big companies don't even bother with copyrights & patents ... I see no copyright info on Eleni's website (www.elenis.com). In my opinion, that's because she doesn't need one - she has 'branded' her products based on her quality, appeal, trendiness, originality, etc. To me, those factors will contribute to her success far more than copyrights.
post #145 of 150
Thread Starter 
i just wanted to let u know that i submitted a how to article to J&H.....we'll see if they decide to post it or not icon_wink.gif

and Eggshells - i made some of these for a picnic table cake (in my pics)......complete with MMF sesame seeds!!! thumbs_up.gif
LL
post #146 of 150
Okay, okay, I know this has been beaten to death.....
but I just had too.....see the cover of Bake and Make Amazing Cakes by Elizabeth MacLeod (2001)
LL
Award winning cake designer and fine art sculptor.

"An artist discovers his genius the day he dares not to please." ~Andre Malraux
Reply
Award winning cake designer and fine art sculptor.

"An artist discovers his genius the day he dares not to please." ~Andre Malraux
Reply
post #147 of 150
Thread Starter 
tiptip57 - yep, some other CCer's sent me emails with different books/articles that have been published with the cheeseburger cake/cupcake design as well - as amo if ever needed.....but still no word from the copyright queen.....so no worries! thumbs_up.gif
post #148 of 150
modthyrth,

I just wanted to give you a big hug.

#1 - I'm from Arizona and miss it there a TON
#2 - I loved studying law and wanted to go to law school, but my parents talked me out of it... (long story)

I find it interesting how uppety people are about cake designs. Even if two people made a cake based on the same idea, it would be darned near IMPOSSIBLE to make the cakes exactly alike. The Cake Theme of the Month is a good example of that.

Rachel
post #149 of 150
Quote:
Originally Posted by mrsright41401

modthyrth,

I just wanted to give you a big hug.

#1 - I'm from Arizona and miss it there a TON
#2 - I loved studying law and wanted to go to law school, but my parents talked me out of it... (long story)

I find it interesting how uppety people are about cake designs. Even if two people made a cake based on the same idea, it would be darned near IMPOSSIBLE to make the cakes exactly alike. The Cake Theme of the Month is a good example of that.

Rachel



Amen,Rachel...I second that indeed thumbs_up.gif

Cake Decorating Instructor and Wilton Method Instructor 

 

Website: http://frosting111.webs.com/

Facebook Cake Page: https://www.facebook.com/SweetInspirationsCakeDesigns

 

Food brings people together, but a cake makes it a party! 

Reply

Cake Decorating Instructor and Wilton Method Instructor 

 

Website: http://frosting111.webs.com/

Facebook Cake Page: https://www.facebook.com/SweetInspirationsCakeDesigns

 

Food brings people together, but a cake makes it a party! 

Reply
post #150 of 150
Aw, thanks guys. I'm always ready to jump in and add my two cents, even when it's not wanted, but it's much better to be appreciated. icon_wink.gif
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