Originally Posted by Rose_N_Crantz
I know of a home baker near where I live who does not charge for her cakes/cookies, but instead she gets compensated by way of a donation. She will give you a list of how much the cake cost her (ingredients) and then she lets the person accepting the cake decide how much they want to donate. It seems to make sense to me because technically, you're not making a profit on someone else's image. You're simply making something to give to a friend. If you wanted to make a career out of this, I would not do this method as I'm sure most people will think ten dollars more than what it cost you would be a good price.
However I feel obliged to point out that this is an incredibly sneeky way to get around that law. I haven't spoken to a lawyer about this to see if that is legal, but I would think someone would find something wrong with that.
Who knows, you could do character cookies, but only by request. Don't advertise that you do, but if someone asks you could accept. What are the chances of a Sesame Street writer/illustrator being at a party that was serving some of your Elmo cookies? I had to deal with the same issue this summer over graduation photos. My bakery required the customer to get written permission from the photographer allowing us to reproduce their image on a cake. Most people laughed about it, but then one weekend one of the decorators got a call from a photographer who was VERY upset that we reproduced a photo he took without his permission. And I can understand why he would be upset. Which is why I personally don't reproduce anything that was made by someone else. I even feel kinda weird about making a cake from a pic I see on CC, I try to modify it a little so it doesn't seem like I was copying.
But I have a question about the Smiley Face cookies. Did that restaurant have ownership of the smiley face design? Or were they just trying to give some legal advice? If they don't have ownership, then they can't take her to court. Since it's not theirs. The original illustrator of the smiley face could. (I wonder who that is?)
If you receive any kind of monetary compensation (donations included) for goods, you're selling them, and it's illegal if you're not licensed or complying with whatever food laws are in place in your state.
As far as what are the chances of a person being at a party with a copyrighted cake, who knows? I took a phone call from the father of a previous client who was buying a baby shower cake. He told me that his wife wanted a classic Pooh theme, and I told him that I could do a woodsy scene, but nothing exactly from the illustrations because it's copyrighted. He said "oh, that's good...I'm a copyright attorney. I'll have my partner tell you some stories about that kind of stuff."
You can never tell who you'll run into...