Copyrighted Characters "everybody's Doing It"
Business By SugarNSpiceDiva Updated 3 Jan 2010 , 8:25pm by Carolynlovescake
OK, so something has been kinda bothering me lately. I just got my vendor's license to sell cakes here on post. I'm really working hard to make sure I do things the "right way."
I know selling copyrighted characters is illegal. But through my research of other cakers in and around my area, literally EVERYBODY does it! 
I don't understand. These people post the pictures right up on their websites. And some of them are actual businesses with storefronts and everything. That mixed with the HUGE amount of illegal cake businesses just in my county is really worrying me. And a lot of these people make good money doing it. I mean I'm not knockin people who sell cakes "under the radar." You do what you do. I illegally sold 1 cake. And that was out of ignorance of the law (and before I knew CC 
) Maybe I'm a "goody goody" or whatever. I just really wouldn't feel like a real business unless I was legit. I mean, I'm sure if one of DH's friends at work asked me to please do their cake for their kid or something, I might be tempted to do it as like a special circumstance or something. But I wouldn't advertise it.
I'm half venting. 
But still I'm worried. How do I compete with that?!?!
Sometimes you can obtain permissions from the copyright holder to use their image in cake form. You probably wouldn't get real far trying to get permissions from Disney, but I'm sure it would be relatively easy for some other characters, team logos, etc.
I wouldn't have a problem at all doing the research to get permission for that. But like you said, with Disney, there's no way. Them, Marvel, Nickelodeon. I know there's more, but those are just some big ones off the top of my head. I know they won't allow it, but yet I see it all the time.
First why would you want to compete with someone who is doing something illegal?
I know some drug dealers from back in the day. I worked hard and made dirt. They did next to nothing and made more in a week then I made in year. I didn't try to compete with that. Extreme example, I know, but you get my point. This topic comes up every now & then, and I never understand why people come on here seeking approval to do something that is illegal. Sure, we all do little illegal things every now & then. I may not always come to a full stop at a stop sign. Doesn't mean I'm gonna ask people if it's okay, just cause it's what I want to hear. Doesn't make it any less wrong.
A lot of storefronts actually have permission. So don't assume they are doing it illegally. You can obtain approval to do some things. You can decorate a cake to fit a theme and buy the kit to put on the cake. That is legal.
In the end, do what ever makes you comfortable.
First why would you want to compete with someone who is doing something illegal?
I know some drug dealers from back in the day. I worked hard and made dirt. They did next to nothing and made more in a week then I made in year. I didn't try to compete with that. Extreme example, I know, but you get my point. This topic comes up every now & then, and I never understand why people come on here seeking approval to do something that is illegal. Sure, we all do little illegal things every now & then. I may not always come to a full stop at a stop sign. Doesn't mean I'm gonna ask people if it's okay, just cause it's what I want to hear. Doesn't make it any less wrong.
A lot of storefronts actually have permission. So don't assume they are doing it illegally. You can obtain approval to do some things. You can decorate a cake to fit a theme and buy the kit to put on the cake. That is legal.
In the end, do what ever makes you comfortable.
I don't get that the OP is asking if it okay to do it... she knows it's not legal. I think she is more or less "musing" as to how she can compete with those who are "possibly" doing it illegally...
(OP, it takes leg work, and a lot of phone calls, but you can get copyright permission on more than you would imagine, patience and perseverance...)
Your other option is to find an approach that is unique to your area and run with that as your specialty. Norm Davis speaks of when he was breaking into the business, he knew he had to have something different to catch the attention of the community, hence the chocolate curls. It is still his signature cake and it broke the mold for him in terms of having to "compete" with what everyone else was doing.
Ms. LaBellaFlor - Maybe Win said it better than I did. But that's exactly what I was trying to say. In no way am I looking for approval to do something illegal. That's the whole point. I won't do it. The people I was referring to don't do the "kits." They actually do carved characters. I just keep thinking if I was a customer, I would rather go to the people who will MAKE me a Batman cake for my kid rather than do a cake with some colors and add the toy on top.
Now IF these people are legal, then my apologies. From everything I've read, here and elsewhere, it is barely possible, if at all. And even then, the effort wouldn't be worth it.
Win - Thank you. 
You're right. DH and I have definitely been working up a list of ideas to help me stand out from the rest. Even the little things help, I think.
I just don't know if the trouble of getting permission would even be beneficial to a small time baker like me. LOL
if you did research on our overrun prisons in the us and figured out how many
people are guilty of murder, you'd think by the HUGE numbers that EVERYONE does
does it, and that EVERYONE gets caught too....but that's not the case!!!!
You have to decide for yourself what kind of a business you're going to run
personally I like to keep everything legal and on the up and up
I think you have two seperate issues and both have similar answers. Chances are if they are doing cakes illegally they either have no clue about the laws (for selling cakes or for copyrighted images) or they don't care. You can try educated them or you can just leave it be.
If you lose an order because someone can't understand why you won't break the law for them, then you really didn't need that order.
It sucks either way, and I get that, but sometimes we have to worry less about what everyone else is doing and focus on ourselves. At the end of the day you have to live with yourself and they have to live with themselves.
As said above, find something that sets you apart from them.
That mixed with the HUGE amount of illegal cake businesses just in my county is really worrying me. And a lot of these people make good money doing it.
I wouldn't worry too much about the illegal bakers. You don't really have any expenses that they don't have...you got extremely lucky that it was so easy for you to get licensed. Your overhead is going to be a lot lower than the bakeries with storefronts too.
About the copyright characters, just tell the parents they can buy a toy to stick on the cake, and you'll decorate it in colors that coordinate with the toy. Then their child will be able to keep the toy as a souvenir of the birthday. If I were able to have a cake business, I would much rather do cakes for adults than for kids...weddings, baby showers, bridal showers, etc...will all bring in more money than doing kids' cakes, because people have more guests at events like that than at a child's birthday. It's about the same amount of work to decorate a big cake as it is to do a smaller one, but with the bigger one you make more money.
You might find that there's a market for doing naughty cakes in your area...it's much easier than you might think, especially if you use fondant, and people are willing to pay a lot for them. Also, probably the other home bakers in your area have kids and it's hard to make naughty cakes when you have kids in the house, so as long as you were comfortable with the idea, it might be something no one around there is doing yet.
You can't compete. You will lose orders because you refuse to do illegal cakes. Its a fact.
Does this mean you can't have a good business if you don't do the illegal characters? No, it just means your moo-lah will have to come from somewhere else.
I won't do copyright stuff unless I get a release (or do it the legal way- Bakery Craft, Decopac etc). I always explain that I am not willing to risk my business over one cake. Most are fine with that. Some are not. Those that aren't, won't be getting their cake from me, and that's OK.
See the post by CarolynLovesCakes on this thread: http://cakecentral.com/cake-decorating-ftopict-609224-.html
I see it all the time in my area and I agree it hurts that so many businesses do it. I do not want to compete with them.
You can learn more on how to get a permission or post your own carachters on your website.
How about if you have a customer who is dying for you to do them a character cake from a character pan that you require them to buy the pan and bring it to you? You then give them the pan with the cake? Just a suggestion.
How about if you have a customer who is dying for you to do them a character cake from a character pan that you require them to buy the pan and bring it to you? You then give them the pan with the cake? Just a suggestion.
Did you sell them the cake? THen you can't do it. If you SELL the character, in any shape or form, that's where the problem comes in.
How about if you have a customer who is dying for you to do them a character cake from a character pan that you require them to buy the pan and bring it to you? You then give them the pan with the cake? Just a suggestion.
The purchaser of the pan can only make the cake for their own personal use.
Other members have posted other scenarios where the customer is not paying for the cake but "something" else.... But when all is said and done, we all know if this could be done legally - there would be no need for such schemes.
HTH
How about if you have a customer who is dying for you to do them a character cake from a character pan that you require them to buy the pan and bring it to you? You then give them the pan with the cake? Just a suggestion.
The pan is marked for home use only. Which means that momma can make a cake for her child or even neighbor can make a cake for the cute little kid next door for free. The issue is when money comes into play. If you take any payment for the cake, then you sold it, and that is against the copyright.
If you take the pan out of the senerio, and you still make a character cake for someone, using a FBCT or Color Flow piece, then you are breaking the law. So it isn't just using the pans for cakes that are sold that is against the law.
Of course we can all sit here and try to figure out ways to get around the law. I've seen where people say what if I chrage for the cake board but the cake is free. No matter what loopholes we may find, if you were standing infront of a judge, chances are they aren't going to work.
Instead of figuring out ways to get around the law, how about figuring out ways to creatively do character related cakes with out breaking the law.
The shop I was working for over the summer only post on their site the cakes with kits on them but when I was there they were making cakes with chocolate transfers of characters on the cakes. They were beautiful works of art but they were still breaking the law. When I asked about that to one of the decorators they said oh it not a big deal. UM yeah it is at least in my eyes it was. It is sad because it is the biggest bakery in the area and this is the way they run their business. OH well.
I am now opening my own shop and that is one of the things that I am a bit concerned about. I have made sure to get the kits and the permission that I need to sell these cakes. I know that it is going to be hard to make mine look different from the others but that is it and that makes us who we are, creative cake decorators.
I'm not saying that I have never made a cake that I didn't copy something/character (I've made Dora, Transformer, Winnie the Pooh....) but they have either been for friends, family or a gift. Now that I am opening the shop I will have to figure out how to make those same cakes with other methods that I will not be copying anything...it's all legal. I would be tooo concerned that I would get that one customer that knows someone that knows someone else that would get me in some kind of trouble 
and then there goes my shop.....I know it sounds dramatic but that is me and with my luck it just might happen. 
Vic
*eye twitches* Oh Godz...Copyright Law. That which stole my life for two years! (i'm backing away from the Copyrighted Characters issue...)
But I will (try to) answer the question about cake designs that famous decoraters like Peters and Weber do.
As for directly copying a cake from Colette or another designer and selling it....tehcnically, yes, it is illegal as their designs would be protected under Copyright Infringement laws for artists and publishers. You would have to obtain written permission from the original designer to replicate the design.
And yet...
To get the full protection of said laws they would have to register a copyright app for each individual cake design. They might do that, but I doubt it.
Even then, I've found in the Cake Decorating world, Imitation is the sincerest form of Flattery, and how often a design is reproduced by other cake artists only enhances the fame of the original designer, and the Wedding cake industry thrives on decorating "trends" set by the famous designers. All the bridal magazines are filled with cake designs which the bride is encouraged to have their local baker reproduce. I would not be surprised if the designers of the cakes in the magazines have to sign away any copyright protections on the images before they are published.
Too Long; Didn't Read Version: Yes, it is, but unless the original designer of the cake design get a burr up their knickers, they do not enforce it.
You're welcome Tamatha. Law is my life and day job. Cakes are my hobby.
Sometimes I think my life would be easier if it was the other way around. The deeper I get into my studies and chosen career path the more I see why lawyers have the rep that they do.
I'm not a lawyer, but I think it's interesting to read about some of the articles that apply to copyrighted or trademarked fabric, and the reselling of items made from that fabric. The fabric has a message in the selvage similar to the Wilton pan "For home use only" message. But from what I've read, the company really has no right to do this. They are putting their product into the stream of commerce, and the "first sale doctrine" says that they can't then regulate what the customer does with it. *You didn't sign a contract or agree to anything when you bought the product.*
Hope I'm paraphrasing clearly. Here's an article that explains more:
http://madisonian.net/2006/10/17/what-can-i-do-with-that-fabric-thing/
Kelleym, that's why copyright law is such a headache. There's so many miniscule things to pick nits over and most of the stuff that's illegal/legal makes NO common sense whatsoever.
Like how you can go to the store and buy a bag of Oreos, dip them in chocolate, and resell them, just as long as you -don't- call them an Oreo. But you -can't- buy a bottle of ketchup and resell it unless the packaging has a label allowing you to do so.
You can't realistically enforce most of the laws on the books regarding copyrights/fair use/ect. because you need specialized Law Degree in order to make sense of them all in the first place, and no court or cop will waste their time on stuff that barely registers as a misdemeanor.
People get so worked up over things being "OMG ILLEGAL!!" (which I admit I am guilty of at times too) but the reality is, the (il)legality only exists on paper and is not applied in the real world. The instances when it happens are so few and far between it's not worth working oneself in a tizzy over.
EDIT: yes, there are -always- exceptions to the rule. I know this. But really, no one would ever own a bakery or do cakes as a hobby if they were worried about breaking a law because every single one of us at some point, licenced or hobbyist, has broken a food service/copyright/some other law. It's impossible NOT to!
Thanks everybody for joining me in my venting. lol. I guess this is just one of those things that sucks, and if you wanna do things the "right way" you just gotta take some things as a loss when going up against those who don't. Oh well. I'll be glad when I get more experience and won't be doing as much kids cakes. lol.
CeeTee, I like your laid back way of thinking. People get so frantic over stuff (including me). Its nice to have someone who's knowledgable of the law around here.
I can't find my info on Disney copyrights at the moment. I looked & looked at one time determined to find a way to legally do the characters. It IS possible just not PLAUSIBLE for most of us. If I can find my printed copy, I'll post it. Will take a while to find though.
There was a list of requirements for being able to obtain a license. First & foremost, your business has to have been in operation for at least 5 years--having just opened that knocked me out immediately. I don't remember the fee requirement but it was substantial. I don't remember all the other requirements, but there were a few.
You also had to obtain a license for EACH character you wished to use. If you have a license for Mickey, you can't do Minnie without obtaining a license for Minnie etc. There were also detailed rules on how you could & could not use the characters to ensure that you don't damage the commercial value of the character. So it's definitely NOT for the majority of us.
Personally, I think all of us are done a HUGE disfavor by the Food Network & their challenges. They could help out tremendously by announcing that the character cakes were being done by special permission from Disney, Pixar or whoever instead of allowing the average person to think anybody can make a cake with those characters. MHO.
Catherine
I enjoyed reading this thread and in particular the comments by CeeTee! Thanks!
I know this is a little bit off-topic, but I just have to ask anyway (before I forget again...)
Does anyone know if it's legal to make copies of purses? I know everyone wants a coach purse. I had a friend who wanted one for his girlfriend, but since I did not charge I would not matter. But are purses also protected with copyright?
I'm not a lawyer, but I think it's interesting to read about some of the articles that apply to copyrighted or trademarked fabric, and the reselling of items made from that fabric. The fabric has a message in the selvage similar to the Wilton pan "For home use only" message. But from what I've read, the company really has no right to do this. They are putting their product into the stream of commerce, and the "first sale doctrine" says that they can't then regulate what the customer does with it. *You didn't sign a contract or agree to anything when you bought the product.*
Hope I'm paraphrasing clearly. Here's an article that explains more:
http://madisonian.net/2006/10/17/what-can-i-do-with-that-fabric-thing/
That's really interesting! I've always wondered about this and how people sell their goods using "copyrighted fabrics". Good to know, good to know.
I know this is a little bit off-topic, but I just have to ask anyway (before I forget again...)
Does anyone know if it's legal to make copies of purses? I know everyone wants a coach purse. I had a friend who wanted one for his girlfriend, but since I did not charge I would not matter. But are purses also protected with copyright?
The logos are copyrighted. There was some story in the news about a purse company (I think it might have been Louis Vuitton, I'm not sure) going after a woman in Ireland for making purse cakes. I don't know the details, but the logos are defintitey copyrighted.
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