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Help,COPYRIGHT!! What to do when contacted by major company? - Page 2  

post #16 of 68
In order for one big company to protect itself from infrigement by another big company, they have to be able to prove in court that they have consistently and repeatably defended their protected property from infringement. So routine searches for infringement are not only common but required as part of their vigilence. When they encounter infringement, they must have a discoverable record that they followed up and dealt with the infringement. Otherwise, their case against another "big guy" would not be as strong in court, if they ever need to go there. They're not out there looking for a fight with a small, inconsequential player.... but it is one necessary part of protecting their property - and an expensive on-going effort for them.
We make a living by what we get, but we make a life by what we give. Winston Churchill
We make a living by what we get, but we make a life by what we give. Winston Churchill
post #17 of 68
Quote:
Originally Posted by aundron


I guess I should only do cakes where I actually buy the characters and place them on the cake.



That still violates copyright from what I understand. Unless it's the customer that purchases and places them on. Using the pictures of that cake to promote your business also falls into the "no-no" category, again from what I understand....
Live well, love long, play hard and laugh... well, long and hard.
Live well, love long, play hard and laugh... well, long and hard.
post #18 of 68
Quote:
Originally Posted by kaat

Quote:
Originally Posted by aundron


I guess I should only do cakes where I actually buy the characters and place them on the cake.



That still violates copyright from what I understand. Unless it's the customer that purchases and places them on. Using the pictures of that cake to promote your business also falls into the "no-no" category, again from what I understand....


As long as the cake toppers are licensed (and not third-party knockoffs) you are not infringing by purchasing the toppers and putting them on the cake yourself, even if you sell the cake. US copyright law includes the "doctrine of first sale", which specifically allows someone to resell a legally-made copy of a copyrighted work without permission.

There is also no problem with using the pictures to promote your business, again as long as the toppers are licensed.
post #19 of 68
This article is very interesting and pertains specifically to copyright/trademark and baking.

http://happysugarbakingland.typepad.com/happy-sugar-baking-land/2011/08/merci-beaucoup-shop-talk-cakes-and-copyrights.html
post #20 of 68
Sorry this happened to you, recently on another post this issue was discussed, I advised about the copyright issue, I was totally ignored, Nonetheless, I would have a lawyer look at the paper before you sign, I would do it quickly. These companies actually pay employees to search the internet for copyright issues. Hope this is resolved quickly for you.
post #21 of 68
Quote:
Originally Posted by Vista

This article is very interesting and pertains specifically to copyright/trademark and baking.

http://happysugarbakingland.typepad.com/happy-sugar-baking-land/2011/08/merci-beaucoup-shop-talk-cakes-and-copyrights.html



Excellant post...........Thanks thumbs_up.gif
Major life events require sugar.
Major life events require sugar.
post #22 of 68
Interesting about Jack Daniels...I called them and their legal dept said that they didn't give permission to use the logos per se, but that they didn't mind if people used it if it was a cake for a fan. I guess it depends on who you talk to and how you use the design.
post #23 of 68
If you study the law, copyright/trademark infringement does not depend on the actual sale. Free cakes are also an infringement. The case of selling and the amount of times it was reproduced is a factor in the amount of the judgement. In other words, they can get a judgement against you for a free cake, but the amount may be higher in a case of selling or repeated copies.

I'm glad to see that members are sharing their experiences with infringement. Maybe people will start to listen.
post #24 of 68
Thread Starter 
Quote:
Originally Posted by jason_kraft

Quote:
Originally Posted by kaat

Quote:
Originally Posted by aundron


I guess I should only do cakes where I actually buy the characters and place them on the cake.



That still violates copyright from what I understand. Unless it's the customer that purchases and places them on. Using the pictures of that cake to promote your business also falls into the "no-no" category, again from what I understand....


As long as the cake toppers are licensed (and not third-party knockoffs) you are not infringing by purchasing the toppers and putting them on the cake yourself, even if you sell the cake. US copyright law includes the "doctrine of first sale", which specifically allows someone to resell a legally-made copy of a copyrighted work without permission.

There is also no problem with using the pictures to promote your business, again as long as the toppers are licensed.



Okay, I figured that was the case, I mean, if it wasn't, what would be the purpose of cake supply stores or bakeries even, selling character cake toppers.

This has been a nerve wrecking experience, but, a lesson learned.

I wonder if they have gone after all the folks with their logo on cakes because there are a lot of them out there!!
I dream about cakes and stilettos!!
I dream about cakes and stilettos!!
post #25 of 68
Quote:
Originally Posted by Vista

This article is very interesting and pertains specifically to copyright/trademark and baking.

http://happysugarbakingland.typepad.com/happy-sugar-baking-land/2011/08/merci-beaucoup-shop-talk-cakes-and-copyrights.html



A terrible article. The comparison to fan art is problematic at best. Fan art is not protected, it is a violation of copyright. That no one cares does not mean it is protected. That fan art is not targeted most likely is due to copyright holders not wanting to anger fans. The same could not be said of decorators. Going after a decorator is not the same as shutting down conventions. In addition a decorator would be hard pressed to say their cakes, which in many cases are based on client requests, represent their fandom.

As for it being a derivative work--that is irrelevant as copyright holders hold the rights to prepare derivative work. Only they can authorize someone to prepare a derivative work.

Which leaves fair use -- good luck with that one. Fair use is coming under increasing scrutiny. Institutions of higher education are dealing with challenges to course packs, material on reserve etc--and that is a recognized exception. Any decorator would be hard pressed to prove their cakes were for criticism, comment, news reporting, teaching, scholarship, or research which are the recognized exceptions to under fair use.

Of course there is parody again good luck. It is not hard to tell that most cakes that use copyrighted images would not qualify as parody. You cannot simply make Hello Kitty and then say it is a parody. A cake would have to meet particular identifiable standards for it to qualify as parody. It is not parody because the decorator says it is.
post #26 of 68
Quote:
Originally Posted by gatorcake

Quote:
Originally Posted by Vista

This article is very interesting and pertains specifically to copyright/trademark and baking.

http://happysugarbakingland.typepad.com/happy-sugar-baking-land/2011/08/merci-beaucoup-shop-talk-cakes-and-copyrights.html



A terrible article. The comparison to fan art is problematic at best. Fan art is not protected, it is a violation of copyright. That no one cares does not mean it is protected. That fan art is not targeted most likely is due to copyright holders not wanting to anger fans. The same could not be said of decorators. Going after a decorator is not the same as shutting down conventions. In addition a decorator would be hard pressed to say their cakes, which in many cases are based on client requests, represent their fandom.

As for it being a derivative work--that is irrelevant as copyright holders hold the rights to prepare derivative work. Only they can authorize someone to prepare a derivative work.

Which leaves fair use -- good luck with that one. Fair use is coming under increasing scrutiny. Institutions of higher education are dealing with challenges to course packs, material on reserve etc--and that is a recognized exception. Any decorator would be hard pressed to prove their cakes were for criticism, comment, news reporting, teaching, scholarship, or research which are the recognized exceptions to under fair use.

Of course there is parody again good luck. It is not hard to tell that most cakes that use copyrighted images would not qualify as parody. You cannot simply make Hello Kitty and then say it is a parody. A cake would have to meet particular identifiable standards for it to qualify as parody. It is not parody because the decorator says it is.


I thought she raised some valid points; perhaps you could try being more liberal.. icon_lol.gif .....just a thought. I certainly didn't get this out of the article. Perhaps she was just arguing some of the other sides of this hot topic?
Major life events require sugar.
Major life events require sugar.
post #27 of 68
Just wanted to share -- in case anyone is interested in Nintendo's official policy. I recently wrote them to inquire about permission to use Mario on a cake. This is their reply:

Thank you for writing.  I appreciate your interest in Nintendo and all our video game products.  To us, it represents a great sign of success and recognition of the Nintendo brand.

We are grateful for all the requests we receive for permission to use Nintendo properties; however, we receive thousands of requests and do not have adequate staffing to review them all.  Therefore, our general policy is to decline all such requests, no exceptions.  I realize this isnt what you wanted to hear and thank you for understanding.

Although we are unable to grant permission, use of Nintendo properties without our formal permission may still be allowed depending on the circumstances.  You are encouraged to seek your own legal counsel if you have any questions about whether your particular proposed use is permitted without Nintendo's authorization.  This is not a comment on whether we believe your particular proposed use is permissibleNintendo cannot provide legal advice.
post #28 of 68
I also think the article raises some good points, but those points could have been better organized and outlined more succinctly. For example, the issues of fan art and parody probably should have been covered in a few sentences instead of several paragraphs.
post #29 of 68
Quote:
Originally Posted by jason_kraft

I also think the article raises some good points, but those points could have been better organized and outlined more succinctly. For example, the issues of fan art and parody probably should have been covered in a few sentences instead of several paragraphs.



Well, you know what they say about hindsight.....

I would also like to point out: If you are running a legal bakery, be it a store front or home front and you feel you ARE legal, then why get on a forum and be so shocked and dismayed over these situations? It should be a non-issue.
Major life events require sugar.
Major life events require sugar.
post #30 of 68
Quote:
Originally Posted by enchantedcreations


I thought she raised some valid points; perhaps you could try being more liberal.. icon_lol.gif .....just a thought.



Maybe you could actually address the point rather than attempting to address my criticisms by making it about me thumbsdown.gif. But hey why answer the objections when it so much easier to mock the author.

What in particular do you find useful in this article? The analogy to fan art is pointless. That companies do not go after those who produce fan fiction does not mean the fan fiction is not a violation of copyright. Absence of interest does not prove there is no infringement. So claiming decorating is like fan art is irrelevant. It very well might be. That is of no consolation to decorators who will find themselves the target of a cease and desist letter.

The discussion of derivative work is also irrelevant. Yes a cake could be seen as a derivative work. And? Does the decorator hold the copyright? No, so it is a violation of copyright as the owner of the copyright owns the rights to derivative work as well. So once again what is the point? Claiming a cake as derivative is not an exception to copyright. Unless you try fair use.

Thus, the fair use claim. Again what is the point? Fair use does not cover any work, it covers work under limited circumstances. At best a decorator can use parody under fair use. Too bad most cakes do not qualify as parody. Your ethics I guess if you make a cake for someone and then attempt to claim it is a parody in order to avoid copyright infringement. There are standards for parody and few of the cakes published on this site meet those standards.

So what exactly are the valid points that are raised?
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