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Cpoyright/Trademark Infringers Beware

post #1 of 52
Thread Starter 
Remember all those CC members who constantly tell me to mind my own business and that I'm not the cake police?

Well, guess what... it turns out that I have been warning people to follow the law for good reason.

For those of you who enjoy making cakes of protected property, please read the attached article:

http://www.bloomberg.com/news/2012-05-21/music-downloading-damages-left-intact-by-u-s-high-court.html

The courts handed down a fine to an individual who not only did not sell the property, but also had only thirty individual violations, much less than some of the portfolios on CC. This case involved a man who illegally downloaded 30 songs and shared them.

Evidently, the fine is from $750.00 to $150,000 per violation. He was charged $22,000 for each violation, grand totalling $675,000. Several courts have upheld the amount.

How many times have I quoted that the Feds put the number of violations at 10 to convert the charge into a federal criminal charge? It had a purpose.

If I were a decorator with published protected material, I would take it down now. Even though many of the photos will be cached, I would think that a voluntary cease and desist would help.

While you are at it, be sure to check your kids' iPod accounts for music downloaded by other than proper channels.

When members like me, Jason, and others warn you all about this, we aren't trying to be disagreeable, but professional. For businesses operating outside the law, beware that the internet will not be on your side. It has allowed us to share, find answers to everything, and grow our businesses virtually (pun) for free. But with that comes a trail right back to you for copyright/trademark infringements, evidence of selling for the IRS and state tax depts (example: I sold this cake for $$ in a post on CC). The IRS only needs evidence of one item to search your books and household income from "the day you were born" or to asses you with taxes and penalties for what you may have sold.

Again, not an "I told you so", but a message that will hopefully reinforce two things:

1) Please make sure you fully understand the penalties for working outside the law.

2) If you choose to work outside the law, do not publish it on the web.
post #2 of 52
I don't believe there are enough extra people to take the time to go after all the cake copyright infringers that are out there now.

Just for fun the other day I Googled Hello Kitty cakes. Wow! ALL those cakes were made for free or given to family members? Riiiiiiiiggght. Even Cake Lava in Hawaii makes EXPENSIVE Hello Kitty cakes, but I suppose it's possible someone of that caliber may have permission from the copyright owner.
post #3 of 52
Thread Starter 
For $150,000 a pop, there can be plenty. This case will lead to entrepreneurs who will open up law firms for just such cases. They are already there, but with this publicity and the sinking incomes of lawyers in this recession, there will be plenty of enterprising people to make this happen.

For the internet, the evidence is online with the infringer's address. A simple and cheap prosceution for the plaintiffs.
post #4 of 52
As always, it's best to consult a lawyer rather than a cake forum for legal advice. Copyright infringement is bad, talk to a lawyer about it. Here is an article my attorney wrote about it at my request.

http://www.klonglaw.com/blog/selling-copyrighted-character-cakes-should-you-do-it
post #5 of 52
Thread Starter 
I wasn't posting legal advice. It was an article that reiterated what many of us have been posting for years. This happens to be concrete evidence of a case tried and won with no exchange of money.

Copyright and trademark laws are actually very easy to interpret by just about anyone and there are numerous sites that explain it in layman's terms. Just google it and an abundance of reputable sites will give great information.

CC members still have a choice. I just made a suggestion.
post #6 of 52
Quote:
Originally Posted by scp1127



Copyright and trademark laws are actually very easy to interpret by just about anyone and there are numerous sites that explain it in layman's terms. Just google it and an abundance of reputable sites will give great information.


Having been personally involved in a trademark lawsuit, I must disagree, and I find that assumption rather unfounded. There's a reason we have lawyers and courts and judges, because "just about anyone" can see two sides of a story. Getting your legal advice from The Internets is like being sick and entering your symptoms into WebMD. You might get close to the truth, but you also might diagnose yourself with a brain tumor when you have a common cold.
post #7 of 52
Quote:
Originally Posted by scp1127

For $150,000 a pop, there can be plenty. This case will lead to entrepreneurs who will open up law firms for just such cases. They are already there, but with this publicity and the sinking incomes of lawyers in this recession, there will be plenty of enterprising people to make this happen.

For the internet, the evidence is online with the infringer's address. A simple and cheap prosceution for the plaintiffs.



You have a good point, you really do. And then you engage in this scare mongering. First there are conditions for the $150,000 limit it and one of those pertains to reasonableness of the fine imposed. Second the copyright holder has to file suit. Corporations already have legal representation, your description of attorneys hanging a shingle so they can pursue copyright infringements is just plain silly. Does this mean that copyright holder will not attempt to protect their interests--of course not.

Sorry we are not going to see copyright "ambulance chasing." It does not work that way as the vast majority of the kinds of works that are replicated in designs already have legal representation. There is simply no reason to be hyperbolic it does nothing more than trivialize the point.
post #8 of 52
Thread Starter 
If you all are somehow insinuating that whether or not to make a John Deere tractor out of gumpaste is a highly subjective case of copyright/trademark infringement, sorry, it's a piece of a cake.

Yes, of course, there are highly subjective cases, but Hello Kitty, Spongebob, and Elmo cakes certainly do not fall into that category. So the simplistic explanations on the web will be more than sufficient in determining if the Thomas The Train cake you want to sell falls into the category of infringement. Give me a break.

It is funny and I always anticipate the few who always try to attack anything I say. I referred to this in a thread the other day. And again, a point I was trying to make in the best interest of the cake community disintigrates into critiquing my message. Same people, same story, broken record.

When your only point is to pick at what I tried to make as elementary as possible, I really don't care. The Feds have an abundance of task forces out there busting internet infringers. This is newer. The music industry has had attorneys working on this since the day the songs began to appear on the web. If there is money in it, the lawyers will come. It only gets easier and easier to prosecute once the prescedents are set and the computer programs for detection are perfected. The internet is still relatively new. But enforcement of those laws will eventually become common on the web.

Again, my point was to share the article and give people the opportunity to decide where they want to stand on the issue of protected property given the concrete information.

Yes, those chosen few will always look for and chime in on my posts and try to tear down the message. But I hope my general message is received in the manner that I intended... maybe a few people will reconsider the practice of replicating protected property and avoid a similar situation. This man in the article doesn't even have a job, but as soon as he does, the courts are going to attach his wages and will expect full payment.
post #9 of 52
On Facebook, there is a fan page by the creators of Dora. Guess what they post? Pictures of people's Dora cakes...and some were DEFINITELY professional looking...as in sold to the customer, (I'm just guessing there were no trademark rights bought...)
I just find it interesting! I don't do character cakes.

https://www.facebook.com/dora
post #10 of 52
Quote:
Originally Posted by gatorcake

First there are conditions for the $150,000 limit it and one of those pertains to reasonableness of the fine imposed.


The case linked to in the OP is a little unusual...based on the article it seems like there were thousands of violations, but only 30 of which pertained to the plaintiff's IP. The jury seemed to set the penalty for each of those 30 songs as a punitive measure applying to the aggregate total of violations.

Frankly I'm surprised SCOTUS upheld the award as it does seem excessive, but now that they have weighed in you will probably see more infringement suits (the vast majority of which will be settled out of court).

The basics of IP law are relatively straightforward, so there's no harm in learning more about it yourself. But as posted above, the specifics of cases can be complex so if you are a party to a legal communication or lawsuit you'll want to talk to your liability insurance provider and get an attorney.

Quote:
Quote:

Corporations already have legal representation, your description of attorneys hanging a shingle so they can pursue copyright infringements is just plain silly.


I don't see what's so silly about it. There are already many lawyers specializing in copyright law (see the link below to find a list in your area) so it doesn't seem farfetched that they would want a piece of infringement settlements, especially when there is so much low-hanging fruit.

http://lawyers.findlaw.com/lawyer/practice/Intellectual-Property-Law

Looking at it from a risk vs. reward perspective, an IP owner engaging an outside search firm to take care of this could be quite profitable as long as care is taken not to damage the IP owner's reputation (as the music industry did when they went after little kids for illegal downloading). This would also free up in-house legal teams for companies that have a lot of value tied up in IP to focus on bigger issues like China.

Here is one example of a company that already does this:
http://www.cyberalert.com/app_intellectual_property_infringement.html
post #11 of 52
Quote:
Originally Posted by scp1127

This man in the article doesn't even have a job, but as soon as he does, the courts are going to attach his wages and will expect full payment.


The defendant in the article will probably just file BK (bankruptcy), the hit to his credit is probably preferable to owing $675K.

If a judgment like this were to hit someone with an LLC and liability insurance did not pay, they might be able to just have the LLC file BK (assuming no personally-responsible debt) with limited impact to their own credit and start a new LLC. Of course a lawyer would be a must in this type of situation.

If an uninsured sole prop were sued there would be no protection (regardless of whether they were legal from the health dept perspective), so the defendant would have to either hire a lawyer with out of pocket funds, accept the settlement and pay (which could involve losing their home depending on the size of the settlement), or file BK (which may or may not involve losing their home).
post #12 of 52
Scp1127 I just have a quick question to ask you. Did you just make an Old Bay container for your stew cake? I'm sure you got permission to replicate it, correct?
Kathy
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Kathy
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post #13 of 52
Quote:
Originally Posted by Norasmom

On Facebook, there is a fan page by the creators of Dora. Guess what they post? Pictures of people's Dora cakes...and some were DEFINITELY professional looking...as in sold to the customer, (I'm just guessing there were no trademark rights bought...)
I just find it interesting! I don't do character cakes.

https://www.facebook.com/dora


In large companies like Viacom (which owns Nickelodeon and the rights to Dora) you often don't have very good communication between divisions. It's possible that the marketing group that runs the official Dora FB page linked above got permission from legal, but it's also possible that Viacom's legal team would not be happy at all with the tacit permission granted by adding a potentially infringing cake to the official photo gallery.
post #14 of 52
Quote:
Originally Posted by ladyellam

Scp1127 I just have a quick question to ask you. Did you just make an Old Bay container for your stew cake? I'm sure you got permission to replicate it, correct?


Right, because if she didn't get permission, that means all her points are automatically invalid. icon_rolleyes.gif
post #15 of 52
Quote:
Originally Posted by ladyellam

Scp1127 I just have a quick question to ask you. Did you just make an Old Bay container for your stew cake? I'm sure you got permission to replicate it, correct?




1. Its not her cake.
2. Yes, the decorator in question DID get permission.

Life's too short to make cake pops.
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www.sweetperfection.com.au

www.sweetperfectioncakes.blogspot.com.au/
www.facebook.com/sweetperfectioncakes (come visit sometime!)

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Life's too short to make cake pops.
___________________________________
www.sweetperfection.com.au

www.sweetperfectioncakes.blogspot.com.au/
www.facebook.com/sweetperfectioncakes (come visit sometime!)

Reply
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