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Is this treading too lightly??? Copyright/trademark question

post #1 of 24
Thread Starter 
I do my best to avoid copyright/trademark issues with my customers. If I question it, I do not do it. However, I wanted to get some business opinions on this particular cake since this is for family.

Image

This is a cake my niece wants for her birthday. Not very original with tons of the same cake being done all over google, but she is only seven and has her heart set on it. I know purchasing the Barbie should make it okay, but the wings are a very, very loose replication of the wings of Barbie Mariposa.

Here is what she looks like in the movie:
Image

Here is the doll:
Image

So my question for those that try to abide by copyright/trademark limitations, would you or would you not? If not, what changes would you make?

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There are times when I think I can help. Other times I think, given an already shallow gene pool, I am doing more for humanity by just letting go...

 

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post #2 of 24
No infringement there.
That's a stylized butterfly wing and looks nothing like the Barbie wings.

But, truth is, the Barbie wings are just generic Monarch-type butterfly wing patterns done in pinks & purples.

Don't think anyone can copyright a pattern found so commonly in nature.

JMHO
Rae
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I love you, but your emergency is not my crisis!

They say that a little knowledge is a dangerous thing, but it is not one half so bad as a lot of ignorance.--Terry Pratchett (b.194
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post #3 of 24
I see no problem either - especially as it is for family and NOT being sold.
post #4 of 24
Thread Starter 
Thanks Rae and Kakeladi!

Rae, I was thinking the same thing. I was just having a moment of second guessing. You can never be too careful about these things.

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There are times when I think I can help. Other times I think, given an already shallow gene pool, I am doing more for humanity by just letting go...

 

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post #5 of 24
Just a reminder...

Making the cake for family and not being sold have nothing to do with copyright infringement. It is still illegal. The courts do look at compensation to determine the amount of the settlement.

At first glance, it looks like an intentional duplicate to me and I don't even know the movie. No matter how generic, you cannot copy a protected item. The cake and the picture from the movie are obviously the same down to the design of the skirt.
post #6 of 24
Quote:
Originally Posted by scp1127

At first glance, it looks like an intentional duplicate to me and I don't even know the movie. No matter how generic, you cannot copy a protected item.


Copyright only protects original creative works, if a work is sufficiently generic it is not copyrightable. To me this looks like generic purple butterfly wings on a doll, but of course the only opinion that really matters is the copyright owner's.

Agreed that whether the cake is sold or not makes no difference, unless the copyright owner is willing to grant permission for non-commercial use only.
post #7 of 24
Thread Starter 
I understand that non-commercial use has nothing to do with copyright/trademark infringement. I only mentioned it to explain why I am actually delving deeper into this. I would rather find the answers researching this cake for a family member than stringing a customer along while I take time to research.

Can Mattel copyright Monarch butterfly wings? I will not be recreating Barbie. I would only be creating the butterfly wings. Does placing Barbie on top of butterfly wings change the way it is viewed by copyright laws because it then creates Barbie Mariposa?

I just found Mattel's contact information. I will submit this for non-commercial and commercial use and see what comes back.

There are times when I think I can help. Other times I think, given an already shallow gene pool, I am doing more for humanity by just letting go...

 

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There are times when I think I can help. Other times I think, given an already shallow gene pool, I am doing more for humanity by just letting go...

 

www.brendabakes.com

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post #8 of 24
Quote:
Originally Posted by brenda549

I would rather find the answers researching this cake for a family member than stringing a customer along while I take time to research.


One way of handling this situation with paying customers is requiring the customer to provide written permission from the copyright owner, this way the burden is on the customer and they get mad at the copyright owner instead of you if they say no.

Quote:
Quote:

Can Mattel copyright Monarch butterfly wings? I will not be recreating Barbie. I would only be creating the butterfly wings. Does placing Barbie on top of butterfly wings change the way it is viewed by copyright laws because it then creates Barbie Mariposa?


The way I see it, if you traced the exact design of the wings from the doll or a frame in the movie, it would be more likely to be considered infringing, but the cake pictured is probably different enough.
post #9 of 24
To me, it looked different enough from the wings on Barbie Mariposa.
post #10 of 24
This is a gift for your niece.
Make the cake and don't worry about it.
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post #11 of 24
The wings look generic enough to me to be OK. I'd do it and I'm pretty cautious about this stuff.

I am not a copyright attorney.
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post #12 of 24
Well, then, I guess Mattel must have infringed on the skirt of tinkerbell because I have seen that skirt on several brands, not just Barbie Mariposa. And I think I have seen some butterflies very similar to your cake, also.... save for the hearts....JK. I think you would be safe, I am not a lawyer, though. icon_smile.gif
post #13 of 24
They don't look alike to me at all. Just same colors, and you can't copyright a Monarch's color scheme.

Also, if I was worried about copyright infringement, I would not be posting something on a public board that you may not be able to erase. Once you write something like "I know purchasing the Barbie should make it okay, but the wings are a very, very loose replication of the wings of Barbie Mariposa", it's out there forever and probably can be used against you.
post #14 of 24
Quote:
Originally Posted by vtcake

They don't look alike to me at all. Just same colors, and you can't copyright a Monarch's color scheme.

Also, if I was worried about copyright infringement, I would not be posting something on a public board that you may not be able to erase. Once you write something like "I know purchasing the Barbie should make it okay, but the wings are a very, very loose replication of the wings of Barbie Mariposa", it's out there forever and probably can be used against you.



Oh brother. Way to take it to the extreme. Perhaps all butterfly wings need to be copyrighted! Has anyone checked with the Monarch's attorney?
Make your cake. It's very generic and I doubt seriously the butterfly police will be watching this board.

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post #15 of 24
Quote:
Originally Posted by carmijok

Quote:
Originally Posted by vtcake

They don't look alike to me at all. Just same colors, and you can't copyright a Monarch's color scheme.

Also, if I was worried about copyright infringement, I would not be posting something on a public board that you may not be able to erase. Once you write something like "I know purchasing the Barbie should make it okay, but the wings are a very, very loose replication of the wings of Barbie Mariposa", it's out there forever and probably can be used against you.



Oh brother. Way to take it to the extreme. Perhaps all butterfly wings need to be copyrighted! Has anyone checked with the Monarch's attorney?
Make your cake. It's very generic and I doubt seriously the butterfly police will be watching this board.



If your 'oh brother' was to me, I don't get it. I certainly don't think she will get into trouble for copying butterfly wings. What I am saying is if I had (and I said I as in ME) a copyright question, I wouldn't put it out on a public forum where my words could be used against me. And the remark 'you can't copyright a Monarch's color scheme' wasn't meant to refer to the OP as 'you'. I meant "NO ONE" can copyright a Monarch's color scheme, therefore the OP should do what she wants and feel safe.
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