Edible images - Page 3

First of all, an assertion is a statement made as truth with little to know proof or evidence. I didn't proper site copyright law, but that was the basis for fact.

I can purchase a licensed bumper sticker from an authorized dealer. I can then put it on my car. It would be illegal for me to take tha same bumper sticker & make changes to it or put it onto a different background or place it on a pillow & resell it as a different product. That would be copyright infringement.

The company that produces Deco-PAC specifically markets to bakeries for resell. They include, with each set, specifics as to how the PAC can be used.

I have not seen any edible images authorized for resell. That does not mean it doesn't exist. I have seen lots of etsy shops that sell them. They are not authorized and therefore illegal.

If you are modifying and reselling the original licensed bumper sticker, no permission is required and it would not be infringement. If you took a digital picture of the bumper sticker, made some changes to it, then printed it out (or simply made a copy of the original) you would need permission to resell or transfer it, since you would be working with a copy and duplication rights are not protected by the first sale doctrine.

Well, I will have to go back & reread copyright law. I will admit it has been a little over a year ago. I seem to recall that manipulating the material which is protected & selling without authorization is illegal. It's possible I am wrong.

Now I gotta go re-read, dangit.

If you are wrong & I reread for nothing I will curse your pipin bag, Jason!

As a start, this is the definition of copyright infringement as sited by the US copyright office:

 

What is copyright infringement?
As a general matter, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner. 

 

this is a link to my source http://http://www.copyright.gov/help/faq/faq-definitions.html

 

btw, derivative work is one of the key words of focus in my argument.  Definition:  An investment that derives its value from another more fundamental investment (in this case the copyrighted material).

 

I can legally resale the bumper sticker.  Once I modify or manipulate it, it becomes a unique item and infringes upon the copyright UNLESS i am an authorized distributor of the new product.  

 

Furthermore, the section of the code specifically states:  Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

If ever Disney or any other company comes out with edible images authorized for distribution, we will all be very happy.  I hate the plastic Deco-pac stuff.  I really do.  I also think it is a huge oversight of Disney to not offer some alternative for bakers.  Don't they know kids want the cakes!  It would be very profitable for them.

 

I am very guilty of copyright infringment.  Ashamed, but admit it openly.  Check my gallery.  I have unlawfully reproduced Bud Light, Crown Royal, Dr. Seuss (although that was for my own son), & Barbie.  In each and every case, I first contacted the company requesting permission.  I would gladly have paid for use of the copyright.  I have been granted permission by both University of South Carolina & Clemson.  I have to contact them each time & submit a sketch for approval as well as promise to use exact colors etc.

 

I really do wish companies would recognize the need & offer a solution.

It looks like you are correct, the case below involves someone buying a book, cutting the pages out, and selling the individual pages as framed art. This was found not to be protected by the first sale doctrine since it was a derivative work, as you said.

http://www.tabberone.com/Trademarks/Articles/WhatIsADerivativeWork.shtml

The next question is at what point a work becomes a derivative work...the change must be significant enough and original enough to warrant the creation of a new copyrightable work. It was found that taking original art and mounting it on ceramic was not enough to become a derivative work and therefore the first sale doctrine would allow the resale without permission.

http://en.wikipedia.org/wiki/Derivative_work#When_does_derivative-work_liability_apply.3F

Jason, I like you.

Still cursing your piping bag for making me reread!

You make excellent points. Thankfully, my talent is confections not the law. Ill leave that to the pros. I think there is a case to make in all directions. (Yes, I am ambivalent).

I still say this is a wonderful opportunity for companies to help our industry as well as meet the needs & wants of fans & clients.

Please note once again that I am not an attorney, and neither do I play one on television, and that nothing I say here should be construed as "legal advice."

 

Really, intellectual property infringement is not confined to edible printing, nor to copyright: assume your skills with a piping bag far exceed my own, that you can draw pictures with a piping bag and BC that look like they were drawn with pen and ink. Now suppose that instead of edible printing, you pipe Mickey Mouse onto a cake, in a situation that has never appeared in any licensed Disney product (say, plugging Mickey, Minnie, Goofy, and Donald into Edward Hopper's masterpiece of 20th century American painting, Nighthawks. Certainly plenty of artists have done variations on that iconic image, varying from Gottfried Helnwein's Boulevard of Broken Dreams, to a Christmas card with Santa and a few reindeer stopping for coffee, but I don't think anybody's ever done a Disney version) So long as the characters were recognizable, anything about your opus that would make it more difficult for Disney to get you for copyright infringement would also make it easier for them to get you for trademark misuse.

 

 

As to the matter of a customer-provided, customer-taken photograph of his or her kid with a Disney character, taken in a Disney theme park, well, you have a matter of intention, the matter of actual harm to the owner of the copyright and/or trademark, and of what the actual intellectual property is. Simply put, Mickey Mouse is a Toon. So is Bugs Bunny; so are Beetle Bailey, Smurfette, Edda Burber (from Brooke McEldowney's 9 Chickweed Lane), and Candy Moatmonster (from Bill Holbrook's On the Fastrack). They are all drawn cartoon characters, from either animated cartoons, or comic strips, or both. When you photograph your child with Mickey, at Disneyland, you're not actually photographing Mickey Mouse; you're photographing a Disney cast member in a Mickey Mouse suit (at least as of the first time I took the Backstage Magic tour at WDW, the officially approved technical term was to say the cast member was "assisting in the portrayal of Mickey Mouse"). And if you're taking pictures of your kid with Mickey, there's no real intent to harm Disney, or to profit wrongfully from their property, and (given as how no stock agency would touch such a picture with a ten-foot-pole) no actual potential to do either. Moreover, Disney management has always tolerated, and even encouraged guests to take pictures in most onstage areas, and tolerates guests posting their own Disneyland pictures on web sites. I would argue that in a "kid with Mickey" picture, the kid is the primary subject, and the character merely establishes place and circumstances, and the picture was taken in a place that was open to the public, and did not restrict non-commercial photography and that in printing the customer's photograph onto edible media, and mounting it on a cake, you are no more guilty of infringement than a camera shop would be for delivering the picture on T-shirt or a coffee cup.

 

Still, even as an amateur, I've been sticking with images where my rights are entirely clear: the speed limit sign on my parents' 55th anniversary cake was either PD, or it was CC or GPDL with "remix." The Leland Award image, and the International Printing Museum logo, were both available for my use because I was acting in my official capacity as a docent of that museum. The Wikimedia Commons images of Squad 51 and Engine 51 I've slated for my 55th birthday cake were both placed in the PD by the photographer, and any additional images going on the cake will be entirely my own work. And in the 10-minute DVD I recently finished  putting together, of the Space Shuttle Endeavour's arrival in Los Angeles, was made from my own photographs, my own 3-minute video, a dozen or so official NASA photographs (PD by definition), and several photographs from Wikimedia Commons and Flickr, all of which were CC with remix, and everything not my own was meticulously credited.

Here's a little different thought on using edible images, whether purchased or printed at home.  Most usage is for cakes or candy.  When I purchase a themed character such as Sponge Bob, Mickey Mouse, or even a Hollywood Star to use on a birthday cake at home, I feel I am advertising for that particular character and they should be happy to get the extra recognition without paying for it.  For example at my 5-year old's birthday we had a Disney Princess edible on the cake icing surrounded by small plastic princess cake toppers.  Three of the 7 girls at the party asked their mothers to have similar decorations at their next birthday.  Two of them took pictures of the cake before it was cut.  I know the plastic princesses are licensed and sold at a higher price versus a generic princess to give Disney its cut of the "pie".

 

Bottom line here is that the copyright laws were written before edible imaging came into being.  Perhaps those laws should simply not apply when images are used as descibed as above.  I know this will generate replies pro and con.  I believe it is worthy of more discussion.

I also think it is worthy to discuss that a cake is not a permanent fixture, such as the lamps with the licensed character fabric glued to them, at the flea market. Yes, it is their licensed image, or replica but it is going to be eaten! All gone.

Unless someone takes a picture of the cake and posts it online with an easily searchable description of the copyrighted character.

More to the point, the purpose of a copyright is to (1) allow the owner to profit from the opus, (2) prevent unauthorized persons from profiting from it, and (3) prevent (like a trademark registration) unauthorized persons from using the opus in a way that either damages the owner's ability to profit from it, or defames the reputation of the owner, or confuses (or harms) consumers.

 

Consider, if you will, this scenario: you've painstakingly created a completely novel piece of art, and the world is beating a path to your doorstep, in order to not only buy cakes with variations on that image, but to license that image for T-shirts, posters, coffee mugs, and so forth.

 

How would you feel if somebody you don't know from a hole in the ground were to start selling unauthorized items bearing your artwork?

No one is likely to sell images of it or put it on their wall as art. It is just a picture of a cake.

You also have to consider how the government involves itself in IP protection and what that means to private enterprise. The current system protects the IP owner by requiring the IP owner's permission before anyone else can duplicate the IP in question for sale, transfer, or public display.

If you create an unlicensed copy of someone else's IP it's certainly possible you will provide the IP owner with free advertising, but it should be up to the IP owner to authorize that. The government forcing IP owners to license their original creations to others would defeat the whole purpose of IP protection.

This argument reminds me of customers who argue that they should get a discount on their cake because the bakery will get free advertising exposure to the guests at the event.

People post images of infringing cakes publicly all the time, just search for the name of a copyrighted character plus "cake" in Google Images (or even here on CC) for many examples.