For those that sell Disney, Hello Kitty, and other Copyrighted Cakes

to me, if i did not post a picture of the cake that was relate-able to a business venture then i think i can do copyrighted items like for family and close friends

 

there's a fair use doctrine that imo is vague enough to be applicable to the scenario i painted

 

it's always debated in courts and etc. so who knows what it all means but so long as i am not profiting in my business from it i think i am ok

 

for example--this is a made up illustration---my business (along with several others) is being mentioned in the paper for having donated a cake depicting the castle in the magic kingdom that's being used in a silent auction for a heart warming charity

 

i think that is copyright infringement because i am gaining business exposure through that even though it is a donation

 

some peeps would interpret that differently

 

i did an ariel cake for my daughter 20+ years ago--i never put it in my business website

 

that's how it divide the disney stuff

 

 

Really this has been discussed to death. To many people they think yes there is a law against it but to them it is not morally wrong and rarely enforced so why obey it? Other rational may be these are large corporations that are making huge sums of money, I make the cake, frost the cake decorating is sometimes a fraction of the entire cake cake so why not if somebody else is going to do it if I turn this order down. Or people think well the corporations aren't making anything close to this copyright product so why not, I'm not selling figures, t-shirts or the like so I am not really taking away revenue from them, I may even be helping because without the cake they may decide not to do that themed party and not buy all the legitimate good around it. My personal philosophy I try to incorporate actual licensed products in the decorations and make the cake a background, but if the customer will go somewhere else if I don't I take the order.

Frankly, I think many people are ignorant to the copywrite laws. Ignorance is bliss, right?
Also, I know people who are aware but just don't care. Some think that they are a small business & nobody will notice. Some just plain don't care.

I determine for myself what the risks and consequences are, and whether or not I am willing to take the risk. The same goes for speeding. And ripping the tags off mattresses.

The writing on a mattress tag says not to be removed by anyone but the consumer. So there's no harm in doing that even though it's an often cited 'offense'.

I believe I an make a copyright character cakes for my family, Wilton sells the pans for home use, if I make a cat in the hat cake, I don't use a Wilton pan but I think it is okay, I can buy material with Disney characters on it and it says along the salvage edge for home use only, which i think means I can't make a dress, shirt or any thing else with the material and sell it at a craft fair. I can make these items in to clothes or use pans for cakes for family, I would include niece or nephew in that. I would not make them even to give away for someone out side the family. I have never had any legal opinion on that, but I think it is a reasonable conclusion to the copy right issue.

Let me preface this with this is just my opinion and how I do things.  It is what works for me.  I am not saying this is how it should be for others.  Everyone has to find their own compass in life, business, and beyond.

 

With me, in addition to just knowing and following copyright/trademark laws, I view it as a respect issue.  I want others to respect me and the work I do.  I have to reciprocate that respect to the artists and companies that hold the rights to those items.  Even if customers walk away, I know I did the right thing for me and my company name. This applies to all cakes, for sale, for donation, for family.  I cannot control who takes pictures and posts to social networks.  In any case, my business name would be connected to that cake.  And I do not like gray areas when it comes to business.  There is too much at stake.  

 

That being said, there are a few pictures floating around out there that I did for my son and nieces before getting into business that are of trademarked characters.  

 

But since learning about the copyright/trademark laws and reading the various interpretations of them, the only options are to purchase licensed items and place them on the cake or get written permission from the rights holder.  

This is how I do it too. There is so much interesting stuff in the backgrounds of most "themed characters". Anyone ever look at what's going on in Adventure Time? The scenery in the Angry Birds games? I could go on and on. But nooooooooo, people google (insert character name here) cakes and they that same one, done a million times that is as copyright violating as they come, and they get all starry eyed. 

 

Hrumpf! I have a ban against them myself, a personal kebosh if you will, I won't say it outside of here, but they are so dang boring and soul sucking and I am GLAD I have the copyright excuse to use to avoid doing them. If others want to cut out a million Minnie mouse ears and make 20 Hello Kitty head cakes every weekend, go for it. I ain't "cakes by Xerox".

That said, I am preparing to make The Onceler's House (The Lorax) out of pastillage, RKT and gumpaste for my son's birthday, to sit up on a real cake.

I believe those that do it are not familiar with copyright law or just dont care. These corporations are after other big businesses who infringe their trademarks, not little bitty cake decorators. So perhaps the more famous you are and well known, they may try too do something. I dont see the big time cake decorators like Ron Ben Israel use copyrighted material or if they do, they have the power and repuatation too get it approved. The only big shot I see doing copyright characters is Duff every now and then (although I know there are more). I dont even think Carlos use copyrights. Only lower ladder decorators (small businesses/hobbyists) use copyrighted stuff and that is fine because I dont think Disney, Marvel Comics, etc is going too care. 

Copyright violation (assuming no permission from the owner) kicks in when the copy is sold, transferred, or displayed publicly. There is no violation if all of the following are true:

- The cake has not been sold to someone else
- The cake has not been given to someone else (as a complete cake with copyrighted images intact)
- Pictures of the cake have not been posted publicly online or elsewhere

There is also no violation if a copy was not made, e.g. a licensed figurine was bought and resold as part of a cake (first sale doctrine). Fair use is generally not a viable defense for infringement involving cake decorating, since it protects things like parody, quoting other works for reviews, and educational use.

I tend to agree that most copyright violations are due to ignorance of the law instead of willful infringement. But as they say, ignorance is no excuse.

There are probably also many people who make an effort to protect their own IP (for example, by watermarking pictures) but do not make the connection that the IP of others is also deserving of protection, even if the IP owner is very successful.

While it's true that most large businesses that own copyrights (like Disney) won't make the effort to bust small-time offenders, there are smaller companies springing up that specialize in IP protection and contract their services to large IP owners. Since they get paid based on how many people they catch, they will probably be somewhat more aggressive.
Edited by jason_kraft - 3/17/13 at 5:57pm

 

Hi Jason,

 

 I'm just a tad confused.  What exactly does this mean (highlighted sentence)?  I ask because when I did an Elmo cake for a friend, as a gift,  last year and spoke to the Sesame Street copy write attorney he said I was OK as long as I didn't use it for advertising or leave it on display that would constitute advertising.  Let me clarify,  - He said there wasn't anything they could do to me and told me to enjoy.   I think we had this conversation last year - are there new details or have I just misunderstood - (definite possibility).   Thanks :)

 

Jeanne

The highlighted sentence is based on my reading of the copyright office's definition of 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.

http://www.copyright.gov/help/faq/faq-definitions.html

It's certainly possible that the Sesame Workshop attorney had a different interpretation of this definition, or they could just be more liberal about allowing noncommercial use of their IP.

I usually prefer going by the more conservative interpretation to be safe, if you're not sure if something is infringement or not it makes sense to get permission from the IP owner just in case.