Like many decorators, I get calls or emails about doing a Minnie Mouse cake or Monster High cake (most recent request). So far, (since asking many months ago about this topic) I have politely explained that I don't do any cakes that could be in violation of copyright. It still makes me wonder, how are so many people doing these cakes and getting away with it? 

I have some questions for those that make cakes that are in violation of copyright laws. There are so many on this site (with varying degrees of talent) and on the Facebook pages of those that I follow, that I wanted to ask why you do them. I know that all of those cakes aren't just for people you know (I've seen some, like Pink Cake Box's Hat in the Cat who say the cake was a gift and not for sale). Basically, what is your thought process? Do you think that you aren't going to get caught or that if you do, it won't be a large fine? Is it more, "well everyone else is doing it"? 

I really hope my post wasn't rude or disrespectful. Many of my favorite decorators on here have made Disney cakes and I want to be able to some how justify doing one if I want for a friend or family member. My sister has already mentioned wanting a Clubhouse Disney themed cake for her daughter's birthday and I did do an Angry Birds cake for my niece's birthday. 

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.

AFrankly, 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.

AI 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.  

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. 

ACopyright 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.

A

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.

I have done several character cakes, mostly because kids love them.   To that end though, I have never sold a character cake nor advertised that I sell cakes at all.  I do take photos.  I pour a lot of effort into any cake I do.   

I would love to be "good" enough to command money for my work, but I kknow that I am a ways away from that. (From both a technical aspect and a business mindset aspect) 

While thinking of this, I thought of the tattoo industry...people get character tattoos ALL the time.  Tattoos are pretty permanent. (And can cost the same as a cake with just as much work going into it!). I wonder why they aren't getting popped left and right, but a little edible cake that will be

gone in a day is such an issue.   

Just a thought :)

A

Jason, 

I figured that they are measured by the same criteria.   Copyright infringing is bad bad bad.   If/when I ever do make the step from hobbyist to professional, I can assure you that there will NOT be any rule breaking from this baker!   I have a very strong authority respect/fear.   I haven't even had so much as a parking ticket....I am too poor to pay hefty fines and orange jumpsuits aren't my color! 

Btw Jason, thank you so much for your insight on all of these threads.  You are beyond knowledgable and very concise.    I appreciate reading your advice.   Don't know why you get razzed as often as you do.   

Heather 

ABeating a dead horse or not, I appreciate it being discussed. I get requests for character cakes every week, and since I won't do them, I'm losing business to the next person who doesn't care. And I am so tired of having to explain to yet another request for one, only to go on Facebook and see very well known cakers who make wonderfully neat and amazing character cakes, and do so knowing they are infringing on copyright. It makes me crazy. My husband is an attorney, and yes cakers are getting sued. But even if they weren't, if Disney et all were looking the other way and DID'NT have their attack dogs on the prowl to seek out copyright infringers, (which they do), as long as it's illegal, I won't do it. How hypocritical of us as cakers to get all up in arms about someone stealing our cake photos or designs and calling it their own, and then the next day making Mickey?

AI'm responding to the"Mickey Mouse"delima. As a Christian I agree with the desire to obey the law yet serve your customer and not loose business...or freedom! I had the privilege to be a juror on a copyright enfrigement case a few years back. Whst I learned was that as long as you do not make the character (s) EXACTLYas Disney or Marvel or whomever owns the rights you are not in breech of copyright laws. Its best to stress that with your customer that it will resemble the chsracter requested but will have your "twist" or "interpretation" and that you have to do itthat way because of copyright laws. Reassure them though that it will be reconizable. The only other way to do this and satisfy your conscious and the law as well as the customer is to buy the Deco Kits. Hopefully they have a liscense but at least your "hands are clean". I appreciate you bringing this up. It would be interesting to see if some of the Big Chain Stores-Wgmans, Harris Teeters, Giant, follow copyright rules!

A

It sounds like you are talking about copyright protection for derivative works, which is an original expressive creation that includes an existing copyrighted work. I would be very careful about relying on this argument if you use someone else's copyrighted character and make a small change to it.

Fair use protection for derivative work depends largely on transformativeness, meaning that new insight is granted to viewers of the work based on your changes (e.g. parody). If your primary goal is to change the underlying work just enough to circumvent said work's copyright you are treading on very dangerous ground.

The other thing to note is that arguing about your fair use rights would require proceeding to a trial and spending a lot of money for a legal defense against a team of lawyers funded by a very large company.

http://en.wikipedia.org/wiki/Derivative_work

AIt's the people who are doing "derivative" versions that are the first to be looked at by those looking to protect their copyright. It's those who "twist" or do an "interpretation" of the characters who in the most danger. "Mickey" put into a, uh, compromising position with maybe a different shirt on, or none at all, for example, but still definitely meaning to be Mickey, are one of the reasons the law is there. To not only protect someone else's artwork but also to protect the integrity of their character.

AIts probably not a popular opinion, but I think big companies like disney should just allow it. I get it, its there property. But its not like they have bakeries that are offering these products. What would it hurt them

AThat's why they provide toppers and such for cakes. They actually are in the cake business. And, being a business, why would they want any potential money to pass them by, after years of development on their products.

AThe idea is that if they ever do want to get into that business, they won't have any competition. Or they can license out the rights if someone offers them enough for it.

ADisney has their own high-end cake decorating division at their resorts in Florida, California, and Hawaii as well as on their cruise ships: http://disneyweddings.disney.go.com/weddings/florida/design-studio/cakes/detail https://disneyworld.disney.go.com/celebrations/customizations/

They make most of their money from licensing IP, for cake decorating supplies much of that probably comes from DecoPac. In 2010 they earned $28B from licensing out of total revenue of $38B. Without this licensing income they would lose 75% of their revenue (and an even higher percentage of their profits). Disney has 156,000 employees so this could result in 100,000+ people losing their jobs.

AI understand what you're saying and I retract my statement. But I disagree with the implication that most of their liscensing revenue comes from cake or cake products. I imagine that cake is a very small percentage of that 75% .