That sucks! I've done my share of grabbing ideas from somebody else. In fact if i come up with an idea that someone else like and wants to recreate I would find that so flattering.

Hi all. Just wanted to make the issue just a little bit clearer for anyone that is confused about copyrights. Because I write poems and have done research a long time ago, I know just a tad bit about copyrights.

Copyright is a form of protection provided to the authors of original works of authorship including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, to distribute copies or phonorecords of the copyrighted work, to perform the copyrighted work publicly, or to display the copyrighted work publicly.

The copyright protects the form of expression rather than the subject matter of the writing. For example, a description of a machine could be copyrighted, but this would only prevent others from copying the description; it would not prevent others from writing a description of their own or from making and using the machine. Copyrights are registered by the Copyright Office of the Library of Congress.

And yes, you can search a database of patents, trademarks etc. This is the best site to go to for information concerning copyrights, trademarks, servicemarks and patents.http://www.uspto.gov/web/offices/pac/doc/general/index.html#ptsc
People do tend to use the word copyright loosely as a scare tactic. Education is the key. If you stole her pic from her site and put it on yours, then I would be alarmed. Other than that, there's no patent on the cheeseburger cupcake

those are great burger cakes.

not sure if I should post in this thread or make a new one, but I had a similar question about whimsy cakes.

http://www.pollyscakes.com/2004/home.cfm This business claims to own copyright on all whimsy cakes, but I see them all over the place? I find it hard to believe every uneven tiered cake with a wacky design i have seen was created with her permission.

Here is what it states on the website:

* The Whimsy Cakes name and Whimsy cake designs are legally protected by registered trademark ® as three-dimensional sculpture. Click here to learn more about your legal obligations under trademark law. See very bottom of page.

All cake designs are protected by copyright, and may not be reproduced without express permission of Polly's Cakes. Please protect artisans and uphold the law . . . buy the original.

I'm not so much worried about the name as I am about the designs...if I hadnt stumbled on this site I would have never thought to ask someone permission.

Can anyone clear this up?

Does that mean the name Whimsey can't be used as a description on another cake and the design part, does that mean you can't copy a particular design????
The shape of the cake can still be called whimsicle???? and the design can be whatever as long as it is nothing like polly's?????

I remember reading this on her site several years ago and thinking the same thing! I wish we had an expert on trademark/copyright to clear all these issues up for us!

"polly" said (on her website) she was the "origniator" of whimsy cake in mid 90's, but i could have sworn i read that colette peters was the first to do a crooked cake back in the late 80's. anyone remember?

So how's that tutorial coming along??? I'm dying to check it out!!! Poor me, I'm such a visual person.

EEEEEEEEE this thread is making my skin crawl! For the record, I am an attorney, I'm currently not practicing but I focused on IP issues. And so many of you are giving such incredibly bad, incredibly wrong information! Not maliciously, I know, but from a very imperfect understanding of copyright law.

If all of you take away only one thing from this post, let this be it:

You do not need to register a copyright with the US copyright office! You own the copyright from the MOMENT OF CREATION. For example, I now own the copyright on that previous sentence from the moment I wrote it. Now, to *enforce* your copyright, it's helpful to register your copyright with the US copyright and trademark office. But it is not required!! Just becasue you can search and not find something on that website does NOT mean that someone else doesn't own the copyright!!! Whomever created a particular design first owns the copyright, not whomever recorded it first. This is not a race-to-record statute.

A copyright covers the expression, not the idea. Is this chick the first one ever to create a hamburger cupcake like that? No way. We can find plenty of earlier instances (many cited here) and so she definitely doesn't own the copyright. She knows enough about copyright law to be dangerous and annoying, but she doesn't understand the nuances. She might make a stink, but she doesn't have a legal basis to stand on.

I LOVE this thread and have my two cents to throw in ...

modthyrth - Thank you for your legal perspective! So now that we understand whoever first created the hamburger cupcake is the official owner of the copyright, can you explain how successive creations of a hamburger cupcake by others might violate the copyright owner's rights? Sorry, that was wordy. What I'm getting at is this - is the entire *idea* of a hamburger cupcake now protected by copyright, or can others create their own version of the hamburger cupcake (by changing colors, the design or detail, etc.), thereby creating a new item that can then be copywritten without violating the copyright on the first hamburger cupcake?

Here's my other thought about copyrights in general - are they really necessary??? Or just something to fret about? I think the key to a successful business is to always stay creative, fresh with ideas and ahead of the competition. Often times, big companies don't even bother with copyrights & patents ... I see no copyright info on Eleni's website. In my opinion, that's because she doesn't need one - she has 'branded' her products based on her quality, appeal, trendiness, originality, etc. To me, those factors will contribute to her success far more than copyrights.

Regarding the discussion on whimsy cakes ... I think what I heard is that she trademarked the phrase "Whimsy Cake." That means you can't refer to your cakes as 'whimsy cakes' - but you can still create a cake that looks like a whimsy cake.

Not to be a downer, but the phrase "Edible Image" is actually trademarked by Pillsbury ... this means we actually can't even use that phrase in our marketing materials. Eleni's and others do, but I don't know how they get away with it ... guess Pillsbury doesn't police the way Disney does.

One last note ... I call my business 'Truly Scrumptious Cookies' (a movie I'm fond of because I watched is so much as a kid). When I became an LLC, my lawyer checked to see if the phrase 'Truly Scrumptious' was trademarked because of the movie. Fortunately, it's considered a general and common phrase and not protected by a trademark. Otherwise, I couldn't have used it in my name.

I'm not an attorney, so if I got this wrong - someone please correct me! I don't want to mislead anyone!!

Just like if you look on Cookies By Design's website, the phrase "cookie bouquet" has a trademark symbol next to it. I removed that phrase from my website when it was pointed out to me.

No, they didn't contact me. A friend pointed it out and I removed it right away. Although, in conversation, I would tell people, "We can't call them 'cookie bouquets' .... but that's what they are." I was careful in conversation, but then put it in writing on the website!

I'm just operating under the 'better safe than sorry' theory.

BTW, I contacted my attorney the next day to start the copyright/trademark process on the term "Banna's Bloomers".

TScookies--you've hit upon a central issue. The expression is copyrighted, but the idea is not. So imagine the first person who ever came up with the idea for a hamburger cupcake. She got a copyright for her version, the way she expressed the design. Not the concept of a cupcake that looks like a hamburger. I could make one that has faux swiss cheese instead of fondant american, an onion bun instead of a plain one, two "beef" patties instead of one, and I could skew the bun off center instead of having it straight on top. And that would probably be enough to avoid violating the original creator's copyright. Probably. like I said before, there's no bright line rule.

Another example: You can't copyright the idea of a three tier white cake with black scrollwork, but you can have a copyright in the exact way you interpret that idea.

And are copyrights necessary? Super tricky question, and entirely debatable. The law can never move as quickly as technology, so it's always trying to catch up in a clunky, ineffective fashion! It's a seriously flawed system, but it's the one we have to deal with, at least for now.

i saw a cake shaped like a hamburger in either family circle or womans day over 10 yrs ago!! im sure there really is NOTHING totally new anyone can do to a cake or an idea someone may have that no one else on earth would also have.

i just wanted to let u know that i submitted a how to article to J&H.....we'll see if they decide to post it or not

and Eggshells - i made some of these for a picnic table cake (in my pics)......complete with MMF sesame seeds!!!

Okay, okay, I know this has been beaten to death.....
but I just had too.....see the cover of Bake and Make Amazing Cakes by Elizabeth MacLeod (2001)

tiptip57 - yep, some other CCer's sent me emails with different books/articles that have been published with the cheeseburger cake/cupcake design as well - as amo if ever needed.....but still no word from the copyright queen.....so no worries!

modthyrth,

I just wanted to give you a big hug.

#1 - I'm from Arizona and miss it there a TON
#2 - I loved studying law and wanted to go to law school, but my parents talked me out of it... (long story)

I find it interesting how uppety people are about cake designs. Even if two people made a cake based on the same idea, it would be darned near IMPOSSIBLE to make the cakes exactly alike. The Cake Theme of the Month is a good example of that.

Rachel

Aw, thanks guys. I'm always ready to jump in and add my two cents, even when it's not wanted, but it's much better to be appreciated.