Copyright. I Know, I Know, Again...

Decorating By tasteebakes Updated 27 Oct 2007 , 6:15am by erinalicia

tasteebakes Posted 22 Sep 2007 , 3:00pm
post #1 of 49

I was wondering if anyone knows the answer to this question.

Correct me if I'm wrong. If you buy the kit from Deco-Pac or elsewhere. You have the copyright?
When I worked at the evil empire (Wal-Mart), they said that we could make an Elmo cake (like the desin out of frosting) if we had the kit in stock. In otherwords, we had that copyright to use that image.
And someone else asked a good question. If I go and buy a John Deere Kit from Wal-Mart and then I use it on my cake that I sell, Am I violating copyright law?
It is such a deep issue.
Anyway, I am wondering because I do have kits from Deco-Pac and Bakery Crafts for licensed characters but often people want my own take on those characters, (fondant, etc) so can't I do that?
We need a copyright lawyer on here!

48 replies
mbelgard Posted 22 Sep 2007 , 3:59pm
post #2 of 49

That makes no sense, then I could say that I can make and sell an icing picture of Cinderella because I have the movie or a toy. It's really no different. WHen you buy the decorating kits you have permission to use those items for a paid cake, not do something on your own. If you could then every decorator on here would buy a kit of each character and just keep it so they could do the characters out of candy and fondant.

Jenn123 Posted 25 Sep 2007 , 2:44am
post #3 of 49

If you buy the kit, you can use the kit. You can't make your own figures and sell them. Sorry!

indydebi Posted 25 Sep 2007 , 2:49am
post #4 of 49
Quote:
Originally Posted by mbelgard

If you could then every decorator on here would buy a kit of each character and just keep it so they could do the characters out of candy and fondant.




That is not logical. You're saying you can buy "a" kit, then make "characters" (plural).

It is not logical that you can buy ONE copyrighted kit and use it as authorization to make 100 versions of that character.

If this is what that grocery did, I'd say (in my non-legal and never-so-humble-opinion) that they were wrong.

redpanda Posted 25 Sep 2007 , 3:05am
post #5 of 49

It is my non-legal (but quite experienced with regards to copyright/fair use in a university setting) opinion that the grocery was wrong. Even if they bought and discarded a kit for every cake they decorated with the copyright-protected character.

While from a logical, rather than a legal, perspective this latter scenario seems "better", it is still NOT OK. (But, you might argue, the company gets the copyright fee/royalty from the kit you bought and threw away. Nope, it doesn't work that way.)

The company/individual who holds the copyright owns exactly what the name says--the right to control who copies their "property" and in what manner. The copyright holder has complete control over whether the Decopac meets their criteria for a proper presentation of their character. They have no control over how you make your icing/fondant/chocolate character.

It means that we are limited in what we can do with protected characters, but that's just the way it is.

CeeTee Posted 25 Sep 2007 , 4:42pm
post #6 of 49
Quote:
Originally Posted by tasteebakes

I was wondering if anyone knows the answer to this question.

Correct me if I'm wrong. If you buy the kit from Deco-Pac or elsewhere. You have the copyright?
When I worked at the evil empire (Wal-Mart), they said that we could make an Elmo cake (like the desin out of frosting) if we had the kit in stock. In otherwords, we had that copyright to use that image.
And someone else asked a good question. If I go and buy a John Deere Kit from Wal-Mart and then I use it on my cake that I sell, Am I violating copyright law?
It is such a deep issue.
Anyway, I am wondering because I do have kits from Deco-Pac and Bakery Crafts for licensed characters but often people want my own take on those characters, (fondant, etc) so can't I do that?
We need a copyright lawyer on here!




Not a copyright lawyer, but I do have a B.A. in Marketing/Advertising and took tons of classes on copyright laws.

Wal Mart is wrong, possesion of the kit does not give you the copyright, it just means you can use that kit on one cake. Bakers are not allowed to sell cakes with their own design of a copyrighted character on it unless they get express written permission from the copyright holder. They can only put licenced character toys or candles on a cake if they buy them through the proper distributors. (Deco-Pac's toys and candles are ok for commercial sale, Wilton's are not.)

EDIT: Also, buying a Deco-Pac kit from Wal-Mart and then putting it on a cake and selling it is also illegal. Grocery Stores are allowed to sell them, but they are not authorized distributors to independent commercial bakers.

It's not just popular characters though. I've noticed a recent trend with cake decor is matching the cake to commercially bought plates, napkins, and invitations. This is illegal as well. While it may not be a well known character or design, there is still a copyright to those designs held by the manufactuer of the partyware.

I can understand how frustrating it is for both the consumer and decorator, but that's how it is. icon_sad.gif

kakeladi Posted 25 Sep 2007 , 4:57pm
post #7 of 49

I had a legal shop. From experience this is how it works:
When you purchase a 'kit' you purchase the copyright to make that *EXACT* cake just as the kit direct. NO changes can be made - not color, not changing border from shells to stars, NOTHING!

ctackett Posted 25 Sep 2007 , 5:13pm
post #8 of 49

Sooo...all the cakes on here are illegal? From spider man to spongebob?

nefgaby Posted 25 Sep 2007 , 5:14pm
post #9 of 49

It is my understanding that you can use any decopac toy (that is the reason they sell them) on your cakes and you are fine, I also believe you can use any toy and decorate a cake with it. Now, if you are hand modeling a Dora out of fondant, then you are violating copyright laws (if you are selling the cake) Same thing with edible images.

BUT, I also did this (with LOGOS), I wanted to make a cake for DH's birthday, he is a Starbucks NUT so I e-mailed Starbucks and asked if I could use their logo, edible image, and they said YES, as long as I didn't sell it (make $ out of it) and didn't advertise... they even wished DH a Happy Birthday and thanked me for asking first.

Also, in my photos, my Sponge Bob cake, I did e-mail Nickelodeon to ask if I could do it and they never answered me, I did the cake anyway as I wasn't planning on selling it, it was for DS birthday.

HTH and good luck.

ctackett Posted 25 Sep 2007 , 5:23pm
post #10 of 49

So all these cake here are not being sold?

tasteebakes Posted 25 Sep 2007 , 5:25pm
post #11 of 49

Well, That is interesting! At Wal-Mart we changed the colors and designs of kits ALL the time at customer requests to match Birthday colors!
While I have seen Deco-Pac say that the cake must be exactly as the picture. I have not seen anything from Bakery Crafts that says so.
Question. How likely are (they) to pursue this. Has anyone ever been sued, from here, or received a "cease a desist" letter?
Also is it right tha I can buy a toy and put it on a cake of my design to sell? I saw that and I also wonder if that is true. What if my customer buys the toy?

cakelady1994 Posted 25 Sep 2007 , 5:33pm
post #12 of 49
Quote:
Originally Posted by cjstor

So all these cake here are not being sold?


Good ?

nefgaby Posted 25 Sep 2007 , 5:39pm
post #13 of 49
Quote:
Originally Posted by cjstor

So all these cake here are not being sold?




I can only speak for myself and the 2 cakes I have done with copyrighted material, 1) edible image (starbucks) and 2) SpongeBob, where not for sale but for my family. I'm not in busiess anyway (yet)

Ladivacrj Posted 25 Sep 2007 , 5:42pm
post #14 of 49

To add to the questions.

How far does this go, you can buy character candles and other cake decorations from any aisle from any store. Are there specifications as to how they are to be placed on a cake? Or are they meant for home use only?

I have never purchased any so I have not stopped to read the small print on the packages.

just curious

newathis Posted 25 Sep 2007 , 5:44pm
post #15 of 49

All these ladies are right about only using kits, and not portraying your own, which then yes a lot of cakes on here are most likely illegal, with that being said i worked at a bakery i no longer work at ( sahm, yea!!) and the head decorator worked there for 12 years, drawing images by hand with buttercream for every cake we used plates and napkins for designs and used our own heads for ideas, we never bought plastic for cakes , she hated using plastic on cakes, she was afraid of getting caught because another bakery threaten to turn us in ( i think we were taking their business) they never did though, but if you make your own and change even the smallest detail, they can not sue, right?!!?, like if you make elmo's nose a different color, then thats not a copyright, that is flmo, not elmo right?!?! , Well i have no point really, but don't disney and nickelodeon make enought damn money anyways, they can stand to lose 20 bucks on a copyrighted image, i say !! So draw on ladies, i know i will, lol, ( now i'll get turned in, lol) icon_biggrin.gif

leily Posted 25 Sep 2007 , 5:58pm
post #16 of 49
Quote:
Originally Posted by cjstor

So all these cake here are not being sold?




Good question! I am sure some of them are, but it is illegal.

Any cake I make that is being sold must not have any copyrighted items on it. Some people make them and sell them, but it doesn't make it right.

As to the question of changing the color of elmost nose... If taken to court what they will ask is if it is recongnizable. For instance someone makes a "Princess" with a blue dress overlay over white, blonde hair, and her hair pulled back with a blue headband. It is marketed as Princess, but it is reconized with Cinderella, yes you can still be sued over this... the small detail thing doesn't really make a difference if they still want to go after you.

CeeTee Posted 25 Sep 2007 , 6:05pm
post #17 of 49

If you make a character cake and do not sell it, it is legal. You can make whatever you want for home use. The cakes you see on CC are legal as long as they were not sold to someone else for profit.

The licenced characters candles and cake decor you see on the gocery store aisles and at craft stores are only for home use. You cannot buy a Wilton or Cake Mate candle/toy and put it on a cake for sale. You cannot sale cakes that recreate Wilton yearbook cakes exactly, and you cannot sale ANY of the licenced character cakes at all.

You cannot buy a toy at the store and put it on a cake for sale. However, if the customer buys the toy and gives it to you to put on the cake, that is legal.

Dawncurby Posted 25 Sep 2007 , 6:06pm
post #18 of 49

Hi..
I use to work for Publix as a decorator. If someone brought in a napkin or plate we did not use it for the design, ut could use it to match colors. If the design was one that we could offer drom the book, then we would suggest that pattern. We also got in the deco-pack and the Bakery craft kits and we did and they still do sell them to a customer if they ask for one of the kits. Usually I by my decorations at a bakery supply place for my cakes, but there has been times that I have bought items form the store ( like Wal-mart or something) and then designed a cake around it. I do not own a business and like a lot of people this is a side thing for me not a full time job. If I did own b business I would MAKE SURE I knew all the facts to make sure that I did not get sued. These days people are very sue happy..Just me 2 cents.

Dee

newathis Posted 25 Sep 2007 , 6:07pm
post #19 of 49

i wasn't totally sure about the detail thing, so thanks for clarifying it for me, i was just told that by " people" I guess anytime you want to do a cake for someone that has any kind of copyrighted material on it, you are taking a risk, but like i said before, i will continue to do so, i like my ideas better then using the ones that are legal. I heard it can be a $500.00 fine for the decorator, and if you work in a bakery they get fined too. i am taking the risk, like i said before they make too much money anyways, like musicians and celebraties, share the wealth, lol icon_biggrin.gif

all4cake Posted 25 Sep 2007 , 6:09pm
post #20 of 49

A "cake kit/poptop" as bought from an authorized retailer/wholesaler (decopac/bakerycrafts/...) is supposed to be used as described on their cards...this is the approved design of the original license/copyright owner. The only approved change is supposed to be colors but only if those colors are in the kit/poptop/original design. Like, I couldn't put pink borders on a cake that had a spiderman poptop on it...the color is neither in the original design nor in the poptop itself.

This question was presented at a decorator's convention at the beginning of 2006 which included some of the retailers/wholesalers and some of the license/copyright owners as well.

KathysCC Posted 25 Sep 2007 , 6:12pm
post #21 of 49

I asked this question in another thread and have not heard an answer there or here. Does anyone know someone who has been sued over copyrighted "cakes"? Is there a news story or story on the internet about this happening to anyone? How likely would it be that Nickelodeon, for example, would come sue me for selling a Sponge Bob cake to my next door neighbor or someone from my church? I'm not saying it can't happen. I'm just wondering how likely it is. None of this ever even crossed my mind before. I just make any cake I want and though most of my cakes are freebies, I wonder what to do if someone asks for a character cake. I can see that big outfits like Walmart or bakeries must comply but what about the casual home baker which I think the majority of us here at Cake Central are? Do we even have to worry so much about this? Just pondering icon_confused.gif

And another question. What about Wilton's cakes? Most of my cakes are exact copies of cakes in the Wilton yearbooks. Is it illegal to sell cakes that were their idea?

indydebi Posted 25 Sep 2007 , 6:13pm
post #22 of 49
Quote:
Originally Posted by newathis

Well i have no point really, but don't disney and nickelodeon make enought damn money anyways, they can stand to lose 20 bucks on a copyrighted image,




It's not the money they are concerned with .... it's the integrity of their creation.

missy77 Posted 25 Sep 2007 , 6:14pm
post #23 of 49

Ok, so what about this.....I heard that you can sell a character cake (like Elmo, or whatever) but that to protect yourself, you should write up an invoice stating that there is no charge for the cake, but the "delivery fee" is $30 (just an example).

CeeTee Posted 25 Sep 2007 , 6:19pm
post #24 of 49

Newathis: Theft is theft, doesn't matter how much the creator or copyright holder makes. It's about business ethics. That's what's really at the heart of it all.

Copyright law is ugly and the devil is in the details. And a hobbyist baker making money on the side is just as vulnerable as a professional bakery. Are the chances of being sued very small? Yes, they are. Unless you are out there making thousands of dollars you will fly under the radar of the copyright headhunters, but it doesn't mean that risk doesn't exist.

When I was in college I saw many real-life examples of where small businesses were put out due to using copyrighted images in their promotions and sales. (such as daycares using Disney/Nickelodeon images, Sports bars using Pro team logos, and so forth)

That's why it's legal if the customer brings you the toy/item for a cake. As long as that toy/candle/whatever is not on your books, they can't touch you. It falls into the realm of home use by the purchaser. But if you draw that image onto the cake and make any form of profit off it, you run that risk.

CeeTee Posted 25 Sep 2007 , 6:22pm
post #25 of 49
Quote:
Originally Posted by missy77

Ok, so what about this.....I heard that you can sell a character cake (like Elmo, or whatever) but that to protect yourself, you should write up an invoice stating that there is no charge for the cake, but the "delivery fee" is $30 (just an example).




That does not protect you at all. In fact, it's a double whammy. Not only does it not protect you from copyright law, and it also is a form of extortion/price gouging.

all4cake Posted 25 Sep 2007 , 6:22pm
post #26 of 49

I would say that even a delivery charge for a copyrighted cake would still be in violation....you are still profiting from the cake, yes?

I have done character/copyrighted cakes....BUT I do NOT profit in any way from them...not even reimbursement for supplies...when someone orders them...they must make out a check payable to a non-profit charity....my name is in no way associated with it...not even for a tax write off

newathis Posted 25 Sep 2007 , 6:28pm
post #27 of 49

i am sorry , i did think it was all about the money, after all you hear about big corporations, i didn't think they cared at all about the integrity of their charactors, when it came to this stuff........i suppose you all think i am evil now, jheez the bakery i worked at was a grocery store, and they only made money because of the cake decorators creations with copyrighted material. i see a lot of you take this very seriously, i am sorry to talk to lighthearted about it, thats just the way everyone i know has taken it, including myself, again my apologies for upsetting anyone icon_redface.gif

BCJean Posted 25 Sep 2007 , 6:34pm
post #28 of 49

When it seems you are not taking very much money from the pockets of these copyright holders...multiply that by 1000. You aren't the only one doing it. The reason they seem wealthy to you is because they came up with an original idea which became popular....no they don't want to share their fortune with everyone who wants to attempt to copy them or crowd in on their fortune.
For those who choose to go ahead and disregard the copyright laws, you are violating the law each time you do it. You are stealing from the person who had the original idea. Is that really the kind of person you want to be?
Where I work we decorate cakes all the time which is a scene only...almost anything they want us to do for them. Once they take that cake home they can add any toys to it they want to. It works great for us and they get a custom cake which is different from anyone else.
There are so many designs which are free to use, I can't see why anyone would want to do something which is against the law just because they are getting away with it. Use those cake decorator imaginations and come up with awesome cakes to compliment every copyrighted design.
I own a copyright...I would be very upset if everyone started making copies of it and selling it.
And that is my opinion.

CeeTee Posted 25 Sep 2007 , 6:38pm
post #29 of 49
Quote:
Originally Posted by KathysCC

And another question. What about Wilton's cakes? Most of my cakes are exact copies of cakes in the Wilton yearbooks. Is it illegal to sell cakes that were their idea?




The chances of being sued for making a cake for a neighbor or church are slim to none. The occasional character cake will not put any hobbyist into any form of legal danger.

Technically, it IS illegal to do an exact replica of a Wilton cake. Their books are for home use and ideas, and even in their books in the fine print it says you cannot even scan and post a photo of anything in their yearbooks without written permission. That said, I do not think Wilton goes after any bakeries that reproduce their designs, as they do produce books with designs that are allowed to be used for commerical use. The only ones you'd have to worry about are the Wilton cakes that use copyrighted characters.

tasteebakes Posted 25 Sep 2007 , 6:38pm
post #30 of 49

I am also curious about whether anyone knows anyone who has been sued over this or received a "cease and desist" order.

(and we have all seen the princess dolls in the dollar stores from china that are made up to look like snow white, etc. with the words "princess doll" stamped on it. That syuff is fairly mass produced and it doesn't appear that Disney is going after them)

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