You can't sell any cakes with anything on them that is licensed? All of my favorite cakes, all of the cakes people want to buy, ALL of the cakes kids want for their birthdays have licensed characers, Scoobie Doo, Bob the Builder, Brutus Buckeye, Hannah Montana, Dallas Cowboys............! My nephew wanted a Bob the Builder cake and I couldn't find a single toy or anything to put on it so I made the characters from fondant for him and he loved it. Everybody saw my Brutus cake and wanted one. But I can't sell them? SAY IT AIN'T SO! I can't believe all of the cakes on here have been gifts.
It is illegal to replicate and sell the image. It is likely, many of the cakes here that include licensed images have been sold, however, that does not make it legal.
From my understanding, if you purchase a licensed material (such as buying an edible image from a store) you can put it on a cake and sell it. I believe it's called something like the first right of sale, but hopefully someone else can give you more info than I have. If you were to just create your own characters out of fondant of print your own edible image from your computer and sell it then yes that is copyright infringement and it is illegal.
This is a subject that I have the hardest time getting customers to understand. They just don't get it! I think a lot of people figure that since it's something edible that they can't really keep there's no harm. The bottom line is if you collected money for that character and the parent company didn't give you permission to use it, you broke the law. I'm the one that's going to get into trouble and get fined and that's what I tell my customers, that's it just not worth it to me and if they can find someone else willing to take that chance, more power to them! I offer all the figurine sets from Bakery Crafts and Decopac that are OK to use and can do a lot of things with matching colors, shapes and themes without using the actual character. It's different when you are doing stuff for your own kids, of course you want to do something spectacular for them! Just tell the other parents that you have the ability, but are bound by the trademark laws!
This is what I have framed on my shop right next to all my current licenses:
Character Pans/Character Images
All licensed character shaped pans, candy molds and cookie cutters are for consumer home use only.
Stores/Shops/Decorators cannot make cakes, cookies or candies from licensed or copyrighted images and sell them to consumers.
These "mold-making" items are strictly prohibited from any type of commercial use since the licensor has neither the method to control the quality of the reproduction of the character nor the ability to earn royalties on sales of the "made" products. Free-hand or copies of character designs cannot be drawn or iced on top of a cake, cupcakes or cookies and sold for any type of commercial purpose. Once again, the licensor cannot control the quality & is not earning a royalty on the product created around their characters.
Specifically, creating any type of image that looks like a licensed character that then is sold for commercial purposes is prohibited unless there is a specific licensing agreement with the licensor for that product and royalties are paid each time the product is sold.
Additionally a customer cannot bring a character pan/mold they have bought or a toy topper for a cake to a decorator or store/shop, and ask them to make the cake/candy/cookie in exchange for money. This is considered the same thing as above, because money is exchanging hands without the licensor earning royalties.
A copyright protects an original work or creation and gives exclusive right to that work or creation to its author. Copyright law protects the author's/creator's work by prohibiting anyone else from using or profiting from that creation in any way without the owner's permission.
In reproducing copyrighted figures, it does not matter if the character is drawn by hand, added using an image projector, or put on a cake with a computer cake machine. If the item carries a Â© or Â® or â¢ symbol, then it is protected. Although most copyright materials will contain either Â© or Â® or â¢, U.S. law does not require it.
Copyrighted Photos for Edible Images: Obtaining the release
_________________ will contact the photo owner/photographer requesting a release for the one time use of their photo. If there is a charge for _________________ to use the requested image you, the customer will be notified and given the option to pay the photographer (a confirmation to me from the photographer in writing is needed) or the cost can be added to the cost of your cake and must be paid in full prior to pick up.
Can it really hurt?
The answer is yes. Some copyright holders may be satisfied with a cease & desist order, others could choose to file a lawsuit. Ignorance of these laws will not dismiss the suit, or get you out of trouble with a cease & desist order. The court could find you guilty and award financial damages plus attorney fees. The copyright owner can collect damages without having to prove that your infringement actually cost them monetary harm. Fines can vary. Some may only ask for a low fine but some well known companies are very aggressive in going after anyone and be as high as they feel their image use is worth.
How will they know?
In actuality they may never know if I were to do a copyrighted image on a cake. Some companies though do have legal teams dedicated to searching out their images being used with out permission. There are some well known companies who do focus on the cake decorators industryâ¦. In turn let me ask, how do I know you are not part of one of those legal teams who are testing me to do your image? I pride myself in my work, and running my business in a legal fashion. If you are part of a legal team looking for me to break the law, please rest assured itâs not going to happen at this place of business.
Why can you do a Character Image from the Deco Pac book?
Deco Pac has arranged to cover the cost of royalty fees for use of their products. Because of this the cakes MUST be recreated exactly as shown in the book.
With that saidâ¦ If you really want to have a copyrighted image, I will design a cake to match your theme in any way possible and you may buy any accessories you wish and place them on your cake when you get it home.
Be very careful about choosing to break this law. Ignorance of the law won't matter. Some copyright holders might give you a slap on the wrist for a few thousand dollars while many of the more famous characters and images will go after you with guns blasting and fire from the devil himself and hit you with a lawsuit asking for well over 100K.
I've seen it happen and I've seen it bankrupt and implode very successful bakeries and cause bake at home types to loose their homes and all they hold dear.
I won't even go into what will happen if you are caught and are not licensed, we are all adults with vivid imaginations. It's not pretty.
After 20+ years in this business I have witnessed some of these copyrights being enforced let me tell you it was ugly.
Just like being legal it's a decision you have to make and come to terms with in your conscience and heart.
And yes some of these companies actually do have teams to search the internet and sites like this to locate people breaking this law.
I have a question. For those "famous" cake decorators out there who do cakes of characters and have well known websites, is there a reason they are allowed to do licensed characters? Are they getting permission for every name brand or character they recreate?
You'd have to ask them.
They may have permission, they may be paying the royalty fee, they may be playing the catch me if you can game just like many others do.
CarolynGwen, Thank you for your reply. I was so disappointed when it hit me that I could not sell the cakes everyone loved so much and I felt stupid for not seeing it right away. I didn't know it was that serious, though. Thank you for sharing your letter. Would you mind if I copied it? I don't have a business now, but am thinking about it...hopeful, but hesitantly.....
I have it in a word document if you want it.
I know it's heartbreaking to hear this type of news.
I can't tell you the amount of customers I've had through my doors who try to talk me around and around on this trying to wear me down.
I even had one customer go as far to get a notary statement stating she would accept responsibility for it if I was caught. Nope. I still wouldn't.
She whined, cried, snivled and groveled. It wasn't pretty. She said that other bakeries would do it so why wouldn't I. I just gave her a blank look and said "then why are you here if they will do it." She didn't have an answer for me.
Put yourself in their shoes... if that were your copyright would you want people breaking the law and pretty much using your work with out getting royalty fees? I sure wouldn't!
Putting my business plan and ideas together & the Copyright statement that you have in your shop....I have to say. I LOVE THIS! Do you mind I use it in my shop? I can see it painted on the wall with some scrolls or other decorative border around it and it be like 4 FT Tall! Ha ha ha I love it! It's there on the wall for EVERYONE to see and you woun't even need your glasses to see it!
This thread has been most helpful, albeit a bummer! I have been asked to make numerous character cakes but now that I know the laws I will stop! I am not risking this new business for a kids birthday, except my own. It just is a bummer because the kids cakes are so much fun. CarolynGwen, thank you so much for your letter/info. It really helped me to understand.