happy1mom Posted 16 Jul 2009 , 8:20pm
post #1 of

Can I sell character shaped cookies, like Elmo, Mickey Mouse, etc? Or is it considered infringement on trademark license/character? I posted some cookies on craigslist to get a feel for demand and I got an indirect reply stating that I would be breaking the law if I continued to attempt to sell them.

Can anyone tell me if it's illegal? I feel dumb for not knowing...............
LL

17 replies
cakemaker30 Posted 16 Jul 2009 , 8:27pm
post #2 of

Yes it's illegal.

miss_sweetstory Posted 16 Jul 2009 , 8:28pm
post #3 of

It is considered trademark infringement to sell images/respresentations of licensed characters, and it is illegal.

You should feel SMART for asking the question. That's how you get answers.

Pastry-Panda Posted 16 Jul 2009 , 8:29pm
post #4 of

I'm not 100% sure but I would say it is illegal unless you have permission from the companies.

But like I said I'm not sure , but just for safety sake I wouldn't.

dinie Posted 16 Jul 2009 , 8:36pm
post #5 of

Imeet a lady that was making and sell smile face cookies and she got a letter from Eat N Park restaruant saying that she had to quit making them or she for find herself going to court. So she need less to say quit making them.

kokopuff Posted 16 Jul 2009 , 8:39pm
post #6 of

don't let that discourage you ! you can still do other things like fish,flowers,sports balls etc.(plain though,no sports team logo) things no one can copyright.

JaimeAnn Posted 16 Jul 2009 , 8:39pm
post #7 of

Yes it is illegal to sell anything you make in the image of a copyrighted , licensed character.

Also I am not sure where you live but in most states it is illegal to sell food items that are made in your home..

You have to have a licensed & inspected kitchen for selling food items. YOU must be licensed to sell food items. Some states allow you to get inspected and licensed from your home kitchen but most states do not.

Advertising on CraigsList will definitely get you in trouble if you are not complying with your local food laws.

GayeG Posted 16 Jul 2009 , 8:41pm
post #8 of

Yep Yep Yep - Illegal ={ They make them for the home baker to make their kiddies ... No sale ~ No way .. UNLESS .. You do like Pastry Panda said and get permission .. and usually when the DO give it to you, its for a "one-time" use ONLY! Not worth the trouble OR time!

Rose_N_Crantz Posted 16 Jul 2009 , 9:03pm
post #9 of

I know of a home baker near where I live who does not charge for her cakes/cookies, but instead she gets compensated by way of a donation. She will give you a list of how much the cake cost her (ingredients) and then she lets the person accepting the cake decide how much they want to donate. It seems to make sense to me because technically, you're not making a profit on someone else's image. You're simply making something to give to a friend. If you wanted to make a career out of this, I would not do this method as I'm sure most people will think ten dollars more than what it cost you would be a good price.

However I feel obliged to point out that this is an incredibly sneeky way to get around that law. I haven't spoken to a lawyer about this to see if that is legal, but I would think someone would find something wrong with that.

Who knows, you could do character cookies, but only by request. Don't advertise that you do, but if someone asks you could accept. What are the chances of a Sesame Street writer/illustrator being at a party that was serving some of your Elmo cookies? I had to deal with the same issue this summer over graduation photos. My bakery required the customer to get written permission from the photographer allowing us to reproduce their image on a cake. Most people laughed about it, but then one weekend one of the decorators got a call from a photographer who was VERY upset that we reproduced a photo he took without his permission. And I can understand why he would be upset. Which is why I personally don't reproduce anything that was made by someone else. I even feel kinda weird about making a cake from a pic I see on CC, I try to modify it a little so it doesn't seem like I was copying.

But I have a question about the Smiley Face cookies. Did that restaurant have ownership of the smiley face design? Or were they just trying to give some legal advice? If they don't have ownership, then they can't take her to court. Since it's not theirs. The original illustrator of the smiley face could. (I wonder who that is?)

KatieKake Posted 16 Jul 2009 , 10:25pm

I am not lawyer, but I don't think the donation ploy is legal either, no matter what you are guilty of reproducing a copyrighted image. You can do it for family members, I do it for my grandkids. You can not do it for people outside the family. The same thing holds with sewing, you can use fabric with the copyrighted images for family, but you can not sell anything made with the fabric.

costumeczar Posted 16 Jul 2009 , 10:37pm
Quote:
Originally Posted by Rose_N_Crantz

I know of a home baker near where I live who does not charge for her cakes/cookies, but instead she gets compensated by way of a donation. She will give you a list of how much the cake cost her (ingredients) and then she lets the person accepting the cake decide how much they want to donate. It seems to make sense to me because technically, you're not making a profit on someone else's image. You're simply making something to give to a friend. If you wanted to make a career out of this, I would not do this method as I'm sure most people will think ten dollars more than what it cost you would be a good price.

However I feel obliged to point out that this is an incredibly sneeky way to get around that law. I haven't spoken to a lawyer about this to see if that is legal, but I would think someone would find something wrong with that.

Who knows, you could do character cookies, but only by request. Don't advertise that you do, but if someone asks you could accept. What are the chances of a Sesame Street writer/illustrator being at a party that was serving some of your Elmo cookies? I had to deal with the same issue this summer over graduation photos. My bakery required the customer to get written permission from the photographer allowing us to reproduce their image on a cake. Most people laughed about it, but then one weekend one of the decorators got a call from a photographer who was VERY upset that we reproduced a photo he took without his permission. And I can understand why he would be upset. Which is why I personally don't reproduce anything that was made by someone else. I even feel kinda weird about making a cake from a pic I see on CC, I try to modify it a little so it doesn't seem like I was copying.

But I have a question about the Smiley Face cookies. Did that restaurant have ownership of the smiley face design? Or were they just trying to give some legal advice? If they don't have ownership, then they can't take her to court. Since it's not theirs. The original illustrator of the smiley face could. (I wonder who that is?)




If you receive any kind of monetary compensation (donations included) for goods, you're selling them, and it's illegal if you're not licensed or complying with whatever food laws are in place in your state.

As far as what are the chances of a person being at a party with a copyrighted cake, who knows? I took a phone call from the father of a previous client who was buying a baby shower cake. He told me that his wife wanted a classic Pooh theme, and I told him that I could do a woodsy scene, but nothing exactly from the illustrations because it's copyrighted. He said "oh, that's good...I'm a copyright attorney. I'll have my partner tell you some stories about that kind of stuff." icon_surprised.gif You can never tell who you'll run into...

JaimeAnn Posted 16 Jul 2009 , 11:05pm

Accepting any money for any food you prepare in your home (ie: donation, compensation for ingredients) Is ILLEGAL.

You can NOT even have someone pay you for the ingredients! The only way around that is for them to buy the ingredients themselves and you make the cake for FREE!

Some states are much harder on offenders (California) there can be Huge fines and limit your abilities to become legal in the future.

It is just a bad idea to try to skate around the law. Not to mention if someone was to get sick after eating one of your items ,even if your item wasn't what made them sick. You are the easy target..Unlicensed, uninspected. and could not only face state and county fines but you could be sued any judgment against you could affect your future drastically.

I do know that here the health department has lower level employees watch CraigsList and contact people on there as potential clients.. BAM BUSTED!

California has also banned Bake sales and Home made items at farmers markets. Schools no longer can have bake sales either.

tigerhawk83 Posted 10 Aug 2009 , 3:01pm

I agree with the copyright statements. But, as you may already know, in some states the law DOES allow home baking. Iowa has such a law. These are excerpts from a publication from the Iowa State Extension Publication PM1294:

Exempt from Licensing
Home-based firms that only sell non-potentially hazardous
food (including bakery products) on a retail basis
are exempt from licensing.

People can prepare and sell cookies from their homes
for sale to the general public. If they sell cookies or
other non-potentially hazardous bakery products to
restaurants, grocery stores, or to an institution, then the
preparer must be licensed as a food processing plant.


Here is a link to the entire document - http://www.extension.iastate.edu/Publications/PM1294.pdf

redpanda Posted 10 Aug 2009 , 4:58pm
Quote:
Originally Posted by JaimeAnn


California has also banned Bake sales and Home made items at farmers markets. Schools no longer can have bake sales either.




Is it all bake sales in California, or just school bake sales? The only thing I was able to find regarding a ban on bake sales in California is that they were not allowed in the schools due to nutrition standards.

I hope that this is the only limitation. I've seen an awfully large number of bake sales for other types of groups. (Also at universities, which are technically schools, but not covered by the school nutrition requirements.)

cindy58 Posted 11 Aug 2009 , 2:46pm

Hmm -- I just came across this custom cookie site selling cookies that look very much like Elmo to me --

http://www.somethingsweetcookies.com/custom-orders.html

I found this while I was looking for that Martha Stewart cookie recipe where she adds 1 T. Cognac to the recipe, and her guest was Dani Fiori, in-house stylist and owner of couture event accessories company Sweet dani B.

BTW, has anyone tried/liked the addition of the Cognac to the cookie recipe?

7yyrt Posted 11 Aug 2009 , 3:32pm

There is one smilie face that is copyrighted. I think it's the one with the oval eyes.
Not all are.

CutiePieCakes-Ontario Posted 11 Aug 2009 , 4:35pm

What about getting a cake topper from a party supply site? For example, Ty's Toy Box sells cake toppers for many different children's characters. If you offer to buy them on their behalf, the down side is that (a) you have to wait for it to arrive (you may have time constraints), and (b) if the client cancels, you're stuck with a cake topper you might not be able to use (wasting your money). I would have them purchase it, and deliver it to you before you need it.


cindy58 - It has to be Elmo - there is no obvious alteration to say it's not. The person who owns that company may have gotten a trademark use licence already. Hard to say. But if not, they could be in big trouble!

HTH.

jules5000 Posted 17 Aug 2009 , 2:42am

No, you can't do licensed characters for money unless you would have got an agreement from the copyright owner.

Missouri is another state that you can get licensed in your home, but it has to be a separate kitchen unless you are set up as a Bed and Breakfast from the beginning and you live in the same house.

I would not take any donations either. The person who suggested that you could have them buy your ingredients and you make the cake free would be the only way. I have tried to set up a home cake decorating business and advertise in different places, but so far have not had any cakes go through. If I do, I have a friend who has a licensed Kitchen about 2 blocks from me and she said that I could use her kitchen so I would be legal. Technically as far as I know the only thing I have to do is mix up the cake and anything that goes on it and I could do the decorating at home.

I have a question that is unrelated but someone brought it up in her answer so I am hoping that she might know the answer to this. She said that you can not sew a licensed material into a garment or anything else for money. If they brought you the material, pattern and everything to make it wouldn't you just be charging them for labor? There wouldn't be a problem with that would there? Hope we have answered the original question ok?

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