I Am Sure This Has Been Covered Before, But Copywright . .

Business By sugarsugargal Updated 8 Sep 2009 , 12:30am by modthyrth

sugarsugargal Posted 1 Sep 2009 , 9:47pm
post #1 of 40

are you likely to really get sued ? what is the deal, you say no and thats that.... ?

39 replies
sugarsugargal Posted 1 Sep 2009 , 9:48pm
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sorry should have been clearer, i mean copywrighting characters etc . . batman/kung fu panda or the like . .

leah_s Posted 1 Sep 2009 , 9:58pm
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If its a Disney character, then yes, odds are significant. Other than that, its an ethical issue also. Someone else owns the "visual property." You copying it and selling that image is just plagiarism. Not cool.

You can create a cake "setting" and place a licensed character toy on the setting. Creating a night scene with a road, something kind of dark and placing the bat man toy on it is fine. The company who made the toy paid a fee to the owner of the copyright and is therefore licensed to produce and sell the toy. You can buy the toy and put it on whatever you want.

And yes when a customer asks for it, you sy "No" and then explain what you CAN do.

sugarsugargal Posted 1 Sep 2009 , 9:59pm
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so any horror stories about actual cases going to court, you mention Disney ? . . thanks for the info icon_smile.gif

CutiePieCakes-Ontario Posted 1 Sep 2009 , 11:45pm
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One thing I've wondered about the copyright thingy ...

When a TV decorator (say, Duff of Ace of Cakes) uses a copyrighted item (say, Charlie Brown at Hallowe'en) for a client, does he/the bakery have to pay a copyright? Does the client? Does he/the bakery have a permanent copyright agreement?

I would think that, even if Duff (or his accountant) didn't think of this, the producers would have.

Hmmmm.

BlakesCakes Posted 2 Sep 2009 , 12:55am
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Anyone can request a copyright release.
In some cases, it's granted without strings or, instead, with a payment schedule attached.
In other cases, the NO comes with a less than friendly reminder to not do it.

Major corporations who license those characters for use, like to DecoPac, are less likely to grant a release. Some places like colleges, or sports teams, don't seem to get too upset about it, as long as they're asked.

Rae

Motta Posted 2 Sep 2009 , 5:23am
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I don't think the companies with the copyright on these characters make a big fuss about pursuing a lawsuit against those who makecakes, cookies, etc. because the items are usually made for a child. THat child has likely demanded his/her parents buy all kinds of merchandise for that character and the cake/cookie/cupcake just fans the flames of that desire. The more the kid likes Elmo, the more Elmo stuff he'll buy. Just my thoughts....

prterrell Posted 2 Sep 2009 , 6:10am
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Whether or not it is likely, it just isn't worth the trouble and cost, in addition to being unethical.

indydebi Posted 2 Sep 2009 , 12:24pm
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Quote:
Originally Posted by Motta

I don't think the companies with the copyright on these characters make a big fuss about pursuing a lawsuit against those who makecakes, cookies, etc. because the items are usually made for a child. THat child has likely demanded his/her parents buy all kinds of merchandise for that character and the cake/cookie/cupcake just fans the flames of that desire. The more the kid likes Elmo, the more Elmo stuff he'll buy. Just my thoughts....



Disney went after a family who put Pooh Bear on their child's tombstone. The onlyreason they backed off is the bad publicity that resulted.

From a legal standpoint, they HAVE to pursue everyone they can or they lose their right to pursue anyone.

There's a thread on here somewhere that shares a story of a CC'er who was in a Wilton class with a Disney employee, who shared they have an entire division whose sole job is to seek out and find those who are infringing on their copyrights.

Taking the attitude of "Oh, I don't think they'll REALLY go after little 'ole me" is dangerous.

sugarsugargal Posted 2 Sep 2009 , 12:40pm
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thanks guys for your input, i am wondering whether i need to take some photos off of this site ?

alidpayne Posted 2 Sep 2009 , 1:05pm
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And honestly, why shouldn't they "go after" those that use their copyrighted images without permission? I know as a decorator it is hard to explain to people that you can't make them a Dora cake, and the thought of losing the sale is tough, but how would you feel if you created a character and then someone else sold it without your permission and you got nothing? Say what you will, but you know you would be angry.

I know I would be angry. My husband wrote a song once (he is a musician) and a "friend" then began playing that song with his band and claiming it as his own. We still aren't over that & it was probably 15 years ago. He didn't get famous with it or make a bunch of money, but still... the principal of the thing.

mtaccts Posted 2 Sep 2009 , 1:15pm
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I was just thinking about this same thing last night while I doing some baking. Tattoo artists use copyrighted images all the time - characters, logos. etc and you never hear about any of them being sued. Their art is permanent - ours is gone in a few bites icon_smile.gif

indydebi Posted 2 Sep 2009 , 1:16pm
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Quote:
Originally Posted by alidpayne

Say what you will, but you know you would be angry.




And all you need to do to prove THAT point is find any thread where some CCer cakes are found on someone else's website with no credit to the CC'er who made the cake.

It has always fascinted me on here that there is an attiude of "I should be allowed to make Mickey Mouse all I want and no one should say anything about it, but don't you DARE use one of MY cakes in your pics gallery!"

There are also the threads in which folks mention how "hurt" they are when someone duplicates their cake and doens't mention where the inspiration came from.

But using Mickey Mouse to make a profit? Oh shoot, THAT shouldn't be an issue! icon_rolleyes.gif

indydebi Posted 2 Sep 2009 , 1:18pm
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Quote:
Originally Posted by mtaccts

I was just thinking about this same thing last night while I doing some baking. Tattoo artists use copyrighted images all the time - characters, logos. etc and you never hear about any of them being sued. Their art is permanent - ours is gone in a few bites icon_smile.gif




Do you know if they have the licensing? Or are you just assuming they don't?

Carolynlovescake Posted 2 Sep 2009 , 11:44pm
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I have a friend who is a tattoo artist and trust me she is well aware as are the other artists in their shop about copyright laws. She always gets copyright approval prior to it.

Many other artists in her field don't and trust me, just like our field of cake decorating some won't go near an obvious copyright with out permission or just flat out won't while others give the issue the middle finger and go ahead with "they won't do anything to little old me."

Disney doesn't care if it's a child's tombstone, a cake, a tattoo, a preschool with wood cut outs on their door for easy identification for children to remember their room, or if you are doing a mural in a child's room for pay... if they find you they will go after you as will Nickelodeon, Loony Toons, Universal Studios, Marvel (which Disney just bought), NFL teams, NBA teams, NBL teams etc

The law is the law on this and there are no gray areas and rarely are exceptions made. Just like the legal home kitchen issue you either choose to break the law or you don't once you know about it and if you don't know the law it won't excuse you from it if you break it.

Please everyone who's new to this discussion, don't fool yourself thinking large companies will not go after random cake lady's. They can, they will and they have. Some members over the years here have shared their stories about getting caught.

indydebi Posted 3 Sep 2009 , 12:31am
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Hubby adds to this conversation that when any large corporation goes after "the little guy", they send a BIG message to everyone else:

"If they'll go after some little gramma cookie baker, what do you think they'll do to ME?" icon_surprised.gif

With the easy availability of things via the internet, look at the record companies. They went after teenagers and WON.

This ain't no joke, folks. Do NOT just to justify it in your own head.

Motta Posted 3 Sep 2009 , 4:03am
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Thanks for the advice. I just assumed many cakers weren't getting permission but perhaps they had it....?? I've seen numerous websites with character cakes and always wondered how they got away with it. I won't leave myself exposed - I'll get permission.

Carolynlovescake Posted 3 Sep 2009 , 4:49pm
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Quote:
Quote:


I just assumed many cakers weren't getting permission but perhaps they had it....?? I've seen numerous websites with character cakes and always wondered how they got away with it.




Motta,

Over the years the majority of people I have known in this industry took the attitude of "I'll never get caught." and some of them were.

Copyright holders can sue you for what they feel their image is worth. That means what someone might say is $30 for the use of their graphic could be $300,000 to another.

What most people don't take into consideration is this just isn't for images like cartoon characters but also for use of photographs, words or phrases from books/magazines etc.

In reproducing copyrighted figures, it does not matter if the character is drawn by hand, added using an image projector, put on a cake with a computer cake machine, or by creation with fondant/gumpaste. If the item carries one of the following symbols then it is protected ©, ®, â¢. Although most copyright materials will contain either © or ® or â¢, U.S. law does not require it.

Another myth that usually comes up in these threads is "can you alter the image enough for it to be different"... the answer to that is "if you change a character's color and name (making Elmo in blue and calling him Zelmo, or making Mickey and coloring him red and pink and calling him Dickey) and someone still looks at it and calls it by the true character name you have broken the law.

I have been pleasantly surprised with some of the people I've asked for permission from that have granted it. When I contacted an NFL team to use their logo they wrote back via certified letter "you are more than welcome to use our logo freely, we only ask that you submit pictures of your work so we can check them for quality control purposes to ensure you are not incorrectly creating them." Oddly enough, another NFL team pretty much told me "under no circumstances can we grant you the ability to create our logo in the form of edible art".

I have learned it's better to ask permission in this area of cake decorating, because what's the worst they will say... "no". Then you tell the customer "sorry they said no, I tried. Let's get the colors down and we'll find a way for you to get that logo onto your cake with out breaking the law." - This disarms the customer, lets them know I'll work to get them a cake they will still like but let's them know that I'm a law abiding cake decorator.

GAH! I wrote a huge reply and didn't mean to. Sorry. [/u]

overindulged Posted 3 Sep 2009 , 5:39pm
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What if you are not in the cake business, and you just made a character cake for your son/daughter and posted in your blog or Facebook or CC gallery, can you get in trouble for that?

CakeMakar Posted 3 Sep 2009 , 5:49pm
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I don't know about creating your own cake, but when you buy the Wilton pans you are allowed to make them for your own personal use.
I don't know the law, but I think it's okay to make and post your kid's birthday cake. However, if you're posting 20 character cakes and they're all "for family," someone's gonna notice.

indydebi Posted 3 Sep 2009 , 9:04pm
post #21 of 40
Quote:
Originally Posted by Carolynlovescake

Another myth that usually comes up in these threads is "can you alter the image enough for it to be different"... the answer to that is "if you change a character's color and name (making Elmo in blue and calling him Zelmo, or making Mickey and coloring him red and pink and calling him Dickey) and someone still looks at it and calls it by the true character name you have broken the law.


I've shared this story before: My next-door neighbor works for Jim Davis, creator of Garfield. Mr. Davis is very protective of his creation. A man thought he could make Garfield in blue and be ok. Mr. Davis took him to court and won.

CakeMakar Posted 3 Sep 2009 , 9:21pm
post #22 of 40
Quote:
Originally Posted by indydebi

Quote:
Originally Posted by Carolynlovescake

Another myth that usually comes up in these threads is "can you alter the image enough for it to be different"... the answer to that is "if you change a character's color and name (making Elmo in blue and calling him Zelmo, or making Mickey and coloring him red and pink and calling him Dickey) and someone still looks at it and calls it by the true character name you have broken the law.

I've shared this story before: My next-door neighbor works for Jim Davis, creator of Garfield. Mr. Davis is very protective of his creation. A man thought he could make Garfield in blue and be ok. Mr. Davis took him to court and won.




Though apparently he doesn't mind it for personal use. icon_biggrin.gif
http://bakerella.blogspot.com/2008/05/this-takes-cake.html

playingwithsugar Posted 3 Sep 2009 , 9:24pm
post #23 of 40

Just an FYI - Disney just bought up most of the rights to the Marvel characters - Spiderman, Hulk, etc., so think twice before telling anyone you sold a Marvel characters cake.

Theresa icon_smile.gif

Carolynlovescake Posted 4 Sep 2009 , 4:04pm
post #24 of 40
Quote:
Originally Posted by myrak

What if you are not in the cake business, and you just made a character cake for your son/daughter and posted in your blog or Facebook or CC gallery, can you get in trouble for that?




If you do not have any exchange for services and you made it free and clear you are 100% ok to post it on the internet.

I stressed the word "any" because that means exchange of money for it, them providing you the supplies and you baking the cake, you doing it for free and them tipping you etc. all these things are legal business transactions.

It's when you post pictures of your character cakes with pricing to sell is when you cross the line.

I blog post of "look at my son's totally awesome Superman character cake I made for him, 3,589,454,234,230 stars later it was finished!" is not going to get you sued.

Quote:
Originally Posted by IndyDebi


I've shared this story before: My next-door neighbor works for Jim Davis, creator of Garfield. Mr. Davis is very protective of his creation. A man thought he could make Garfield in blue and be ok. Mr. Davis took him to court and won.




I was waiting for your story. I figured it wasn't mine to retell and knew if you felt inspired you'd share it again. thumbs_up.gif

txnonnie Posted 4 Sep 2009 , 5:59pm
post #25 of 40

I made a batman cake for my grandson using the batman figures and car. However, I did put the symbol on the cake. No charge for anything, I made everything since it was my grandson. Am I safe in doing this?

Also how do you know who to contact to ask permission?

TexasSugar Posted 4 Sep 2009 , 7:52pm
post #26 of 40
Quote:
Originally Posted by myrak

What if you are not in the cake business, and you just made a character cake for your son/daughter and posted in your blog or Facebook or CC gallery, can you get in trouble for that?




If you are making the cake for your child or a neighbors child and do not get anything at all in return then you are fine. Copyright issues come into effect when money changes hands.

I can sing (be it badly) any song I want in my own home, but if I was to put it on a cd and try to sell it, then I am going against copyright laws.

I can paint a Disney character on every room in my house and wjll it might be weird it would be with in the law. If I was paid by someone else to paint Pooh in their nursery, then I am breaking the law.

We have to remember just because you see a cake picture on the internet it does not mean that money, goods or other services changed hands when it was created. I have a ScoobyDoo cake in my pictures here that I did for my nephew, free of charge. It is perfectly fine to do a cake completey free and to post the pictures of it.

Also sometimes people will do the cakes because they just do not know about the laws, do not understand the laws or just flat out doesn't care. It really doesn't matter. It won't hold up in court to say, well so and so did it, so I thought I could.

I'm guessing, so I could be wrong, but I seriously doubt that Duff or the people at Food Network would show the cakes that do contain copyright images with out getting the proper paper work. Even if Duff was some how clueless about the laws I'm pretty sure Food Network knows all about them. I'd bet the companies give him permission so they can get some advertising out of it.

Writecakes Posted 4 Sep 2009 , 8:10pm
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Okay, just to be clear then: You can legally create a "scene" for the character, and place toys of that character (action figures, etc) on top of the cake and it is fine? It's only illegal when you create your own version of that character through fondant figurines, piping, etc? Thanks in advance for the clarification icon_smile.gif

asmith Posted 4 Sep 2009 , 8:13pm
post #28 of 40

On last night's Ace of Cakes during the credits it was noted that the Humpty Dumpty was copyrighted.

amberkw Posted 4 Sep 2009 , 8:46pm
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WHEW! I just read all the above. Serious business it is. I am so glad I know more. Its not worth losing a business you put your heart into. My cakes taste just as good w/ out the characters that could put me in jail, or that might make me lose my kids college funds. As for now, I will still make character ones for my family. And my family IS big. Guess I'll get it where I can. icon_smile.gif

Carolynlovescake Posted 4 Sep 2009 , 8:46pm
post #30 of 40
Quote:
Originally Posted by txnonnie

I made a batman cake for my grandson using the batman figures and car. However, I did put the symbol on the cake. No charge for anything, I made everything since it was my grandson. Am I safe in doing this?




If you don't exchange any goods for services you are in the clear.

I can do a Tinkerbell cake for my daughter and blog about it. How I did it, pictures of it's progress along the way and everyone at the party eating it.

I can not take a paid order for a Tinkerbell cake. I can not have someone provide just the ingredients for it. I can not have someone provide just the character pan. I can not have someone buy cake pans or other cake toyss unrelated to this cake in compensation for it. I can not take a tip, a gratuity, a cookie or anything else as compensation for the cake.

Quote:
Originally Posted by txnonnie

Also how do you know who to contact to ask permission?




What I have done is have my lawyer write the letter if it's to a large company. He pretty much will call up and ask where to send a letter requesting permission for use of a copyrighted image.

If it's a local photographer (usually senior pictures are the biggie) I then make a call and ask. If they say yes (have yet to hear a "no") then I ask them if I can drop by with a form for them to sign for a one time use of the picture. I walk in with my form and a dozen cupcakes for him as a thank you.

I've had a few follow up with their own letter, "I grant _________ of _______________ to reproduce any of my photo's upon the request of our mutual customers to be replicated onto a cake or any related medium necessary in relation to a cake order."

Because of taking the step to care about copyright laws and the use of other people's work only with their permission I have gained a reputation with many local and well reputable people in the photography industry. The best part is, I am exclusive with most of them so when a bride asks about referrals for things like DJ's, florists, and cakes I am often told "Oh John Doe photography said you are the only decorator they trust."

_________________



I've had a few people on here PM me telling me my words mean nothing because I don't post pictures. They have had no clue what I've been through with copyrights (although it was the copyright/ownership of photo's), and battles over it. It's not fun, it's not pretty, and it's not cheap.

Back in the 90's I had pictures taken by a competitor baker in town and used on her site as her own work. I played nicely at first asking her to take them down, she refused and told me where to go because it was on the internet which meant it was for anyone's use.

It got ugly, lawyers got involved, she wouldn't back down so it went to trial. It took me getting every bride who's cake picture was stolen to come to court to testify it was there cake and bring their wedding photos as proof.

When the judge saw the witness list and asked why we had 30 witnesses my lawyer stated "your honor, my client needs to prove she owns the pictures taken from her website, she has her own picture and the brides are planning to bring their wedding albums to show it's the same cake but by a different photographer."

The judge looked at the defense and stated "is your defense she took the pictures because they were on the internet and thought she could or that she owns the pictures." "Well a bit of both". The judge ordered her brides to do the same... not a single bride showed up with pictures of my cakes but they had pictures of the cakes she made based of the bride picking my pictures from her website. They paled in comparison in my own humble opinion and each bride of hers stated âwe thought that was her picture and that was her work when we looked at her website. She promised us âthat exact cakeâ and even though we ended up with a decent looking cake it definitely wasnât the same cake or the same level of work but not THE cake we fell in love with. It definitely put a damper on our day for a few moments.â

Initially I didn't want to go to court but as has already been said "if you don't go after each one you know about you loose the right to go after any". My lawyer told me that's business, you don't pick and choose who to go after. You have to go after all or you can't go after one."

It was the single most horrible experience I went through as a business owner. When it was all said and done he told me that situations like this would only get worse as the internet grew and he was right. His best words to me were "don't post your work on the internet, period." It's been the better part of 12 years now and to this day I don't post pictures that I don't want to risk being stolen and reposted as someone's work anywhere on the internet. I have my photo album for viewing, and I have back ups of everything on disk.

This is why I fully support copyright laws and abide by them because I know what it's like to have my own work taken from me and pawned off as the work of another. I know what itâs like to own something have it taken and recreated with out permission and not done in the same quality and level of work my item was done it.

I did it again! Sorry for the long post. Sheesh! Some posts I make here make the unibombers manifest look like a golden book bedtime short story. icon_lol.gif


Hope I didn't put ya'll to sleep.


___

Edited in: I had a paragraph that some how went missing. The final judgment wasn't pretty. She lost. She had to pay court costs, legal fees for me. The bride had a court appointed auditor waiting at her shop when she got back to audit her records before she could alter any of them and find out exactly how many cakes she did based off my pictures. Thus a royalty fee was tallied that she was ordered to pay me.

This did hit the local news. The person who wrote the article was very to the point and unbiased. It didn't lean to either of us with favoritism. Many of her customers didn't return to her. A good portion came to my shop to try me out just out of curiosity (I'm sure she painted me a shrew). Many of her brides canceled on her and came to me because they were afraid their cake was really one of mine. Four months later she went out of business while mine picked up.

I don't know what happened to her. I never got my royalty payments either (I know it's because she couldn't afford it). I was told not to worry because it's listed with the courts and if she ever comes into money it's going to show up and the IRS gets their tax cut, then I get mine. It was never about the money for me, it was using my work as her own.

The last I heard she was leaving the state of California because she wanted to continue baking and decorating and couldn't from her own home and wasn't going to risk being caught doing anything illegal again because she didn't want to chance getting caught and loosing in the court system twice in the same state.

I have to admit... every time a thread showed up here like "did this person steal your cake picture!" I always checked to see if it was her. icon_confused.gif

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