If you take the steps to prove due diligence trying to locate the photographer/shop and can't due to them being deceased/retired I'm guessing you would be ok. You can show them you made all possible attempts to locate them in the event they are still around and find out and are upset.

Also I'd like to say I was honestly ignorant to thinking of even asking to use a photo as an edible image until my issue came up.

My lawyer sat me down and went through ever possible scenario of where a copyright would nee permission.

His research state that doing an exact replica of a cake is impossible due differences in styles and decorating but it wouldn't hurt to ask to replicate the other decorators design an get permission.

The best advice I can give to anyone confused and unsure of all this copyright stuff would be to take the time and talk to a lawyer. Start calling and ask for free consultations with them. Make a list of questions andd see one or all for your free time with them an learn from what they have to say. The hardest part is not hearing what you want but having to accept what you hear. Ask them what you stand to loose if you are caught and worst case scenario comes into play and you are sued. From there weigh your pros and cons and decide what you want to do.

You are welcome!

The down side is that I've been through the trenches and back and have bad experiences to share but the up side it hopefully by sharing them it helps others not have to go through it.

I did think about doing watermarks on them and posting but I know of a few to many cases where people are so desperate to call a cake their own that they have remove the watermark. It's just a chance I don't want to take nor go through again so for me it's just easier to keep them off the internet.

No no no no no. It doesn't matter if you didn't sell the cake. If you copy a character in cake form without permission, you've violated the copyright.

Now, if you use a Wilton character cake pan for personal use only (didn't sell it), that's ok, because Wilton has negotiated for the limited copyright release on behalf of the home bakers who use the pans.

But if you make a character cake of your own design, even if it's just for your own family's consumption, that's copyright infringement. Post on facebook or the CC gallery at your own risk.

Regarding changing a character to avoid copyright infringement--in theory, yes, you can. Copyright infringement cases are analyzed on a case by case basis, and there's no bright line rule. Change it enough, and it's a new design, with the minimal level of creativity necessary to create a new work of art. However, it's likely that even if you manage to change something just enough to avoid copyright infringement, you'll still be on the hook for trademark infringement.

Yes, I'm an attorney. No, I'm not practicing. But when I did, I focused on IP issues.

17 USC § 302 and 303 govern the question you're asking (depending on whether the work was created before or after January 1, 197. Here's the full text:

http://www.copyright.gov/title17/92chap3.html

In general, the duration of the copyright is now for the lifetime of the artist plus 70 years.

If the work is a work for hire (a company hired an employee, told that employee what to do as a part of his employment, the work created is owned by the company and is considered a work for hire. All the current creations of the Disney artists fall under this category, for example), the copyright lasts for 95 years after the first publication or 120 years from the creation, whichever runs out first.

So yeah, that 50th anniversary photo was definitely still under copyright protection, even if the photographer is now dead. Is anyone going to bust your cake balls over it? Almost certainly not. There's also the possibility that the bride and groom bought the copyright along with the photo, but that is unlikely and would depend on the original contract with the photographer.

Interesting because my attorney told me the exact opposite after researching it.

Do you know where I can find this so I can show it to him to look into for me?

I'm basing my analysis on the US copyright code and the case law nuancing the four prong analysis of what constitutes fair use. I'd be keenly interested to know why your attorney thinks it *would* be legal. That's certainly not what they teach in law school, and I've never read any case law that would suggest that fair use would apply in a cake decorating situation.

Here's a good place for laypeople to start, an article on 10 Myths about Copyright. Specifically, read #2, "If I Don't charge for it, it's not a violation":

http://www.templetons.com/brad/copymyths.html

17 USC (the United States Code) contains the copyright statute, and the DMCA (digital Millennium Copyright Act) further nuances it (though is more about copyrights in the electronic age, not cakes of course!)

Will you be caught? Probably not. Will you be sued? Probably not. Is it legal? No. Fair use does not create an exemption for personal purposes. It's a four-part test, and the commercial/non-commercial educational is only one of the four parts. You're going to get screwed on the other three parts (nature of the work, amount of the work being used, and the effect on the work's value). And actually, you're not all that clear on the first element of the test, since it's not for educational purposes. Wikipedia has a pretty good section on the Fair Use doctrine, and if you read it carefully, you'll get a good understanding of why making your kid a Dora birthday cake doesn't fall under fair use. http://en.wikipedia.org/wiki/Fair_use

Companies are serious about protecting their intellectual property. I have a friend who took one of the BIG comicon bags and chopped it up and made a smaller (much cuter and more useful) version of the bag. I actually believe this to be a valid use based on the doctrine of first sale. Didn't stop Warner Brothers from slapping her with a cease and desist letter. It's in the best interest of the companies to be over-reaching and zealous in protection of their copyrights, because they know they can intimidate the little guys, and that people won't pay to defend themselves (can't!) even if they're likely to win. Sucks, but that's how our system works. If you use a copyrighted, licensed, or trademarked likeness, even for personal use, even if it's a valid use, you're at risk. Making character cakes isn't even a valid use.

Now, if you're making a parody, doing social analysis in cake form, etc, we have more issues to consider. Little Jimmy's 5th Spiderman birthday cake doesn't fall into any of those categories. That's simply unauthorized use of a copyrighted and trademarked image.

If you look at it and you say, "Oh, a Twilight cake." then you've probably stepped over the line and are infringing on the dust jacket design, which is classified as a PGS (Pictoral, Graphical, or Sculptural) work. Are you going to get in trouble for it? Probably not. And your attorney might argue that the mere presence of an apple does not contain the minimal creativity necessary to get copyright protection. But you'd probably lose (that case-by-case analysis, no bright line rule) and do you really want to pay the attorney fees in the hopes that you'd win?

Now, what you could do is pick out some other element from the book and create your own design. Copyright only protects the *expression* not the *idea*.