Trademark/copyright Infringement

Business By costumeczar Updated 24 Feb 2010 , 12:07am by Dolledupcakes

costumeczar Posted 11 Nov 2009 , 12:30pm
post #1 of 27

In case anyone was wondering, I found the section of the copyright law that gives the trademark owner the right to confiscate your equipment that you used to create the copyrighted images. I've heard horror stories of pans and other cake equipment being confiscated, so here it is: http://www.bit.ly/pgfBj

26 replies
rosiecast Posted 11 Nov 2009 , 7:04pm
post #2 of 27

Ohh scary!! But that's only for paid cakes, right? I used the baby bottle pan form Wilton's for my friends baby shower and it was completely free, Not even the ingredients did I charge for.

Thanks so much for posting this.

costumeczar Posted 11 Nov 2009 , 8:00pm
post #3 of 27

If you don't get any payment for it you don't have to worry about anyone confiscating your pans and oven!

CakeForte Posted 12 Nov 2009 , 5:00pm
post #4 of 27

OMG they cut off your hands and everything? That's a bit extreme.

costumeczar Posted 12 Nov 2009 , 5:24pm
post #5 of 27
Quote:
Originally Posted by CakeForte

OMG they cut off your hands and everything? That's a bit extreme.




I think they let you keep your hands, but they might issue a restraining order against them so that you can only use them for approved activities icon_wink.gif

Steelgoddess Posted 12 Nov 2009 , 5:48pm
post #6 of 27

Hmmm I wonder if every single person does that on this forum,

kurtb Posted 12 Nov 2009 , 6:19pm
post #7 of 27
Quote:
Originally Posted by rosiecast

Ohh scary!! But that's only for paid cakes, right? I used the baby bottle pan form Wilton's for my friends baby shower and it was completely free, Not even the ingredients did I charge for.

Thanks so much for posting this.




Free vs. Paid makes no difference when determining Copyright Infringement. Just ask anybody that has run into problems with the recording/music industry for sharing music/movies online - for free.

With that said, do I think you would run into problems giving away a baby bottle cake for a friends baby shower? NO, but that decision is ultimately up to the copyright holder, in this case Wilton. Will Wilton even know that you made and gave away the cake? Probably not.

Read the documentation that came with the pan, it may tell you what that particular pan can be used for. I do know that nearly all of the "character" pans that Wilton sells are specifically for Personal/Home use (and in the eyes of the law, giving it away does not remove it from the realm of "commercial").

rosiecast Posted 23 Nov 2009 , 5:47pm
post #8 of 27
Quote:
Originally Posted by kurtb

Quote:
Originally Posted by rosiecast

Ohh scary!! But that's only for paid cakes, right? I used the baby bottle pan form Wilton's for my friends baby shower and it was completely free, Not even the ingredients did I charge for.

Thanks so much for posting this.



Free vs. Paid makes no difference when determining Copyright Infringement. Just ask anybody that has run into problems with the recording/music industry for sharing music/movies online - for free.

With that said, do I think you would run into problems giving away a baby bottle cake for a friends baby shower? NO, but that decision is ultimately up to the copyright holder, in this case Wilton. Will Wilton even know that you made and gave away the cake? Probably not.

Read the documentation that came with the pan, it may tell you what that particular pan can be used for. I do know that nearly all of the "character" pans that Wilton sells are specifically for Personal/Home use (and in the eyes of the law, giving it away does not remove it from the realm of "commercial").




Really? I thought since is for personal not commercial use and I don't sell cakes AT ALL that wouldn't include me. But to play it safe I might give them a call. Don't wanna get my hands cut off. LOL

Thanks,

snarkybaker Posted 23 Nov 2009 , 6:21pm
post #9 of 27

I am going to throw this into the mix, simply because I have been doing a lot of reading about IP law lately. Cakes, most likely, fall under the " fair use" catagory, which cover the replication of some copywrighted images in a transient medium that is not likely cause confusion or harm to the copywright owner.

Part of the reason music copying is a big problem, is that by downloading music, you are likely to deprive the artist of the SALE of said music.

However, because cake is transient (meaning it dissappears quickly), and because many characters don't have purchasable options, you could theoretically, actually use them. Let's say, for example I wanted to make a little einsteins cake, but that Disney didn't sell either food safe Little Einstein toys, or an edible image. It would be fair use for me to make a cake with the little einsteins on it. I am not depriving Disney of a sale of a toy, image or cake. I most likely would have sold the cake anyway, etc. Copywright infringement does have to show harm to the copywright holder.

The principal of fair use states that the public has certain rights to intellectual properties, as long as they are not depriving the holder of any benefit conferred by the ownership of the copywright.

That is why you can look on virtually any famous decorators site and see copywrighted charcters/images, for example:

http://www.cakenouveau.com/cakes4.html

Likewise, making someone a Chanel Bag cakeis not likely to prevent them from buying a Chanel Bag..

It's a grey area. We use common sense when using copywrighted material, and most times companies are pretty good about giving permission....except Disney of course.

cylstrial Posted 23 Nov 2009 , 6:50pm
post #10 of 27

Very well said, Snarky!

CakeForte Posted 24 Nov 2009 , 1:03am
post #11 of 27

Piggy backing off of what Snarky said. I'm not sure if you have heard of Girl Talk. It's a "band" (really only one guy that uses his computer as his band) to make "original" songs.

He's controversial because he samples popular music that is within the "fair use" rights (which is a tiny percentage of the song, less than 10% I think). With those small bits of sample he mixes them all together and makes a complete new song, thus blurring the lines of copyright infringement and fair use...because technically, he is using the legal amount allowed per song before it becomes "music stealing".

He doesn't sell his actual creations, you can download them for free; he makes money on doing appearances and merchandise

Anyway, just goes to show how complicated it is, YET there are still loopholes.

-K8memphis Posted 24 Nov 2009 , 4:06am
post #12 of 27

Parodies of music are allowed--it's not infringment. So I always wondered about a Louis Vuitton purse cake being more or less a parody of a LV purse. 'Cause of course it's not a purse.

kurtb Posted 25 Nov 2009 , 10:45pm
post #13 of 27

re: Girl Talk - There is no set % for "fair use". Also, I it interesting that he has only used record labels that focus on potentially illegal mashups one of which is even named "Illegal Art". Eventually, I imagine his music will be tested in the courts, but the record labels probably do not want to spend the time or money to litigate. It is easier for them to go after "cut and dry" p2p file sharing cases.

Remember, it does not make it OK, just because other people are doing it and have not been sued (or charged/convicted/etc.), regardless of how famous they are.

But more on topic...

A character cake, in the examples that we are discussing, does not fit any standard for "Fair Use" that I am aware of.

I will agree that cake is a "transient medium", but I have problems with how you have defined "fair use"

Quoting from www.copyright.gov (the US government's copyright website)

Quote:
Quote:


...This right is subject to certain limitations found in sections 107 through 118 of the copyright law (title 17, U. S. Code). One of the more important limitations is the doctrine of fair use. The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work




So you may get by with using the character in a classroom setting while teaching a specific skill, but not for general use in a cake shop.

If you have something that I can look at that defines fair use in the way you described, I would love to check it out.

Again, I go back to, will you have a problem with doing it for your family or friends? Probably not.

citygirlcakes Posted 21 Feb 2010 , 11:27am
post #14 of 27

I just received a "cease and desist" letter from the nice folks at Chanel as I had 5 handbag cakes pictures (with the Chanel logo) on my website. I am a SMALL operation (just me, out of my home, maybe 3 to 5 cakes/week... I was totally stunned that they found my work. Not that I was trying to hide - I actually have never really thought about copyright infringement - just made the cake the client requested. I have since removed all other cakes that could pose this same problem and will become creative as other have done to get around the issue. Just not worth the hassle - and I would absolutely cry if I had to pay for an attorney to settle with a company that may not be so lenient.

Deb_ Posted 21 Feb 2010 , 1:55pm
post #15 of 27

Wow thanks for the heads up.

Mike1394 Posted 21 Feb 2010 , 2:04pm
post #16 of 27

Saustin bummer, but is it actually enforceable?

If you look at line four of what Kurt posted, I don't understand how your purse cakes effect thier bottom line.

Mike

tootie0809 Posted 21 Feb 2010 , 2:09pm
post #17 of 27
Quote:
Originally Posted by saustin74

I just received a "cease and desist" letter from the nice folks at Chanel as I had 5 handbag cakes pictures (with the Chanel logo) on my website. I am a SMALL operation (just me, out of my home, maybe 3 to 5 cakes/week... I was totally stunned that they found my work. Not that I was trying to hide - I actually have never really thought about copyright infringement - just made the cake the client requested. I have since removed all other cakes that could pose this same problem and will become creative as other have done to get around the issue. Just not worth the hassle - and I would absolutely cry if I had to pay for an attorney to settle with a company that may not be so lenient.




That is crazy! I'd be shaking in my boots. I've never been asked to do a purse cake, but good to know now that if I ever do, I will have to say no to any brand names on the purse, shoes, clothing, heck anything really. I completely understand that it is their brand name and they own it and can decide what they want to do with it, but really, does someone ordering a cake with your brand name, meaning they love your product, cause any sort of monetary damage?

Loucinda Posted 21 Feb 2010 , 2:46pm
post #18 of 27

Thanks for that post Snarky. It makes a lot of sense !

costumeczar Posted 21 Feb 2010 , 2:55pm
post #19 of 27
Quote:
Originally Posted by Mike1394

Saustin bummer, but is it actually enforceable?

If you look at line four of what Kurt posted, I don't understand how your purse cakes effect thier bottom line.

Mike




It's probably just that they're trying to restrict how the logo is used and abused. Some people who I've written to about using team mascots and logos have replied that they want approval of the final product before they give permission, and it will be based on the "guality of the work." It took me about 20 emails with one stupid team, who shall remain nameless, beofre I got the go-ahead to use their stupid mascot. They're just trying to make sure that people don't take their logos and use them in a way that reflects badly on the company, so they have to crack down on everyone. Disney doesn't want people selling t-shirts with Mickey doing the nasty with Minnie, to be blunt.

tiggy2 Posted 22 Feb 2010 , 1:26am
post #20 of 27

So is it an infringement for me to make my daughter a designer purse cake for her birthday since I'm not selling it?

snarkybaker Posted 22 Feb 2010 , 2:26am
post #21 of 27
Quote:
Originally Posted by costumeczar

Quote:
Originally Posted by Mike1394

Saustin bummer, but is it actually enforceable?

If you look at line four of what Kurt posted, I don't understand how your purse cakes effect thier bottom line.

Mike



It's probably just that they're trying to restrict how the logo is used and abused. Some people who I've written to about using team mascots and logos have replied that they want approval of the final product before they give permission, and it will be based on the "guality of the work." It took me about 20 emails with one stupid team, who shall remain nameless, beofre I got the go-ahead to use their stupid mascot. They're just trying to make sure that people don't take their logos and use them in a way that reflects badly on the company, so they have to crack down on everyone. Disney doesn't want people selling t-shirts with Mickey doing the nasty with Minnie, to be blunt.




No, Disney doesn't want you making tshirts with Mickey on them because they SELL tshirts with Mickey on them. That is a clear case of copyright infringement because you are depriving the holder of the copyright of a sale.

Disney can enforce their right to keep you from making " disney" cakes because they sell cake kits and edible images.

Coach would have a tough time in court arguing that because you sold a " coach bag" cake, they were deprived of the sale of a coach bag, if you decided to take it that far.

My guess is that you got a cease and desist letter because in order for a copyright to be valid, you have to show that you are willing to enforce it, and the Chanel licensee ( who happens to be Dickies in the US) is most likely building a portfolio of "proof" that it enforces its trademarks.

cakesdivine Posted 22 Feb 2010 , 3:23pm
post #22 of 27

No Tiggy it is only infringement if you make a sale from using their copyrighted/trademarked material. You can make it for your own personal use, just don't post it on any website you might have, or use it as advertisement.

tiggy2 Posted 22 Feb 2010 , 4:10pm
post #23 of 27

Thanks for the info. I don't have a website so that isn't a problem.

citygirlcakes Posted 23 Feb 2010 , 10:04pm
post #24 of 27

This is a paragraph from the letter:

Chanel has not authorized the replication of its products nor the application of any of the Chanel trade marks to the Infringing Cakes. Your making, selling, offering for sale, or otherwise promoting the Infringing Cakes infringes Chanel's intellectual property rights and falsely suggests to consumers that your business or its cakes are endorsed by or otherwise associated with Chanel. Furthermore your activity is damaging to the valuable goodwill associated with the Chanel trade-marks, which our client has developed over time at a significant expense and effort.


Chanel has WAY more money than me... I don't care enough about being able to make a "Chanel" cake to bother investigating/asking questions/interpreting the laws... icon_smile.gif

kakeladi Posted 23 Feb 2010 , 10:50pm
post #25 of 27

saustin74 I am sooooooo glad you have told us about the letter you got! I don't know how many timesz and ways I have tried to tell people not to use copyrighted cakes. It hurts all of us decorators when someone *will* knowingly adv ertise such cakes on their sites and in their shops. How? By making customers angry when you say NO.
I have often wondered how and why soooooo many places get away with it. It's just not fair to those of us who abide by the laws icon_sad.gif
Earlene Moore, years ago got such a letter from Tabasco co when she had a cake of a bottle of Tabasco on her site.

snarkybaker Posted 23 Feb 2010 , 11:26pm
post #26 of 27

As I have said, trademarks and copyrights HAVE to be enforced for them to be considered valid. If Chanel wants to be able to take the manufacturer of 10,000 pairs of fake Chanel Sunglasses to Federal Court over copyright infringement, they have to show that they ALWAYS assert their rights. As someone who has been through this ( having my trademark violated), I can promise you they won't spend the money to take you to court.

I would take them off your website, since advertising them could actually be construed, by some idiot that you have a Chanel endorsement. That, too, is an important legal standard, what the public would perceive. But I would still make them if somebody asked.

Dolledupcakes Posted 24 Feb 2010 , 12:07am
post #27 of 27

I called Disney to ask them if I can use their mickey mouse ears pancake/eggs mold that I bought for a cake that required the silhouettes. They never called me back. I left them my info and the reason why I was calling, and never got returned phone call.

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