Copyrighted Characters?

Business By Adevag Updated 24 Nov 2009 , 4:01pm by tguegirl

Adevag Posted 23 Nov 2009 , 5:28am
post #1 of 13

I just read another thread about copyrighted characters. I feel pretty stupid that I have no idea what this means! (I understand what copyright means but not when it comes to cake decorating). Are all or just certain characters copyrighted so that nobody is allowed to make them out of cake? I know about the wilton pans. In the other thread they were talking about Elmo. Is no body allowed to make an elmo cake? What are the rules? I have seem many Disney cakes so I had no idea that some could be illegal (besides the Wilton Character pans, because I know they are illegal to use for a business).

12 replies
indydebi Posted 23 Nov 2009 , 6:33am
post #3 of 13

I would guess pretty much any character you see on TV is copyrighted. Definitely ALL disney characters are. Sports teams logos, college logos, food logos (Coke) ... anything with that little 'c' after it is off limits.

So unless you have a license agreement between you and a copyright holder, or have written permission from the orgz, you can't draw, carve, or design a replication of any copyrighted character.

"changing it slightly" is still a copyright violation. If you make a blue cat with stripes and someone says "OH look! A blue Garfield!" then you've violated the copyright that protects Garfield. (I use that example intentionally. My next door neighbor works for Jim Davis, the creator of Garfield. Some guy thought if he made Garfield in blue, he was ok. Mr. Davis took him to court and the guy found out his thinking was wrong.)

What you can do is make a cake that is themed in the design. For example, make a cake in bright primary colors, with perhaps red fondant covering the top, and the customer can add the plastic Elmo THAT THEY BOUGHT to the cake. You can make a generic princess cake ... not a Cinderella cake. You can make a fish cake ... not a Nemo cake.

The question comes up frequently "what about all the Elmo cakes I see on CC?" Many Cc'ers are hobbyists and make those cakes strictly for their family. The violation comes in if you SELL the Elmo cake......you have made a profit off of the copyright holder's creation without giving the copyright holder his cut. You can make them free all day long. You can't SELL the image without a licensing agreement or written approval.

Hope this helps explain a bit of it. This is a popular topic so I'm sure others wiill pop in with some add'l info for you.

indydebi Posted 23 Nov 2009 , 6:33am
post #4 of 13

see? Jan popped in even while I was typing! thumbs_up.gif

Mensch Posted 23 Nov 2009 , 7:44am
post #5 of 13

Jan is totally the Queen of Links.

tguegirl Posted 23 Nov 2009 , 8:43pm
post #6 of 13

Hi guys,
I read through some of the links, but didn't seem to find the answer to my question. I was hoping Indydebi or some other cake gurus could help!

1. I was hoping to enter a cake into a cake convention. Am I correct in assuming I can't use any copyrighted images for this? I'm not technically selling, but I guess the prospect of winning a prize would mean I can't use copyrighted images?

2. How far does this extend? I know Disney characters, etc are included. What about making a Ferrari car cake (Ferrari is certainly copyrighted). What about a cake replicated the Empire State Building?

I feel a little silly, but I found this on the official website: © Empire State Building Company L.L.C. All Rights Reserved.
The words Empire State Building and the Empire State Building design are registered trademarks of Empire State Building Company L.L.C.
All the content featured or displayed on this website, including, but not limited to, text, graphics, photographs, images, moving images, sound, illustrations and software, is owned and/or copyrighted by ESB, its licensers and its content providers.

snarkybaker Posted 23 Nov 2009 , 8:47pm
post #7 of 13

There is another copywright thread brewing even as we speak... Here is my cross post.

Quote:
Quote:

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.


BlakesCakes Posted 23 Nov 2009 , 9:56pm
post #8 of 13

I love how people spend so much time trying to justify something that they know is, at it's core, just not OK..............................

At the base of it all, in contemporary society, if you didn't spend the money to invent it, design it, copyright it, or prototype it, you simply don't have the right to reproduce it in cake--or on paper or fabric or on the side of your own home. The entity which has done these things is deemed the only entity that is permitted to make money off of whatever it is, or to grant the right for someone elst to do so.

Wilton can sell the pans because they have an agreement with Disney to do so. Disney receives royalties from the agreement. Those may be a small portion of every sale, or a large amount of money paid once the designs are approved for production. Part of the agreement is that Wilton provide a disclaimer telling customers that the pans are for personal use only--not for making items for sale.

Some companies and individuals are very protective of the $$$$$$$$$$$$s they've spent. They spend even more $$$$$$$$$$ searching out people who they believe are making money off of their backs--and they prosecute--think Disney, Louis Vuitton, Coach. Others are less concerned about a few $$ here and there and let it go. Some will grant the right to use their image freely, others will charge a small fee, still others will charge a ton of money--effectively making it not worth your while to pursue it.

If you sell a cake and have used an image/design/logo/character, especially common & recognizable ones, that you have not gotten permission to use, then you are almost certainly violating copyright laws and you are vulnerable to whatever sanction that the originator decides to enact.

It's up to you as to how much risk you take in life. If you are comfortable opening a cease & desist order from Disney that threatens legal consequences for continuing to sell such products, then fine. If that's the kind of thing that takes years off of your life, you may want to re-think it...........

Rae

snarkybaker Posted 23 Nov 2009 , 10:03pm
post #9 of 13
Quote:
Originally Posted by BlakesCakes

I love how people spend so much time trying to justify something that they know is, at it's core, just not OK..............................

At the base of it all, in contemporary society, if you didn't spend the money to invent it, design it, copyright it, or prototype it, you simply don't have the right to reproduce it in cake--or on paper or fabric or on the side of your own home. The entity which has done these things is deemed the only entity that is permitted to make money off of whatever it is, or to grant the right for someone elst to do so.

Wilton can sell the pans because they have an agreement with Disney to do so. Disney receives royalties from the agreement. Those may be a small portion of every sale, or a large amount of money paid once the designs are approved for production. Part of the agreement is that Wilton provide a disclaimer telling customers that the pans are for personal use only--not for making items for sale.

Some companies and individuals are very protective of the $$$$$$$$$$$$s they've spent. They spend even more $$$$$$$$$$ searching out people who they believe are making money off of their backs--and they prosecute--think Disney, Louis Vuitton, Coach. Others are less concerned about a few $$ here and there and let it go. Some will grant the right to use their image freely, others will charge a small fee, still others will charge a ton of money--effectively making it not worth your while to pursue it.

If you sell a cake and have used an image/design/logo/character, especially common & recognizable ones, that you have not gotten permission to use, then you are almost certainly violating copyright laws and you are vulnerable to whatever sanction that the originator decides to enact.

It's up to you as to how much risk you take in life. If you are comfortable opening a cease & desist order from Disney that threatens legal consequences for continuing to sell such products, then fine. If that's the kind of thing that takes years off of your life, you may want to re-think it...........

Rae




Nice rant, but not legally the case at all. I would suggest that you look up copywright and fair use and do some reading.

BlakesCakes Posted 23 Nov 2009 , 10:23pm
post #10 of 13

I have............and I choose not to read between the lines in order to create convenient loopholes that may later become a legal noose around my proverbial neck.............

Litigation is expensive. A large company has the benefit of using cadres of lawyers on retainer who can crush me financially with just the right set of filings.

I have better things to do with my money than fend off legal eagles.

Like I said, it's up to anyone as to how much risk they are willing to take in life. If they want to lurk in grey areas because they want to believe that they're right, FINE, but they'd better KNOW ALL of the ins and outs of the law, have deep pockets for the defense of their "knowledge", and be well prepared for the pains and heartaches that come with just the THREAT of a lawsuit from someone with the time and the $$ to carry out the threat.

Do whatever you want, but don't try to lull people into your own way of thinking just for the sake of having company----unless, of course, you have deep pockets and are prepared to pay the legal bills of someone who chooses to defend themselves by saying that they just followed the advice of snarkybaker on CakeCentral..............I'm sure that would send opposing counsel into paroxysms of........... LAUGHTER

Rae

snarkybaker Posted 23 Nov 2009 , 10:38pm
post #11 of 13

All of intellecual property law is pretty grey, and it should be. A copywright really has no value unless the copywrighted property is enjoyed ( the legal term used) by the public. In other words, if people didn't like Dora, her image would be worthless. That public participation in creating the copywright's value gives the public some rights.

I am not telling anyone they should or shouldn't make character cakes. I am saying that it is not legally as cut and dried as some CC posts would have you believe.

When we are looking at using someone else's work we operate as follows-

Try and track down a licensed image for reuse.
Ask for permission if you can't find one.
Don't mess with Disney.

indydebi Posted 23 Nov 2009 , 10:46pm
post #12 of 13
Quote:
Originally Posted by snarkybaker



Try and track down a licensed image for reuse.
Ask for permission if you can't find one.
Don't mess with Disney.





icon_lol.gificon_lol.gif good one! icon_lol.gif

tguegirl Posted 24 Nov 2009 , 4:01pm
post #13 of 13

I emailed the organizers of the NY Cake Convention about using a copyrighted image for a cake submitted to the competition.

This was their response:
"Other competitors have contacted us about this very same issue. Some have contacted the companies on their own to ask permission to use the character design. From what I understand, there shouldn't be a issue with you using a copyrighted image. This is due to the fact you are not selling the piece. This would be up to you to research. However, the cakes will not be refused; if this is your main concern."

I thought it might be of interest to people.

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