Conflict Of Interest

Business By happydays Updated 11 Jan 2010 , 8:45am by PieceofCakeAZ

happydays Posted 10 Jan 2010 , 3:48pm
post #1 of 27

Hello, fellow cakers and business owners. I have a slight situation that I would appreciate an opinion on. I have recently started my own cake and party rental business. As part of this business I have created a website and Facebook page with pictures and slide shows. Some of the cakes are cakes that I made while working at a a grocery store. They fired me yesterday saying that it was a conflict of interest, and if I don't remove the pictures that a lawyer would be contacting me for copyright infringements. Now, most of these cakes I created. Some are your general kits, which I can order from the same suppliers. They say, since I was on the clock that they "own" these cakes. Now, I know for a fact that the store does not own a patent on my creations, so have I infringed on any copyright agreements? I never read or signed anything that says I did anything wrong, and when pressed to find the documents that state I am wrong, they simply said they would get back with me.

26 replies
thecookieladycc Posted 10 Jan 2010 , 3:59pm
post #2 of 27

I would talk to a lawyer!

newmansmom2004 Posted 10 Jan 2010 , 4:02pm
post #3 of 27

Yeah, I think I'd ask an attorney, too.

I understand them saying that anything you created while working for them belongs to them since you were in their employ, but then if some of your creations were from a kit, they can't claim ownership of those unless they created the kits. They might just be playing hardball to scare you so THEY won't have to get an attorney. Call their bluff.

indydebi Posted 10 Jan 2010 , 4:04pm
post #4 of 27

I would certainly talk to an attorney on the matter.

Allow me to add that as a business owner, if someone worked on an event that was handled by "Cater It Simple", then the presentation would belong to "Cater It Simple". If a photo of a CIS buffet appeared on another business website (i.e. such as an employee who worked on that buffet and then started their own catering business), I certainly would want those photos taken down because that would not be XYZ's buffet ... it was a CIS buffet.

I don't care if they were the one who cooked the chicken, or if they were the one who set up the Shrimp Shots. It's a work product of my company and they would be representing work done by "CIS, LLC" as work done by XYZ, New Kid on the Block.

Without knowing how many photos you're talking about, it may be just as easy to order those kits, make a dummy of each one, and show your own (company's) work on your website.

Mensch Posted 10 Jan 2010 , 4:15pm
post #5 of 27

I agree with Debi. As a business owner, anything created by my employees while on the clock for me, belongs to my business.

joaaaann Posted 10 Jan 2010 , 4:25pm
post #6 of 27

When I worked at an 'in store' bakery in the past( about 10 yrs ago) I would at times, during the holidays put my own spin on things as far as decorating cakes. Usually I stayed with the kits and pre determined way of doing things off season. I was once under the impression that if I made a really cool cake, we would increase sales and my mgr would be impressed with me. I did do it and get away with it from time to time when I had spare time on my hands and was in the mood. However, I had leaned by the mgr, when someone would ask for a cake that we didn't offer thru our display books, that we would get into trouble so needed to be discreet. Sometimes a 'regular' would ask for something 'off the wall' and depending on the customer and the day, the mgr would permit it. Accepting 'on the side' as I was asked to do a couple times could get me fired as well she advised me....for 'conflict of interest' reasons. It was out of the question for me to even think about putting one of my own created cakes on display if the 'regional Mgr's were coming out to inspect the store. It was explained that because there were existing contracts allowing 'creators' to be paid for their designs thru Deco Pac corp basically, and who ever had designed the basic floral, party and gourmet cakes and tortes we offered also)so we are not to cut into their profits by making our own creations.

happydays Posted 10 Jan 2010 , 4:28pm
post #7 of 27

You see, I was always encouraged to make my own creations to build their cake business. So the display cakes and the case cakes are my creations. But I never took business from people ordering at the store, what was ordered at the store was store business, it never got mixed into my business.

stephaniescakenj Posted 10 Jan 2010 , 4:33pm
post #8 of 27

I agree with your former employer, if you created those cakes for them, they belong to them and now that you'll be in direct competition with them, it's in their best interest not to allow you to use those cakes as promotion for your business. Just recreate them and put them back up, make sure the pics looks a little different though so they don't try to claim ownership.

KathysCC Posted 10 Jan 2010 , 4:48pm
post #9 of 27

It is true, your work belongs to the company who paid you to do it. This is common and legal in many lines of work, not just cakes. They gave you the job and paid you to create FOR them. Therefore, the creations are not your own, even though your artistic talent may have been used.

Here is an example...do you think the animators who create Disney movies have rights to the work they draw or program? They do not, Disney retains the rights to everything created by their employees.

I wouldn't waste my money on an attorney. They are in the right even if you didn't sign a contract. If you did sign a work contract with them, then read it again.

If you want cakes for your portfolio, you should make new ones on your own and put those on your website. The fight is not worth it.

happydays Posted 10 Jan 2010 , 4:59pm
post #10 of 27

Thanks everyone for all of your advice. It is greatly appreciated.

BecuzImAGurl Posted 10 Jan 2010 , 5:23pm
post #11 of 27

Wow this can bring up other questions...like for instance, I have alot of customers that are referred by my friends, and most of the time they would send me a picture of a cake they wanted (so its another decorator's creation), can I put it up as a sample of my work, like stating "This is the XYZ cake I made for the birthday/celebration of so and so" ?? and what if I put down this is a inspiration from "this decorator" and their site, will that soften up the problem?

Mensch Posted 10 Jan 2010 , 5:24pm
post #12 of 27

That's not even in the same league as what the OP was talking about.

julzs71 Posted 10 Jan 2010 , 5:33pm
post #13 of 27

Did you sign anything when you started? Sometimes it will state the fact that all cakes belong to them.
I do agree with the cake owners. I would think all photos belong to the owner.

BecuzImAGurl Posted 10 Jan 2010 , 5:44pm
post #14 of 27
Quote:
Originally Posted by Mensch

That's not even in the same league as what the OP was talking about.




Tell me why it isnt? I mean it can refer back to the OP, she can post the work and give credit to the place/bakery its from...all I wanted to know if that is still consider illegal, or not right.

I also included that may also open up other questions...this is how people misunderstand everything here, must read and understand...what I say falls in the same category!

MalibuBakinBarbie Posted 10 Jan 2010 , 6:00pm
post #15 of 27

Hi BecuzImAGurl, your scenario is different from the OP in that the OP took photos of cakes she made WHEN she worked at her former employer and posted them to her own business site. The actual photos are of cakes she made at the time she worked at her prior job. If she recreated these cakes and put them on her site, it would not be a conflict of interest. These new creations would then belong to new company. I don't know if it makes sense the way I wrote it. But that is the difference between what you and the OP are asking. I think indydebi and KathysCC explain it really well, so I would refer you back to their posts for more clarification.

To the OP, I'm sorry you're in this mess! I would decorate cake dummies and then post them on your site. It's not worth the expense of hiring an attorney (in my opinion). Especially since you said some of the cakes were done using kits. Therefore, they shouldn't be too hard or time-consuming to recreate and you can quickly build up your portfolio. Good luck to you!

Deb_ Posted 10 Jan 2010 , 6:01pm
post #16 of 27
Quote:
Originally Posted by BecuzImAGurl

Quote:
Originally Posted by Mensch

That's not even in the same league as what the OP was talking about.



Tell me why it isnt? I mean it can refer back to the OP, she can post the work and give credit to the place/bakery its from...all I wanted to know if that is still consider illegal, or not right.

I also included that may also open up other questions...this is how people misunderstand everything here, must read and understand...what I say falls in the same category!




When you OWN your own business and a bride brings you a photo of a cake she wants "recreated" and YOU "recreate" that cake then you can put a photo of the cake that YOU recreated on your site. It's YOUR work.

If however, you work for a bakery when you create that cake and you then put that photo up on YOUR business site then you're displaying a photo of work that belongs to the bakery. Even though YOU may have made the cake, you worked for a bakery and it's their property.

Definitely not the same thing, but good question.

BecuzImAGurl Posted 10 Jan 2010 , 7:31pm
post #17 of 27
Quote:
Originally Posted by dkelly

Quote:
Originally Posted by BecuzImAGurl

Quote:
Originally Posted by Mensch

That's not even in the same league as what the OP was talking about.



Tell me why it isnt? I mean it can refer back to the OP, she can post the work and give credit to the place/bakery its from...all I wanted to know if that is still consider illegal, or not right.

I also included that may also open up other questions...this is how people misunderstand everything here, must read and understand...what I say falls in the same category!



When you OWN your own business and a bride brings you a photo of a cake she wants "recreated" and YOU "recreate" that cake then you can put a photo of the cake that YOU recreated on your site. It's YOUR work.

If however, you work for a bakery when you create that cake and you then put that photo up on YOUR business site then you're displaying a photo of work that belongs to the bakery. Even though YOU may have made the cake, you worked for a bakery and it's their property.

Definitely not the same thing, but good question.




Well thank you, all I want is a simple answer, and sometimes one topic do lead to other things...there wasnt rules that said I cant ask similar questions...its not like I asked 'how you put fondant on a cake'
it's just her situation makes me think of my question.

Deb_ Posted 10 Jan 2010 , 7:54pm
post #18 of 27

No, it definitely was a good question.....that's how we learn never be afraid to ask.

I learn something here every day....sometimes it's useful sometimes not but hey, at least I've learned something. icon_biggrin.gif

PieceofCakeAZ Posted 10 Jan 2010 , 8:25pm
post #19 of 27

The question may not be do you have the right to display the cakes you made while in their employ, it may be can you financially afford a legal battle with them if they decide to try make an example out of you? Although not fair, in my experience, the person with the most money and best lawyer generally wins the court case.

Even if they are wrong it could end up costing you thousands of dollars and years off of your life.

Best of luck!

happydays Posted 10 Jan 2010 , 8:55pm
post #20 of 27

Thank you all so much! I have learned a lot here today, I and I value all of the different answers, and questions that were brought up. I agree, I will be making cake dummies to replicate some of the past work, and just replace the photos. Maybe they will turn out better than the originals, so end in the end, I'm probably better off anyway. Thank you all!

Lcubed82 Posted 11 Jan 2010 , 2:14am
post #21 of 27

My hubby is an engineer. If you develop new technology on the job, and get a patent, the patent belongs to the company.

Ruth0209 Posted 11 Jan 2010 , 6:38am
post #22 of 27
Quote:
Originally Posted by PieceofCakeAZ

The question may not be do you have the right to display the cakes you made while in their employ, it may be can you financially afford a legal battle with them if they decide to try make an example out of you? Although not fair, in my experience, the person with the most money and best lawyer generally wins the court case.

Even if they are wrong it could end up costing you thousands of dollars and years off of your life.

Best of luck!




I don't think it's unfair at all for the employer to take this position. They paid for the supplies and paid the OP a wage to create a product for them. The product and everything about it belongs to them. Period.

This is common practice in most industries. It's called intellectual property and it always belongs to the company. I wouldn't waste any money on an attorney.

my_4_dumplins Posted 11 Jan 2010 , 7:16am
post #23 of 27

I really hate that they fired you first without giving you a warning or anything first. That has got to be rough! But hey, on the other hand you will have some free time to work on getting your business up and going, so this may be a very positive thing! Good luck!

Ruth0209 Posted 11 Jan 2010 , 7:18am
post #24 of 27
Quote:
Originally Posted by my_4_dumplins

I really hate that they fired you first without giving you a warning or anything first. That has got to be rough! But hey, on the other hand you will have some free time to work on getting your business up and going, so this may be a very positive thing! Good luck!




Yeah, that's really obnoxious isn't it? Seems like a big over-reaction. Most places would just tell you to knock it off or else.

It depends on the state, but if they didn't give you a warning, you'll probably be eligible for unemployment.

PieceofCakeAZ Posted 11 Jan 2010 , 8:17am
post #25 of 27
Quote:
Originally Posted by Ruth0209


I don't think it's unfair at all for the employer to take this position. They paid for the supplies and paid the OP a wage to create a product for them. The product and everything about it belongs to them. Period.

This is common practice in most industries. It's called intellectual property and it always belongs to the company. I wouldn't waste any money on an attorney.




It seems I was misinterpreted. I never said her situation was unfair I said" Although not fair, in my experience, the person with the most money and best lawyer generally wins the court case". A generality about how our legal system works. My point was not about her specific set of circumstances, I was merely stating that often when matters like this go to court, the person with the least money will likely lose or concede to save considerable expense. In other words... it's probably not worth fighting it.

Ruth0209 Posted 11 Jan 2010 , 8:36am
post #26 of 27

PieceofCakeAZ, you're right, I did misunderstand your point. Sorry - long day. And you're also right that he who has the biggest checkbook usually wins.

PieceofCakeAZ Posted 11 Jan 2010 , 8:45am
post #27 of 27
Quote:
Originally Posted by Ruth0209

PieceofCakeAZ, you're right, I did misunderstand your point. Sorry - long day. And you're also right that he who has the biggest checkbook usually wins.




No worries, when I read what I wrote quickly again... I confused myself! icon_biggrin.gif

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