Liscensed Characters - New Thoughts???

Decorating By momtofourmonkeys Updated 25 Apr 2010 , 1:57am by dchockeyguy

momtofourmonkeys Posted 15 Apr 2010 , 6:41pm
post #1 of 60

It has always been stated the Liscensed characters are off limits for selling on cakes. I have been following the Cricut/ Cricut Cake story thread and something within the thread has made me go hmmmm....(I didn't think it was appropriate to post this on that thread so I have started another)

On page 6 of the thread, this link was posted for information on ProvoCraft: http://www.tabberone.com/Trademarks/HallOfShame/CraftSites/Cricut/Cricut.shtml

I read through it in total disgust of Provocraft - but that is besides the point right now.

Point stated was once a liscenced product is sold, the company really doesn't have any control over what it is used for. They cannot keep you from making and selling something from the product. I came upon the information about selling of liscensed characters in the above link and then went to this one: http://www.tabberone.com/Trademarks/TrademarkLaw/Disclaimers/TabberoneDisclaimer.shtml

It makes one wonder if this site really knows what it is talking about? We have all heard about those individuals who made/ used a liscensed product and got in trouble for it. Could they have fought back and won? I would love to hear others' takes on this. My belief up to now has always been liscenced characters are off limits for selling, no ifs, ands, or buts. Now I am questioning it as the article made some good points.

59 replies
sewsweet2 Posted 15 Apr 2010 , 6:58pm
post #2 of 60

That same thought passed through my mind when I was reading the article too.

sadsmile Posted 15 Apr 2010 , 7:06pm
post #3 of 60

The pans in question contained the warning statement on it at the time of purchace and by buying the product you are agreeing to it. Though, I am also questioning whether it is valid in the way it currently being understood and limited.

Kitagrl Posted 15 Apr 2010 , 7:09pm
post #4 of 60

I don't mind the pans....but I wonder if you sculpt your very own character....is that specifically illegal?

I've seen where people make handmade bears and other artsy things that are dressed to look like a Disney character or some other trademark.... nobody seems to complain about that.

The only things I thought were truly illegal is people mass producing toys or apparel and claiming to be Disney or an authorized dealer of the character (which actually happens all the time....look at the fake "Nike" and other stuff people are always buying off the streets of NYC...)

I'm just throwing out thoughts, not wanting to fight. I've been really trying to cut back/cut out licensed stuff but the OP had a good thought.

momtofourmonkeys Posted 15 Apr 2010 , 7:12pm
post #5 of 60
Quote:
Originally Posted by sadsmile

The pans in question contained the warning statement on it at the time of purchace and by buying the product you are agreeing to it. Though, I am also questioning whether it is valid in the way it currently being understood and limited.




Exactly! Is their statement on the pans a legally binding statement or just meant to deter us? Make us scared to even try to resell? And then with the third party information, if these pans are sold again to a third party, those statements are not on the product anymore, so how can Disney, MGM, or any other company hold the third party to those "rules of purchase" that are on the new product?

SpecialtyCakesbyKelli Posted 15 Apr 2010 , 7:20pm
post #6 of 60

My two cents....... I'm not sure what all is on the cartridges for cricut cakes....but I have yet to see anything that hasn't already been done. So, with that said... Cricut CAN NOT copyright an image that has been produced by many different people. I'm referring to scrolls, damask, diamonds, hearts, flowers, etc. However, if there is a design on these cartridges that I have yet to see, and it is unique to Cricut, then they can copyright that. Disney can copyright their characters because they were created BY Disney. From what I've seen, Cricut hasn't created or designed any image... they have used designs that have been done for years.

dchockeyguy Posted 15 Apr 2010 , 7:28pm
post #7 of 60

YOu cannot legally sculpt a character that is a likeness of a trademarked character for money. There are many bakeries I've heard of that have received calls from Disney asking "Could you do a <insert charcter here> cake for me?" If they say yes, they get in trouble. It DOES happen. People such as Disney, Nickalodeon, and other companies who trademark a character have to proactive about this. Do they hit all the home bakers? No, they don't. But commercial ones are another story.

It is essential for companies to do this to ensure an accurate representation of their character. What if someone wanted a cake of Mickey and Minnie doing something dirty? Do you think Disney would want people to see that? Of course not. This is not a silly example either. A company cannot pick and choose which represenations are accurate and which are not. It may seem unfair, but it's necessary.

SpecialtyCakesbyKelli Posted 15 Apr 2010 , 7:31pm
post #8 of 60

By the way...I'm sitting here laughing my @ss off at the cricut cake basics images marked licensed and copyright by Provo Craft....which include a circle, heart, square, diamond, triangle. LOL yeah, take me to court because you have a "copyright" on a circle! Lets see how that goes for Provo Craft.

SpecialtyCakesbyKelli Posted 15 Apr 2010 , 7:37pm
post #9 of 60
Quote:
Originally Posted by dchockeyguy

YOu cannot legally sculpt a character that is a likeness of a trademarked character for money. There are many bakeries I've heard of that have received calls from Disney asking "Could you do a <insert charcter here> cake for me?" If they say yes, they get in trouble. It DOES happen. People such as Disney, Nickalodeon, and other companies who trademark a character have to proactive about this. Do they hit all the home bakers? No, they don't. But commercial ones are another story.

It is essential for companies to do this to ensure an accurate representation of their character. What if someone wanted a cake of Mickey and Minnie doing something dirty? Do you think Disney would want people to see that? Of course not. This is not a silly example either. A company cannot pick and choose which represenations are accurate and which are not. It may seem unfair, but it's necessary.



You are right in the case of licensed characters. However, as one of the most clever cake central ladies said, there are ways around anything. If someone request a mickey mouse cake, you can tell them that you can do the cake in a certain color scheme, but you can not reproduce a character, and if they want to add the character themselves...that is perfectly legal.

sadsmile Posted 15 Apr 2010 , 7:42pm
post #10 of 60

I am totally with you on the public domain. It's utter nonsense and wouldn't hold up. Though I wouldn't have the $$$ to fight it. But nor am I a business making money on cake I make.

sadsmile Posted 15 Apr 2010 , 8:05pm
post #11 of 60

But by using the Cricut imagery of those licensed characters you can make them... if that legal mess is true. Read under 3Rd party rights and the Tabberone Disclosure. So using the Cricut Cartridges may be a caker's way around the licensed character issue. - Again if the article is accurate.

Kitagrl Posted 15 Apr 2010 , 8:12pm
post #12 of 60
Quote:
Originally Posted by SpecialtyCakesbyKelli

Quote:
Originally Posted by dchockeyguy

YOu cannot legally sculpt a character that is a likeness of a trademarked character for money. There are many bakeries I've heard of that have received calls from Disney asking "Could you do a <insert charcter here> cake for me?" If they say yes, they get in trouble. It DOES happen. People such as Disney, Nickalodeon, and other companies who trademark a character have to proactive about this. Do they hit all the home bakers? No, they don't. But commercial ones are another story.

It is essential for companies to do this to ensure an accurate representation of their character. What if someone wanted a cake of Mickey and Minnie doing something dirty? Do you think Disney would want people to see that? Of course not. This is not a silly example either. A company cannot pick and choose which represenations are accurate and which are not. It may seem unfair, but it's necessary.


You are right in the case of licensed characters. However, as one of the most clever cake central ladies said, there are ways around anything. If someone request a mickey mouse cake, you can tell them that you can do the cake in a certain color scheme, but you can not reproduce a character, and if they want to add the character themselves...that is perfectly legal.




I understood that as long as we are buying premade figurines that are licensed/approved, that we can put those on a cake.....I didn't think the customer had to do it.

momtofourmonkeys Posted 15 Apr 2010 , 8:17pm
post #13 of 60

" However, Disney, Sesame Street, Hello Kitty, and Nickelodeon characters and images MAY NOT be reproduced and sold.

Wrong. If they are selling the cut files of those images under license from the owners, or the method of producing these cut files, using those cut files to make and then to sell items is perfectly legal under the first sale doctrine and other applicable statutes including implied license. The machines are sold for you to make cut files and then to make items from those cutfiles. The manufacturer, Cricut, cannot lawfully restrict what is done with the cut file after it is made from the machine you lawfully purchased. The licensors, Disney, Sesame Street, Hello Kitty, and Nickelodeon, likewise have no right to prohibit the sales of items made from the licensed cut files. The only important factor for you to remember is when you offer the item for sale you should use a Tabberone Disclaimer or something similar and do not in any way suggest that you are selling a licensed product. You can say the product was made from licensed materials. "

The above came from the site with the legal mumbo jumbo. So I wonder if sadsmile is on to something. If the said "copyrighted" characters are cut from a machine that determines their exact cuts, then we can indeed sell the item.

Then would one say that using a pan may not give an accurate portrayal and therefore couldn't be used?

Then again, if this is the case, then couldn't one use the plastic figurines, candies, etc of said "copyrighted materials" because they are in fact an accurate representation. Objects that customers have previously been told they had to purchase and place themselves?

tabberone Posted 15 Apr 2010 , 8:33pm
post #14 of 60
Quote:
Originally Posted by sadsmile

The pans in question contained the warning statement on it at the time of purchace and by buying the product you are agreeing to it. Though, I am also questioning whether it is valid in the way it currently being understood and limited.




On my web site under Patterns, and under Cosmetic Companies, , I list a number of federal court cases that stated restrictions on use and/or resale on the label of a product are not binding upon the purchaser. They can place whatever they want on the label, or attach a tag, but even if you do not agree they will sell it to you.

When an item is sold to you, it is yours. A use license requires a written agreement between the parties.

Kitagrl Posted 15 Apr 2010 , 8:38pm
post #15 of 60
Quote:
Originally Posted by tabberone

Quote:
Originally Posted by sadsmile

The pans in question contained the warning statement on it at the time of purchace and by buying the product you are agreeing to it. Though, I am also questioning whether it is valid in the way it currently being understood and limited.



On my web site under Patterns, and under Cosmetic Companies, , I list a number of federal court cases that stated restrictions on use and/or resale on the label of a product are not binding upon the purchaser. They can place whatever they want on the label, or attach a tag, but even if you do not agree they will sell it to you.

When an item is sold to you, it is yours. A use license requires a written agreement between the parties.




So if it is legal to use a cricut to make mickey mouse, and a wilton pan to make mickey mouse (again technically and legally speaking) what is the difference between that, and making mickey mouse yourself out of gumpaste (for example)?

I would think that you could only use figurines purchased straight from Disney on your cake.....and if it went farther, saying you could go ahead and sell wilton cakes or cricut cakes, then it would seem the copyrights don't hold as much weight as we think....

Anybody around here a lawyer? haha.

sadsmile Posted 15 Apr 2010 , 8:42pm
post #16 of 60

Um hi... do you trollthe internet for mention of Tabberone and just come to join the party? Kind of fishy that you would join up at this very instance. Please introduce yourself and elaborate a little to clear up your arrival here for my amusement if nothing else. icon_wink.gif

tabberone Posted 15 Apr 2010 , 8:43pm
post #17 of 60
Quote:
Originally Posted by Kitagrl


So if it is legal to use a to make mickey mouse, and a wilton pan to make mickey mouse (again technically and legally speaking) what is the difference between that, and making mickey mouse yourself out of gumpaste (for example)?

I would think that you could only use figurines purchased straight from Disney on your cake.....and if it went farther, saying you could go ahead and sell wilton cakes or cakes, then it would seem the copyrights don't hold as much weight as we think....




The difference is that the method to make the image was licensed by Disney to PC to sell. You are purchasing a licensed product that makes images of trademarked figures. This is done with the permission of Disney. While PC, and probably Disney, will say otherwise, they are selling you the implied right to use the cutouts. Provided you do not do anything to make a purchaser think you are selling a licensed product.[/i]

Kitagrl Posted 15 Apr 2010 , 8:44pm
post #18 of 60

What is tabberone anyway?

tabberone Posted 15 Apr 2010 , 8:49pm
post #19 of 60
Quote:
Originally Posted by sadsmile

Um hi... do you trollthe internet for mention of Tabberone and just come to join the party? Kind of fishy that you would join up at this very instance. Please introduce yourself and elaborate a little to clear up your arrival here for my amusement if nothing else. icon_wink.gif




Our pages have invisible counters on them. These counters tell what web sites are sending a lot of traffic to the pages. Cricut numbers have been through the roof for several days. I look to see what is being said and I sometimes comment.

Some message boards, like those on Etsy, have a cadre of Misinformation Mavens who are radically in favor of the manufacturer being able to control a product after it has been sold. However, the Supreme Court disagreed over 130 years ago when they said:

Quote:
Quote:

Patentees ... are entitled to but one royalty for the patented machine, and consequently when a patentee has himself constructed the machine and sold it, or authorized another to construct and sell it, or to construct and use and operate it, and the consideration has been paid to him for the right, he has then to that extent parted with his monopoly, and ceased to have any interest whatever in the machine so sold or so authorized to be constructed and operated.

Bloomer v. Millinger, 68 U.S. (1 Wall.) 340, 350, 17 L.Ed. 581 (Supreme Court 1863).




Karen

tabberone Posted 15 Apr 2010 , 8:51pm
post #20 of 60
Quote:
Originally Posted by Kitagrl

What is tabberone anyway?




According to Mr Tabberone, a Goddess.

sadsmile Posted 15 Apr 2010 , 8:53pm
post #21 of 60

Excellent. Welcome aboard!

sadsmile Posted 15 Apr 2010 , 8:58pm
post #22 of 60

This has been a very interesting turn of events and many things we think are not allowed are actually with in out rights as consumers of these products to use for business purposes.

I don't like injustice...
Just try and wipe the Cheshire Cat like grin from my face now!

dchockeyguy Posted 15 Apr 2010 , 9:06pm
post #23 of 60

Please note, Tabberone herself on her website says she is not a lawyer. I would be hesitant to take the advice of a non lawyer on a subject that is actually a complex legal issue. For example, the right of first sale doesn't apply to everything. There are limits on how you can actual use an item in the right of first sale. I actually did talk to a lawyer about this just a little bit ago. I thought the issue would be really cut and dried, but it's not! Holy cow, no wonder they have to go to school for 3 years to figure this out.

Kitagrl Posted 15 Apr 2010 , 9:11pm
post #24 of 60

Like I said in another thread...spitting on the sidewalk in public is illegal in some towns....

There is tons of fine print in all the books. Crazy.

sadsmile Posted 15 Apr 2010 , 9:13pm
post #25 of 60

Yes definitely, but it does point us in the right direction of what to ask and to find out if those rulings still stand unaltered.

newmansmom2004 Posted 15 Apr 2010 , 9:22pm
post #26 of 60
Quote:
Originally Posted by dchockeyguy

YOu cannot legally sculpt a character that is a likeness of a trademarked character for money. There are many bakeries I've heard of that have received calls from Disney asking "Could you do a <insert charcter here> cake for me?" If they say yes, they get in trouble. It DOES happen. People such as Disney, Nickalodeon, and other companies who trademark a character have to proactive about this. Do they hit all the home bakers? No, they don't. But commercial ones are another story.

It is essential for companies to do this to ensure an accurate representation of their character. What if someone wanted a cake of Mickey and Minnie doing something dirty? Do you think Disney would want people to see that? Of course not. This is not a silly example either. A company cannot pick and choose which represenations are accurate and which are not. It may seem unfair, but it's necessary.




I understand your point, but how about the cake challenges on television where the best and most commercial cake decorators in the country sculpt characters (Disney, Spongebob, Pixar, etc.) then win $10,000? Is that possibly the loophole? Or do you think maybe they're exempt from the rule because a representative from those firms is usually on hand as a judge? I'd never even thought about that until this topic came up, but it sure makes one think.

tabberone Posted 15 Apr 2010 , 9:25pm
post #27 of 60
Quote:
Originally Posted by dchockeyguy

Please note, Tabberone herself on her website says she is not a lawyer. I would be hesitant to take the advice of a non lawyer on a subject that is actually a complex legal issue. For example, the right of first sale doesn't apply to everything. There are limits on how you can actual use an item in the right of first sale. I actually did talk to a lawyer about this just a little bit ago. I thought the issue would be really cut and dried, but it's not! Holy cow, no wonder they have to go to school for 3 years to figure this out.




There are limits only if all parties are in agreement with it. Federal law makes certain exceptions for motion pictures, music, and computer programs. However, those exceptions are limited.

The first sale doctrine simply states the owner relinquishes control over an item once it has been sold.

Quote:
Quote:

The whole point of the first sale doctrine is that once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution.

Justice Paul Stevens writing for a unanimous Supreme Court, QualityKing v Lanza Research, 523 U.S. 135 (199icon_cool.gif




Many companies want to control how their product is used. Those that get a signed agreement can limit the use. Simply stating that you cannot do something is not binding upon the purchaser.

sadsmile Posted 15 Apr 2010 , 9:38pm
post #28 of 60

Then without a John Hancock their argument is useless.

dchockeyguy Posted 15 Apr 2010 , 9:38pm
post #29 of 60
Quote:
Originally Posted by newmansmom2004

Quote:
Originally Posted by dchockeyguy

YOu cannot legally sculpt a character that is a likeness of a trademarked character for money. There are many bakeries I've heard of that have received calls from Disney asking "Could you do a <insert charcter here> cake for me?" If they say yes, they get in trouble. It DOES happen. People such as Disney, Nickalodeon, and other companies who trademark a character have to proactive about this. Do they hit all the home bakers? No, they don't. But commercial ones are another story.

It is essential for companies to do this to ensure an accurate representation of their character. What if someone wanted a cake of Mickey and Minnie doing something dirty? Do you think Disney would want people to see that? Of course not. This is not a silly example either. A company cannot pick and choose which represenations are accurate and which are not. It may seem unfair, but it's necessary.



I understand your point, but how about the cake challenges on television where the best and most commercial cake decorators in the country sculpt characters (Disney, Spongebob, Pixar, etc.) then win $10,000? Is that possibly the loophole? Or do you think maybe they're exempt from the rule because a representative from those firms is usually on hand as a judge? I'd never even thought about that until this topic came up, but it sure makes one think.




You hit the nail on the head! Those challenges are usually sponsored by the people who hold the trademark. They also aren't actually selling the cake either. Since it's a sponsored contest, it's totally legit!

dchockeyguy Posted 15 Apr 2010 , 9:41pm
post #30 of 60
Quote:
Originally Posted by tabberone

Quote:
Originally Posted by dchockeyguy

Please note, Tabberone herself on her website says she is not a lawyer. I would be hesitant to take the advice of a non lawyer on a subject that is actually a complex legal issue. For example, the right of first sale doesn't apply to everything. There are limits on how you can actual use an item in the right of first sale. I actually did talk to a lawyer about this just a little bit ago. I thought the issue would be really cut and dried, but it's not! Holy cow, no wonder they have to go to school for 3 years to figure this out.



There are limits only if all parties are in agreement with it. Federal law makes certain exceptions for motion pictures, music, and computer programs. However, those exceptions are limited.

The first sale doctrine simply states the owner relinquishes control over an item once it has been sold.

Quote:
Quote:

The whole point of the first sale doctrine is that once the copyright owner places a copyrighted item in the stream of commerce by selling it, he has exhausted his exclusive statutory right to control its distribution.

Justice Paul Stevens writing for a unanimous Supreme Court, QualityKing v Lanza Research, 523 U.S. 135 (199icon_cool.gif



Many companies want to control how their product is used. Those that get a signed agreement can limit the use. Simply stating that you cannot do something is not binding upon the purchaser.




I will reiterate my point that you are not a lawyer, and you are oversimplifying a complex issue. For example, this applies to Copyright and not trademark. There are some different rules for copyright and trademarks.

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