Liscensed Characters - New Thoughts???
Decorating By momtofourmonkeys Updated 25 Apr 2010 , 1:57am 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.
I am sure that those companies are paying/sponsoring the competition in order to be the theme of the contest since almost all of the show is one big subtle advertisement. Also, since they aren't actually selling the cake they would probably be able to get out of it that way as well.
I don't what all the legal mumbo jumbo means but I'm gonna go cut a Mickey Mouse shaped piece of meat with my Cricut Cake, slap it on some store bought bread and open up my very own professional sandwhich shop.
I don't what all the legal mumbo jumbo means but I'm gonna go cut a Mickey Mouse shaped piece of meat with my Cake, slap it on some store bought bread and open up my very own professional sandwhich shop.
Please be sure to post pics!!!! 
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.
Wrong. The first sale doctrine is applied by federal courts to trademarks. When an item that has a trademark on it is sold, the courts apply the first sale doctrine.
You are correct that I am not a lawyer. However, after 15-plus trademark/copyright cases in federal court, representing myself, I have a good idea of what is what. And, my web site has been up since 2001 and not one lawyer has taken issue with what we say. Please note I quote court cases to back my statements. The issues are made complex by lawyers who want your money.
tabberone-
So wait Disney tried to stop you from selling items you made with fabric you purchased that just so happened to have Disney characters on it?
And you won the right to sell your items?
That's what I was thinking. You purschased the fabric therefore you have the right to do with as you wish.
I guess I never really thought about copyright and tradmark stuff outside of how if affected my cakes.
Good for you for representing yourself and winning!
tabberone-
So wait Disney tried to stop you from selling items you made with fabric you purchased that just so happened to have Disney characters on it?
And you won the right to sell your items?
Disney terminated about six of my eBay auctions while I was in a court fight with M&M/mars over the use of their licensed fabrics. I did not want two court fights at the same time (M&M/Mars was my first) so I waited to see what would happen with M&M/Mars before I took on Disney. M&M/Mars and I settled in November of 2002 and I turned my attention to Da Mouse. I sued Disney on December 24, 2002. My Christmas present to Da Mouse.
I have sued Disney, Major League Baseball, Sanrio (Hello Kitty), United Media (Peanuts), and Debbie Mumm, all over the use of their fabrics. All of them state on the fabrics that they are for non-commercial home use only. All of them could not wait to settle instead of fighting the issue. Why? Because it was a loser.
Karen
Good for you Tabberone! It is nice to know that someone has stood up to the giants and won on this issue!
Wait a minute....you purchased fabric that stated it was for home use only and you made and sold items of this fabric anyway? Why would you knowingly break the law? Or did you break the law specifically to challenge it? Honestly, I don't understand why they weren't suing you instead of the other way around. I guess you are ultimately saying that anyone should be able to make a profit off of someone else's intellectual property? So if you designed a character, you'd be okay with other people making a profit by using your design?
Wait a minute....you purchased fabric that stated it was for home use only and you made and sold items of this fabric anyway? Why would you knowingly break the law? Or did you break the law specifically to challenge it? Honestly, I don't understand why they weren't suing you instead of the other way around. I guess you are ultimately saying that anyone should be able to make a profit off of someone else's intellectual property? So if you designed a character, you'd be okay with other people making a profit by using your design?
My point, which you seem to dismiss, is that the restrictions on the use of licensed fabrics is not legally binding. And that is why they did not sue me and that is why they caved so quickly. The companies named have far more money for legal bills than I have. These are billion dollar companies. What they print on the fabric is an improper attempt to extend their property rights on an item that has already been sold. Disney and the rest were not being cheated because they received the requested compensation for the material sold. My use, to make fabric items for sale, was perfectly legal and allowable under the law.
If someone voluntarily offers for sale their intellectual property on fabric, they have relinquished control over how that fabric is used. They sold it; I did not take it as you imply. They allow others to profit from their intellectual property by selling it to use.
FYI - your avatar is a violation of Disney's copyright of Tinkerbell. That appears to make you a hypocrite concerning using the intellectual property of others. While you can claim you are not using it for profit, copyright law disagrees because the copyright owner has the exclusive right to "exhibit" and "display" their creation. You are stealing from Disney.
1 fly I see in the ointment on this whole thing and this is just from my end because I handle licensing in my job. We have an agreement with one of the aforementioned companies and we sell items with their characters. We have a phrase in our contracts that we cannot sell these items to anyone who will re-sell them (third party seller). We can only sell these items to individuals who will be an end-user. A lot of that has to do with royalties and how they are paid to these companies. Violate that section, the contract is null and void and we get sued for everything else and then some. Contracts, copyrights and trademarks amount to about 20 lbs of BS in a 5 pound bag for most people, but let me tell you - break that bag and you won't be able to wash the stink off most of the time. Just my opinion. A lawyer I am not, but I have read enough of those licensing contracts to know - there's a LOT of detail in there that allows companies to pretty much control almost EVERYTHING you do with their artwork or likenesses, including who you sell to, how the end user can use it, and how you have to sell it. If you don't like it, you don't have to sign the contract, but you won't get the rights you want either.
Why do they print that on the fabrics if it isn't legally binding?
Because they want you to believe what they say. Please tell me what law gives them the right to dictate what i can do with their product?
On my website, under Patterns and under Cosmetic Companies, I cite federal case after federal case where the courts state that what is printed on labels is not legally binding on the purchaser. Imagine if Sears told you you could only use their tools on Chevrolet automobiles? Or if General Mills told you that you could not use their cookie mix to make and sell cookies at you church bake sale? Do you think that is reasonable?
Some people do. But the law does not.
Wow. It certainly works. I'm one of those who would read that and follow it, assuming that if it says that, then it's true. Then, everything I sew is for gifts anyway...
Are you saying that the same is true for the Wilton Character Cake pans that say they are for home use as well? That that is unenforcible? Sorry, not trying to be dense, just trying to understand how this translates to cake decorating (ther than the cricut)?
Also, could you explain this statement: "do not in any way suggest that you are selling a licensed product. You can say the product was made from licensed materials." So I can sell a licensed product as long as I don't say I am??? Huh?
Think of this though, you sew it as a gift, little Teddy outgrows the item and your friend sells the item online. Once the item, in this case fabric, has been released into the marketplace there is no way to control what is done with it.
What I'm saying is you can't make a Mickey Mouse shirt and call it that leading people to believe that it is a licensed product. Instead it is a shirt made from Mickey Mouse fabric. You aren't selling a licensed product, you are selling a product made with licensed materials.
Look at it this way, red light and light red mean two totally different things even though all you've done is switch the order of the words around.
Unless when you purchase a pan you sign something saying you won't do xyz then you can. There isn't anything in the law that says that type of restriction is binding upon the purchaser.
Have you visited my website and seen all the information I have out there on trademark and copyright?
Sykel who markets the NCAA fabric came after me and said I couldn't resell the fabric since it violated their contracts with the schools. I pointed out that I couldn't be held to terms in a contract I was not a party to.
Just as an aside his law firm sent us a Cease and Desist letter because we called the owner of Sykel a pompous twit. Threatened to sue us for hundreds of thousands of dollars. According to the counter on their lawyers page (Reed Smith) that threat occurred over 4 years ago.
Major corporations and their law firms are bullies who we have found back down when someone stands up to them.
I'm genuinely surprised that "fair use" hasn't been brought up besides copyright and trademark. In the case of using Tinkerbell as an avatar, that's fair use: not profiting from the use of the image. "Fan films" exist because of fair use...as long as no PROFIT is being made, it's generally all right.
Something to consider, though: If you create something that is entirely you, do you want someone else profiting from it? Or do you want at least a cut? This goes for any creative expression: cake decorating, book writing, jewelry making, etc. You'd at least want them to ask for permission...and simply buying fabric isn't permission to resell it to make a profit (keyword being "profit"). My suggestion is to follow the Golden Rule, because there could be a time when you're in court pleading your case. I'm sure there's a lot more to the story.
(oh...and it's really silly to try to copyright or trademark a circle...unless it's a type of circle unique to the creator...sheesh!)
A bit different than warnings on fabric but it comes to mind......My favorite are the trucks that put a sign on the back of their truck that say you to stay back so many feet because they are not responsible for cracked windshields. Just because they put a sign on their truck, doesn't make them any less liable. I'm going to put a sign on the front of my car that says I'm not responsible for rear ending you. Hey.....I had a sign!
[quote="prettymarysunlight"]
Something to consider, though: If you create something that is entirely you, do you want someone else profiting from it? Or do you want at least a cut? This goes for any creative expression: cake decorating, book writing, jewelry making, etc. You'd at least want them to ask for permission...and simply buying fabric isn't permission to resell it to make a profit (keyword being "profit"). My suggestion is to follow the Golden Rule, because there could be a time when you're in court pleading your case. I'm sure there's a lot more to the story.
quote]
This is how I have interpreted it all: The "cut" has already been made when the designer or creater sells the design or product to a manufacturer, be it textile, pan, appliance, etc. We, the third party, aren't in on the cut unless it is part of a mark-up of the product that is predetermined by the manufacturer. But once we get it, it is ours and the manufacturer, nor the creater/ designer can dictate to us how or what we use it for.
Tabberone, how close am I on this?
I'm genuinely surprised that "fair use" hasn't been brought up besides copyright and trademark. In the case of using Tinkerbell as an avatar, that's fair use: not profiting from the use of the image. "Fan films" exist because of fair use...as long as no PROFIT is being made, it's generally all right.
That is not true. Copyright law does not make the distinction about use being for profit. The owner has the exclusive right to exhibit. Tinkerbell is copyrighted and trademarked. Trademark law covers "commercial use" and does require the use be in commerce to be infringing. I am not familiar with "fan films". However if they are films taken by fans, the copyright would lie with the person doing the filming. If they are using considerable amounts of released films, they are infringing.
This is how I have interpreted it all: The "cut" has already been made when the designer or creater sells the design or product to a manufacturer, be it textile, pan, appliance, etc. We, the third party, aren't in on the cut unless it is part of a mark-up of the product that is predetermined by the manufacturer. But once we get it, it is ours and the manufacturer, nor the creater/ designer can dictate to us how or what we use it for.
Tabberone, how close am I on this?
Correct. The rights owner has received compensation for the fabric through licensing it to be manufactured. As long as you do not misrepresent the item you make as being a licensed product.
Precious Moments v La Infantil, 971 F. Supp. 66 (D.P.R. 1997). Precious Moments sues to stop La Infantil from making and selling bedding from copyrighted, licensed fabric. Court ruled bedding items manufactured with lawfully acquired, authentic fabric with copyrighted design were not infringing derivative works, Court did require La Infantil to attach a notice with a disclaimer because the items were being sold in a store. Precious Moments lost because of the First Sale Doctrine.
Scarves By Vera, Inc. v. American Handbags, Inc, 188 F. Supp. 255 - US: Dist. Court, SD New York 1960. Vera marketed a line of products and accessories for women. American Handbags began using her towels with Vera's logos on them to make handbags. Vera sued. The court dismissed her claims but did require American Handbags to include a better disclaimer because the bags were being sold in stores.
I have not been able to locate any federal court cases that have gone to trial that state otherwise.
Just got off the phone with provo. Here is the link.
http://cakecentral.com/cake-decorating-ftopict-676596.html
So...once we purchase a book, we can take it home, transcribe it into our computers, change the author's name and sell it again as ours because we legally bought it? Not quite...
Something else to consider about using licensed characters: why go through the hassle? Why not just be creative on our own? Maybe it might be "okay" legally, so to speak...but how about ethically? This isn't a bash on anyone who does it, but something to consider. As an artistic person myself, it would bother me to know that someone could just take what I worked hard on and use it to make money for themselves.
In reading through Tabberone's site I can see where they have a leg to stand on against the companies for fabric. But I still don't think you can bring that same logic over to cakes.
For fabric, the person holding the copyright/TM was in the process and approved the final design of the fabric and how it's characters/product were portrayed on the fabric. When someone purchasese the fabric and then creates lets say an apron out of it, the character/product is still in tact for how the copyright holder approved it.
But for the wilton pans, (or someone trying to model the licensed item) no one can control whether or not the character/product/logo looks the same as it should be according to the license holder. This is what they are trying to avoid, any bad reprensentation of their work.
Maybe I missed something in the pages of tabberone that ventures into the recreating of the licensed item, not just using an item that was licensed by the copyright/tm holder. If I did, please point me in the right direction.
Something else to consider about using licensed characters: why go through the hassle? Why not just be creative on our own? Maybe it might be "okay" legally, so to speak...but how about ethically? This isn't a bash on anyone who does it, but something to consider. As an artistic person myself, it would bother me to know that someone could just take what I worked hard on and use it to make money for themselves.
Because little Suzy wants a Disney Princess theme cake. She doesn't want something with just roses on it. I know when I was sewing custom orders people wanted the theme that their kids saw on TV, Spiderman, Disney, etc.
Tabberone,
Are you an attorney or do you work for one? This is not being ugly, so please don't take it that way. I just have a question I want to ask.
Tabberone,
Are you an attorney or do you work for one? This is not being ugly, so please don't take it that way. I just have a question I want to ask.
No, she's not an attorney. She even states that on her website. I don't thiink she works for one either, but I could be wrong about that.
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