Provo Craft; Professional License; Make The Cut

Decorating By LegalBeagle2003 Updated 18 Apr 2010 , 8:05pm by CeeTee

LegalBeagle2003 Posted 16 Apr 2010 , 4:38am
post #1 of 21

Hi there! My wife is a licensed home decorator in a state where that sort of thing is legal. I have little to do with her cake decorating other than eating the benefits. I am a partner in a law firm that deals with the manufacturing industry. My wife is a regular user on this forum as well as others and she usually enjoys spending time with her virtual friends.

Background: For the last 48 hours I have seen my wife go from joy to anger to disgust back to anger to utter devastation. After seeing her mood changes reflected in the text messages and phone calls we exchange during the day, I asked what in the world had turned my normally happy bride into a raving lunatic. The answer was simple: Provo Craft and the Cricut Cake.
After she told me all about what was seemingly going on, I did a bit of research and spoke with some of my colleagues. I then returned to the conversation with my wife and explained a few things. She was amazed and back in a good mood and asked to post my comments in this forum for others to read. Please understand that this post is in no way meant as legal advice. It merely contains the musings of someone that asks for proof when the crowd demands to burn the witch.

Angel Policy: I will not argue the general legality of Angel Policies. I simply read the Angel Policy that Provo Craft has posted on their web site and I fail to see what has everyone in an uproar. The Angel Policy allows for the production of up to fifty (50) craftwork items per month and two hundred (200) craftwork items per year. A craftwork item in my opinion can clearly interpreted as a cake. So without buying a professional license, anything on the cartridges can be used on fifty cakes a month or 200 per year. The only entities that would have to purchase a professional license are those who use a particular design on more than the specified number of cakes. I believe if one owns a bakery selling more than 200 cakes a year, one would be used to paying licensing fees. I am sure that the evident interest of the baking industry triggered the creation of a professional license. Such a license would likely take months to negotiate, I have been in similar negotiations and they take a vast number of man-hours to complete.
Those questioning the need for an Angel Policy should read the legal disclaimer on a $10 clipart CD at Target. You will be surprised that even those have restrictions. Even the simplest shapes on the cartridges were created by someone and that someone is likely getting a small percentage of the proceeds of every cartridge sold. These royalties are common practice in the graphic industry. We negotiated a contract for images to be used in a national marketing campaign for a client and the price changed depending of the geographical scope the images were to be used in.
Footnote: Altering the cut-out by further processing should also makes it ones own and rids one of any restriction entirely - bending, shaping, trimming, painting may do the trick here.

Make The Cut: Provo Craft filed a complaint with the United States District Court for the Eastern District of Wisconsin, Milwaukee Division. The court documents are public record and I was able to purchase them for about $10 online. It is an interesting document and I recommend it to anyone. The reasons for the complaint are as follows:
* Make The Cut allegedly produced a product that allowed using cartridges that one does not own by circumventing their built-in copy protection, allowing exchange of images on those cartridges
* Make The Cut allegedly uses a mark protected under Federal Trademark law prominently in their advertising
The first allegation brings back memories of the Napster law suits a few years ago. A copyright holder is entitled to protect their work and as much as we all would like to wildly trade software, we do not since we know that it is not only illegal, but also immoral. The makers of the Make The Cut software would surely be seeking legal counsel and monetary relief if someone would buy their product and find a way to share it with their friends for free. Why would a different set of rules apply to Provo Craft? Make The Cut also allegedly allowed their users to trade these copyright protected images through their web site, which again sounds like Napster.
The second allegation refers to the prominent use of a registered mark in ones advertising. If any of you decorators would advertise to be the home of the true Tiffanys wedding cake, without checking with the jewelry store first, a law suit would likely ensue.
These are allegations of course and I am certain that Make The Cut will have their day in court to defend themselves. Having said that, I am of the opinion that Provo Craft has a right to defend themselves as well.

Miss McClure: There has been much said on the subject and since I know neither Miss McClure or anybody at Provo Craft personally I will not chime in on what transpired between the parties. I will however say that, having dealt with lots of them, confidentiality agreements are usually very harsh and if Provo Craft has been in touch with anybody regarding product testing, the chances of someone coming forward are almost zero. Provo Craft would jeopardize any future R&D by revealing their methods and practices. The future of a company that arguably is loved my hundreds of thousands of users is likely more important to them than the friends and followers of Miss McClure demanding proof. My law professor always told us that When you hear hoofbeats behind you, don't expect to see a zebra and the aphorism has held true time and time again. Can someone come up with a new product and launch it in as little time as Miss McClure alleges? Maybe so, but the probability of Provo Craft having worked on it prior is at least just as high. Malcolm Gladwell wrote in the New Yorker The law of the conservation of energy, so significant in science and philosophy, was formulated four times independently in 1847, by Joule, Thomson, Colding and Helmholz. They had been anticipated by Robert Mayer in 1842. There seem to have been at least six different inventors of the thermometer and no less than nine claimants of the invention of the telescope. Typewriting machines were invented simultaneously in England and in America by several individuals in these countries. The steamboat is claimed as the exclusive discovery of Fulton, Jouffroy, Rumsey, Stevens and Symmington.
I suggest to try Provo Craft and Miss McClure in the court of law, not in one of public opinion.

I hope that this post, lengthy as it may be, helps some people like it helped my lovely wife. I shall return to the world of books and lawyers. The best to all the decorators and their spouses.

Yours truly,

The Legal Beagle

20 replies
SpecialtyCakesbyKelli Posted 16 Apr 2010 , 5:14am
post #2 of 21

Thanks for spending your time posting to us. We've been looking for a lawyer all day! LOL
If you have time to answer questions....my first question is, how can cricut copyright an image that has been reproduced many times? (hearts, diamonds, circles, squares, triangles....and the list goes on)
I wasn't aware of the "angel policy", but if I'm understanding this correctly... this is saying that if I do less than 200 cakes a year using the cricut, then I'm okay under the angel policy. My question now is, that how they can prove which cakes I've used the cricut on and which I haven't? Lets take a heart for example, I have a heart shape cutter that I have used for a long time. But if I do one cake using the cricut cake, and the other with the cutter... could they actually argue the fact that I didn't use my cutter on a cake.....and in fact used the cricut? I produce over 500 cakes a year and DO NOT want to get into a legal matter with cricut. I think we are all worried about this...as I'm sure that most of the decorators on here are like me, and do not have the time to invest in a court battle.

Texas_Rose Posted 16 Apr 2010 , 5:31am
post #3 of 21

Thanks for taking the time to explain all of this to us! You're awesome!!!

cupcake_cutie Posted 16 Apr 2010 , 5:49am
post #4 of 21

Thank you! Your wife is one lucky lady for you to do all this research and to join a website to explain it to her CC buddies!

ayerim979 Posted 16 Apr 2010 , 5:50am
post #5 of 21

I totally agree. We really appreciate this information.

HowCoolGomo1 Posted 16 Apr 2010 , 5:52am
post #6 of 21
Quote:
Originally Posted by LegalBeagle2003

Hi there! My wife is a licensed home decorator in a state where that sort of thing is legal. I have little to do with her cake decorating other than eating the benefits. I am a partner in a law firm that deals with the manufacturing industry. My wife is a regular user on this forum as well as others and she usually enjoys spending time with her virtual friends.

Background: For the last 48 hours I have seen my wife go from joy to anger to disgust back to anger to utter devastation. After seeing her mood changes reflected in the text messages and phone calls we exchange during the day, I asked what in the world had turned my normally happy bride into a raving lunatic. The answer was simple: Provo Craft and the Cake.
After she told me all about what was seemingly going on, I did a bit of research and spoke with some of my colleagues. I then returned to the conversation with my wife and explained a few things. She was amazed and back in a good mood and asked to post my comments in this forum for others to read. Please understand that this post is in no way meant as legal advice. It merely contains the musings of someone that asks for proof when the crowd demands to burn the witch.

Angel Policy: I will not argue the general legality of Angel Policies. I simply read the Angel Policy that Provo Craft has posted on their web site and I fail to see what has everyone in an uproar. The Angel Policy allows for the production of up to fifty (50) craftwork items per month and two hundred (200) craftwork items per year. A craftwork item in my opinion can clearly interpreted as a cake. So without buying a professional license, anything on the cartridges can be used on fifty cakes a month or 200 per year. The only entities that would have to purchase a professional license are those who use a particular design on more than the specified number of cakes. I believe if one owns a bakery selling more than 200 cakes a year, one would be used to paying licensing fees. I am sure that the evident interest of the baking industry triggered the creation of a professional license. Such a license would likely take months to negotiate, I have been in similar negotiations and they take a vast number of man-hours to complete.
Those questioning the need for an Angel Policy should read the legal disclaimer on a $10 clipart CD at Target. You will be surprised that even those have restrictions. Even the simplest shapes on the cartridges were created by someone and that someone is likely getting a small percentage of the proceeds of every cartridge sold. These royalties are common practice in the graphic industry. We negotiated a contract for images to be used in a national marketing campaign for a client and the price changed depending of the geographical scope the images were to be used in.
Footnote: Altering the cut-out by further processing should also makes it ones own and rids one of any restriction entirely - bending, shaping, trimming, painting may do the trick here.

Make The Cut: Provo Craft filed a complaint with the United States District Court for the Eastern District of Wisconsin, Milwaukee Division. The court documents are public record and I was able to purchase them for about $10 online. It is an interesting document and I recommend it to anyone. The reasons for the complaint are as follows:
* Make The Cut allegedly produced a product that allowed using cartridges that one does not own by circumventing their built-in copy protection, allowing exchange of images on those cartridges
* Make The Cut allegedly uses a mark protected under Federal Trademark law prominently in their advertising
The first allegation brings back memories of the Napster law suits a few years ago. A copyright holder is entitled to protect their work and as much as we all would like to wildly trade software, we do not since we know that it is not only illegal, but also immoral. The makers of the Make The Cut software would surely be seeking legal counsel and monetary relief if someone would buy their product and find a way to share it with their friends for free. Why would a different set of rules apply to Provo Craft? Make The Cut also allegedly allowed their users to trade these copyright protected images through their web site, which again sounds like Napster.
The second allegation refers to the prominent use of a registered mark in ones advertising. If any of you decorators would advertise to be the home of the true Tiffanys wedding cake, without checking with the jewelry store first, a law suit would likely ensue.
These are allegations of course and I am certain that Make The Cut will have their day in court to defend themselves. Having said that, I am of the opinion that Provo Craft has a right to defend themselves as well.

Miss McClure: There has been much said on the subject and since I know neither Miss McClure or anybody at Provo Craft personally I will not chime in on what transpired between the parties. I will however say that, having dealt with lots of them, confidentiality agreements are usually very harsh and if Provo Craft has been in touch with anybody regarding product testing, the chances of someone coming forward are almost zero. Provo Craft would jeopardize any future R&D by revealing their methods and practices. The future of a company that arguably is loved my hundreds of thousands of users is likely more important to them than the friends and followers of Miss McClure demanding proof. My law professor always told us that When you hear hoofbeats behind you, don't expect to see a zebra and the aphorism has held true time and time again. Can someone come up with a new product and launch it in as little time as Miss McClure alleges? Maybe so, but the probability of Provo Craft having worked on it prior is at least just as high. Malcolm Gladwell wrote in the New Yorker The law of the conservation of energy, so significant in science and philosophy, was formulated four times independently in 1847, by Joule, Thomson, Colding and Helmholz. They had been anticipated by Robert Mayer in 1842. There seem to have been at least six different inventors of the thermometer and no less than nine claimants of the invention of the telescope. Typewriting machines were invented simultaneously in England and in America by several individuals in these countries. The steamboat is claimed as the exclusive discovery of Fulton, Jouffroy, Rumsey, Stevens and Symmington.
I suggest to try Provo Craft and Miss McClure in the court of law, not in one of public opinion.

I hope that this post, lengthy as it may be, helps some people like it helped my lovely wife. I shall return to the world of books and lawyers. The best to all the decorators and their spouses.

Yours truly,

The Legal Beagle




You're a great husband!

LegalBeagle2003 Posted 16 Apr 2010 , 1:01pm
post #7 of 21

Apparently now I have a track record to live up to. My wife said some of you had questions, so I told her I will charge her a steak dinner per post. In that spirit I suggest to keep asking. I also had my first PM on Cake Central, thank you for that.

Copyright: You may copyright any shape you create as your creative work. When protecting a generic shape it can be difficult to impossible to prove if the shape in question is yours. While electronic cutting instructions (i.e. SVG files) can possibly be proven to be the same set of instructions as another even on simple shapes, comparing the actually cut out pieces of gum paste is likely impossible. So the copyright protection on a heart, a diamond or a circle for example is only enforceable if you compare the electronic cutting instructions. If one was to copy the cutting instructions from a cartridge to a file, the copyright infringement would be fairly easy to prove. Copyright enforcement on the product of those instructions, i.e. comparing circles on your cake to circles that were cut with the Cricut is unlikely. Scrolls and the like are much easier to protect because their features are much easier to compare visually.

One reason corporations protect their copyrighted products once they are made aware of an infringement is that they can actually lose the protection afforded to them if it is not enforced. This applies to trademarks more than copyrights. If one allows the trademarked word or phrase to be diluted too much, the mark is lost and free for use by anyone. History is full of such marks, such as Aspirin and Velcro.

Angel Policy: The Angel Policy, again in my interpretation and not implying I am rendering legal advice, applies to 200 craftworks using the same design. So up to 200 cakes using a particular design element (i.e. one particular flower) would be covered, if you produce more than 200 cakes within the same 12 month time period with the same flower, you would be required to buy the professional license. In my opinion this is fair. Judging by my wifes business, I doubt that most people would even make 200 polka dot cakes a year, much less cakes using the same flower.

Depending on the price of the professional license, one may have to charge an extra dollar per cake to allow for licensing (if the license for the cartridge for $200 for example). This in my opinion is merely cost of doing business.

Yours truly,

The Legal Beagle

SpecialtyCakesbyKelli Posted 16 Apr 2010 , 5:00pm
post #8 of 21

Thank you soooooooooooo much for your time. I hope you enjoy your steak. If I had your address I would send you and your wife a bottle of wine to go with it! icon_biggrin.gif

HauteCoutureCookies Posted 16 Apr 2010 , 5:18pm
post #9 of 21

Thank you so much for the info. you made it very clear and easy to understand. Enjoy your steak!

victoria7310 Posted 16 Apr 2010 , 6:02pm
post #10 of 21

Thank you for taking the time to explain clearly. Your interpretation does make sense. Your wife does indeed owe you, as we owe her icon_wink.gif

tabberone Posted 16 Apr 2010 , 7:26pm
post #11 of 21
Quote:
Quote:

LegalBeagle2003: Angel Policy: I will not argue the general legality of Angel Policies.




Well, I do. Whether or not they grant permission, there is not permission to grant. The file cuts and other items made from these machines are not copyrightable not are they covered by any copyrights. PC cannot restrict their use.

Quote:
Quote:

LegalBeagle2003: Altering the cut-out by further processing should also makes it ones own and rids one of any restriction entirely




That is an urban myth. Courts use the ordinary person test when juding copying. If an ordinary person, seeing both items side by side, would conclude one was copied from the other, it was. The rule is significant similarities.

Quote:
Quote:

LegalBeagle2003: Provo Craft filed a complaint




You are quoting from the complaint. Lawyers always lie in their filing to make their case look better. Wait for the court opinion before you start making judgments on the validity of the allegations. Reverse engineering is allowed under copyright law.

The use of a trademark is allowed provided it in a descriptive sense and not as a trademark. Saying your cartridge will work in a PC machine is not infringement.

tabberone Posted 16 Apr 2010 , 7:44pm
post #12 of 21
Quote:
Quote:

LegalBeagle2003: Copyright: You may copyright any shape you create as your creative work.




Only if it has originality. How many ways are there to draw a rose? Not many. While the qualification of originality is low, and as the court say it should be low, the simpler a design it the less likely it will be afforded protection.

But you are giving people the impression that the item produced by the machine comes under their copyrights. They copyrights are for the software that controls the machine and it questionable that machine software is software as interpreted by the definition under copyright law. See Action Tapes vs Kelly Mattson, 462 F.3d. 1010 (8th. Cir. 2006) where the court ruled that instructions to operate a machine were not software because software is interactive and instructions on a CD to a sewing machine were not (upheld on other grounds).

The items made do not come under the copyrights because they are useful items. Useful items are not copyrightable. To be protected by the copyright, and to be subject to control by the copyright owner, the item made must in of itself be copyrightable. In Baker vs Selden, 101 US 99 (1879), the court rejected the idea that dresses made from copyrighted patterns were covered by the copyright saying:

  

Quote:
Quote:

In Drury v. Ewing (1 Bond, 540), which is much relied on by the complainant, a copyright was claimed in a chart of patterns for cutting dresses and basques for ladies, and coats, jackets, &c., for boys. It is obvious that such designs could only be printed and published for information, and not for use in themselves. Their practical use could only be exemplified in cloth on the tailor's board and under his shears; in other words, by the application of a mechanical operation to the cutting of cloth in certain patterns and forms. Surely the exclusive right to this practical use was not reserved to the publisher by his copyright of the chart. Without undertaking to say whether we should or should not concur in the decision in that case, we think it cannot control the present.


rosiecast Posted 16 Apr 2010 , 8:27pm
post #13 of 21

Thanks Karen or Michael. I posted a link to your provo craft article (hall of shame nomination!!) on another post.

You guys rock!!!

foxymomma521 Posted 16 Apr 2010 , 9:02pm
post #14 of 21

Thanks legalbeagle!

Crabbabs Posted 16 Apr 2010 , 9:07pm
post #15 of 21

Thanks legalbeagle! I really appreciate your input as I just had a discussion with my lawyer friends and his observations were similar to yours. You noted that your post is in no way meant as legal advice. My friend also mentioned that he would be reluctant to give legal advice in this situation. I would caution tabberone on giving advice because as I understand it, he/she could be sued for malpractice even if he/she is not a lawyer.

tabberone Posted 16 Apr 2010 , 9:16pm
post #16 of 21
Quote:
Originally Posted by Crabbabs

Thanks legalbeagle! I really appreciate your input as I just had a discussion with my lawyer friends and his observations were similar to yours. You noted that your post is in no way meant as legal advice. My friend also mentioned that he would be reluctant to give legal advice in this situation. I would caution tabberone on giving advice because as I understand it, he/she could be sued for malpractice even if he/she is not a lawyer.




So if someone had a cut finger and you advised them to put a bandage on it and it later developed an infection, you are guilty of practicing medicine without a license?

The courts consider practicing law without a license to represent yourself as a lawyer for a fee or to help some prepare court documents. I am a far distance from that. Your friend should be reluctant especially if his area was not IP law. And note, I quote court decisions to back what I say.

cakesbycathy Posted 16 Apr 2010 , 11:32pm
post #17 of 21
Quote:
Originally Posted by Crabbabs

Thanks legalbeagle! I really appreciate your input as I just had a discussion with my lawyer friends and his observations were similar to yours. You noted that your post is in no way meant as legal advice. My friend also mentioned that he would be reluctant to give legal advice in this situation. I would caution tabberone on giving advice because as I understand it, he/she could be sued for malpractice even if he/she is not a lawyer.




She is NOT giving legal advice. She is telling (and using court documents to back up her statements) what the courts have already said in regards to copywrite. BTW, she is a little bit of an expert, having gone to battle (and been successful thumbs_up.gif )with a number of big name corporations over use of their images.

mycats Posted 17 Apr 2010 , 4:31am
post #18 of 21
Quote:
Originally Posted by LegalBeagle2003



Make The Cut: Provo Craft filed a complaint with the United States District Court for the Eastern District of Wisconsin, Milwaukee Division. The court documents are public record and I was able to purchase them for about $10 online. It is an interesting document and I recommend it to anyone. The reasons for the complaint are as follows:
* Make The Cut allegedly produced a product that allowed using cartridges that one does not own by circumventing their built-in copy protection, allowing exchange of images on those cartridges


The Legal Beagle




LegalBeagle - Your summary or statement regarding the Make the Cut capabilities is completely wrong. The software provided the capability to make a backup copy of the images of cartridges, but you must have the cartridge physically in the Cricut to do so. It did not allow you to backup or use an image from the cartridges you did not have
.
Provocraft is alleging that this would allow people to exchange files. This is no different than using the CD ripping software to make copies of CD's that you own. The software performs the backup function only. It is the person who then either keeps the file for themself only or shares with others. Personally the capability to have a backup copy of my $90 cartridges seems perfectly reasonable as Provocraft will only warranty them for 90 days. So if anything happened to a cartridge - spill of coffee etc - I would be out of luck and have to repurchase it. I make backups of computer programs that I purchase as well. As long as I do not share these this is perfectly legal and actually a very responsible thing to do.

galliesway Posted 18 Apr 2010 , 3:51pm
post #19 of 21

Thanks for the info Legal Beagle. Hmmm. Makes one wonder no cake pictures only posts about the whole PC/ Character license issues. I would like to see them makes cakes and have Disney find out and then see what happens. I only do this as a hobby and if I was going to do this as a business I would not want to jeopardize it any way shape or form. I have a professional license that could be at risk anyway. Guess we will have to see how this plays out.
I will now go back to my reading instead of posting unless of course I'm seeking help or feel I have something I can contribute to all the fantastic decorators on here.

neelycharmed Posted 18 Apr 2010 , 4:53pm
post #20 of 21

was ready to buy a cake cricut, now I am more confused then ever...
icon_confused.gif

CeeTee Posted 18 Apr 2010 , 8:05pm
post #21 of 21
Quote:
Originally Posted by neelycharmed

was ready to buy a cake , now I am more confused then ever...
icon_confused.gif




the TooLongicon_biggrin.gifidn'tRead version is that there is a lot of Legal Wank going with Provo surrounding the launch of Cricut Cake. I read through it all and I know a lot about Law and *I'M* confused. The whole thing has gotten way out of hand.

It's bad enough there's so much drama over what kind of items people use to make/decorate their cakes to begin with. This is just one more log for that raging bonfire.

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