Copyright - Only The Customer Buy The Figure?
Decorating By cai0311 Updated 18 Jul 2010 , 2:45am by Doug
I have read all of the 100's of posts about copyright firgures, cakes, themes... Let me get it out there: I AGREE THAT COPYRIGHT FIGURES, CAKES, THEMESE AND EVERYTHING SHOULD NOT BE SOLD (that is not what my post is about and I don't want this thread to turn into that).
Anyway - usually someone posts that a cake could be done in a matching color scheme and the customer then puchases a topper or toys of some sort to place on the cake to pull the theme together. My question is does it have to be the customer that buys the topper or toys? Can I buy it instead?
I am asking for 2 reasons:
1. I know to buy something that doesn't weight a lot since it will be placed on cake.
2. I would like a picture of the finished product taken in a professional manner (not with someone kid's in the pic or their living room in the background) and I can't get that if the customer finishes the cake once it is dropped off.
As a side thought, if the only copyright part of the cake is the purchased toy can a pic of the cake be posted on a website?
Kitagrl,
That is what I thought also. I wasn't sure why it would matter who bought the toys - but wanted to double check because all the posts read "if the customer wants to buy...".
As for posting it on a website - any ideas if that would be in the clear?
I usually end up buying the figures so the customer doesn't have to do the work...but I pass on costs so its the same thing as them buying it. I've also had moms that don't want to spend extra money so they wash their kid's toys and give them to me to put on the cake.
I post them on my website if they have purchased toys on them....
Correct me if I am wrong, but I think the idea is that you are not supposed to make a profit off a copyrighted item. So if you buy a figurine and only charge your customer exactly what you paid for it - and charge whatever you want for the cake, then it might be ok.
I don't see how that could be illegal...otherwise it would be illegal to, say, buy Disney stuff at the Disney store on clearance and then resell for a profit on Ebay????
I've never heard of that being illegal.....
I just thought it was a matter of, we are not supposed to reproduce a copyrighted character without express permission. In buying the toy, the toy people got permission and we paid the toy people who in turn paid the copyright fees.
If it illegal to buy the toy and putting on a cake and sell them. Then why do they sell them in cake shops and at publix they are make money off them. Since I can't get my license where I live that where I get my stuff and I put my pictures on my website. I was told that if you buy the toy then you can do want you want with it. You just can't play it off like it your idea or put a copyright on it. Also if you have your license then you can buy them from decopac or bakery crafts and if you do just like on the card the toy come with you can sell them.
I don't see how that could be illegal...otherwise it would be illegal to, say, buy Disney stuff at the Disney store on clearance and then resell for a profit on Ebay????
yes, it is. As is just buying it yourself and passing along the exact cost.
And if Disney catches you at it.......
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its this simple: have you purchased a RESALE license?
That's what you buy when you buy a DecoPac kit -- the figures AND a resale license.
You don't buy a resale license when you go to toy store/dept and purchase the toy.
If you've ever shopped the candy section at a big box membership club you've seen that some products marked "labeled for resale" and other are not so labeled.
Meaning if they ARE so marked you can buy them, take them home and resell them for whatever you can get for them (the life blood of sports concession stands, class fundraiser, etc.)
The ones NOT labeled for resale are for personal consumption only or giving away for FREE as treats (Halloween, goody bags, etc.)
You must have the right to RESELL
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the VERY simple answer is:
Parents buy the toy 1 or more weeks in advance and give it to you at least 1 week in advance.
you now know size, weight, blah, blah, blah.
you now can incorporate easily
you now can get professional pictures
you've done it all fully legally with out getting into the resale issue.
What if you buy the toy and don't pass the fee onto the customers? Same thing? If I am selling a cake for $350 and I need to buy a $15 toy I don't mind eating the cost of it.
In either this case or as Doug had mention I can add these cakes to my website without worry?
I'm no legal expert. That said ......
I would think the "free" item would be viewed as something that enhances the sale of your cake; as something that adds value to your cake; as something that enables you to price your cake the way you do.
Without the "free" figurine, your cake wouldn't be worth as much or you wouldn't be able to sell it at all.
I think it's treading into dangerous "semantics" territory and I personally wouldn't want to chance it.
To me, this is just like giving the cake away for free and selling them a box for $350. My husband watches Judge Judy on his lunch hour at work and tells me she's had cases exactly like this ..... and she didn't buy that line of bull either. 
What if you buy the toy and don't pass the fee onto the customers? Same thing? If I am selling a cake for $350 and I need to buy a $15 toy I don't mind eating the cost of it.
In either this case or as Doug had mention I can add these cakes to my website without worry?
I'm no legal expert. That said ......
I would think the "free" item would be viewed as something that enhances the sale of your cake; as something that adds value to your cake; as something that enables you to price your cake the way you do.
Without the "free" figurine, your cake wouldn't be worth as much or you wouldn't be able to sell it at all.
I think it's treading into dangerous "semantics" territory and I personally wouldn't want to chance it.
To me, this is just like giving the cake away for free and selling them a box for $350. My husband watches Judge Judy on his lunch hour at work and tells me she's had cases exactly like this ..... and she didn't buy that line of bull either.
YES -- to be avoided for exactly the reasons Debi gave.
It does enhance the value.
and
how can you truly prove it is "free" and the cost is not hidden somewhere? (it can be done, but an accounting challenge)
better to just let customer buy it and give it a week in advance.
make it part of the contract.
have them initial that clause and sign whole contract.
and if they don't get it to you -- ah well -- their problem, not yours.
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not to mention --
do you really want to be the cake person who gives FREE toys?
they may be free to the customer but they aren't to you and that becomes an expense you have to eat.
about the only way to eat it legally is the toys are a free limited promotional item (think how McDs and BK do this with their kids meals).
But even then -- that's an expense you don't need or want to have to do all the paperwork to make it fully beyond IRS and copyright holder challenge
and the copyright holder CAN challenge you on this as McDs, et. al. do LICENSE the characters/items they use as a promotion.
it goes back to the added value, you increasing profits as a result of promotion, etc.
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so again -- customer buys, no us the cake makers
Correct me if I am wrong, but I think the idea is that you are not supposed to make a profit off a copyrighted item. So if you buy a figurine and only charge your customer exactly what you paid for it - and charge whatever you want for the cake, then it might be ok.
Copyright rules do not just apply to goods sold!
It is the recreation or use of the image or design without permission that is copyright infringement - regardless of it you make the cake and serve it to your family, give it to a friend as a gift, or sell it to a customer.
I'm confused. haha.
Even if the customer buys, I would still be profiting off the toys they bought, because the attractiveness of the cake is still mostly because you're putting toys on it....right?
yes
McDonalds will sell the toys separately so I'm not how what Doug mentioned applies.
they can sell because they have purchase a license to sell them as part of the license they purchased to use them as a promotional item.
they are an official licensee -- with specific permission to distribute the product in specific ways.
or the have the right to make copies of the product and sell them -- ie they have a copyright license.
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