Rachel5370 Posted 26 Jul 2010 , 7:28pm

DON'T DO IT!
I know it's not new information to many, but there has been an interesting discussion on Kerry Vincent's Facebook page on this topic. Included in the discussion are some comments from someone from Food Network who was involved in obtaining legal permission for using licensed characters on the shows. It seems that companies who own copyrighted material are on the war-path and have hired people specifically to search websites for infringments. Kerry Vincent is trying to warn people, even small companies, to remove any pictures that could be considered as copyrighted material from their websites. She is also telling people not to make licensed character cakes for sale, it is not worth the hundreds of thousands of dollars it will cost if a person gets sued. This includes giving credit to the designers of cakes we copy, even ones in how-to books. It also includes colleges, sports teams, designs copied from invitations etc. In some cases it doesn't cost much to get written permission, but Disney- forget it! It is a matter of ethics as well as legality- and Ms. Vincent says it will help make us better designers in the end. This is all paraphrased but I will ask if I can post some quotes from this conversation here. TFL!

179 replies
Mindy1975 Posted 26 Jul 2010 , 7:34pm

THank you for that info. I already abide by this rule pretty much, and I know Disney is a big NO NO. I even had a friend once who got taken to court by Disney. She changed the color of Mickey Mouse's pants from red to yellow on the cake and thought that would make a difference. Honestly, the judge threw out the case in her favor just because she did that, basically telling Disney they didn't have a case. She was sooooooooo lucky, she has no idea. I still don't understand why bakers take the risk. I maybe have to turn down a "copyright" image order every once in a while, and usually, I can get the customer to find a way to work around it by making them a "theme" cake for them to add the toy to later. Thanks for the heads up. I headed over to Facebook, and put in a friend request.

Rachel5370 Posted 26 Jul 2010 , 7:48pm

Haha, I just remembered I have some Toy Story cookies posted that I need to take down! I made them for a family member and didn't charge for them- but still... I didn't enjoy doing them- I prefer to do my own designs. I am not even that good at replicating things anyway. ~Rachel

indydebi Posted 26 Jul 2010 , 7:50pm

Mindy you are so right that person was lucky! I've shared this story before, but my neighbor works for Jim Davis, creator of Garfield. Some guy thought if he drew Garfield in blue, that would be ok. Mr. Davis is very protective of his work and took the guy to court, where a judge ruled that even with a different color, it's STILL Garfield!

Mindy1975 Posted 26 Jul 2010 , 7:50pm

ya know, I forgot to say, that I'm glad sometimes that we can't do them character cakes that Wilton puts out. They are a lot of work, and people never realize how long it takes to do them. And they never want to pay you for your time, covering them and piping those silly stars.......lol

CreativeCakeFactory Posted 26 Jul 2010 , 8:06pm

What about purse cakes? So many people ask for LV or Coach purses.

cattycornercakes Posted 26 Jul 2010 , 8:10pm

Hi Rachel...

I saw that whole conversation on Kerry's facebook page yesterday...and I think its still going on today. There is a local person from my area that chimed in on her facebook page about it but I know that he does designer purse cakes. I don't know how he gets around this. And he's been on the local news and also one of the cake challenges on the Food Network so he's not a low profile person. I wonder if he's getting permission somehow?

cakeprof Posted 26 Jul 2010 , 8:13pm
Quote:
Originally Posted by Rachel5370

. Kerry Vincent is trying to warn people, even small companies, to remove any pictures that could be considered as copyrighted material from their websites. She is also telling people not to make licensed character cakes for sale, it is not worth the hundreds of thousands of dollars it will cost if a person gets sued.!




While this is good advice, the advice should be do not them at all (exception is if you are using a Wilton marked for home use and making a cake for your home use). Infringement is based on the reproduction of the work. If you make it and give it away you are still infringing on the copyright. Profit only matters in terms of the amount of damages a copyright holder can seek.

Even without a profit, a copyright holder can pursue damages based on the production of the copyrighted figure. While it would take a pretty vindictive copyright holder to go after someone who made a character cake for a friend for free, they could still come after you and you would be in violation of copyright law. Thus even the hobby baker must comply with copyright law even if they are just doing them for family and friends.

2SchnauzerLady Posted 26 Jul 2010 , 8:20pm

Does this also go for someone like me that does cakes for donations to my charity? I don't make a cent on those cakes, it all goes to the Leukemia & Lymphoma Society. I've got a spongebob cake scheduled, will it be OK if I just don't post the pics?

artscallion Posted 26 Jul 2010 , 8:23pm

This is true, cakeprof. The company can argue that if you had not given away the cake to this person, they might have purchased it from the company. So they are losing sales because you are providing their character for free.

cakeprof Posted 26 Jul 2010 , 8:35pm
Quote:
Originally Posted by TNTFundraiser

Does this also go for someone like me that does cakes for donations to my charity? I don't make a cent on those cakes, it all goes to the Leukemia & Lymphoma Society. I've got a spongebob cake scheduled, will it be OK if I just don't post the pics?




Yes to the first question and No.

Just to reiterate infringement is not based on profit it is predicated on the unlicensed reproduction of a copyrighted work. I deal with copyright multiple times a year in which I reproduce things to be distributed under the fair use exception. The reproductions are not for profit and yet I must make sure everything included is consistent with the fair use exception, the question of profit is irrelevant. If I include something that violates the fair use exception and reproduce it, I am liable.

As to the second question making it and not posting pics does not make it OK. Sure if you do not post the picture you make it harder for a copyright holder to come after you. Making the cake is the infringement, the picture is just the evidence the holder can use to prove you infringed on their copyright. Given the cause you are donating it for, it is likely going to generate bad publicity for a copyright holder if they come after you for doing the cake. Per the terms of copyright if you reproduce the character you have infringed on the copyright. Thus is it okay? No. Do you have much to worry about? I do not think this should stop you from doing the cake. Just be aware that technically you are at risk.

Rachel5370 Posted 26 Jul 2010 , 9:44pm
Quote:
Originally Posted by cakeprof

Quote:
Originally Posted by Rachel5370

. Kerry Vincent is trying to warn people, even small companies, to remove any pictures that could be considered as copyrighted material from their websites. She is also telling people not to make licensed character cakes for sale, it is not worth the hundreds of thousands of dollars it will cost if a person gets sued.!



While this is good advice, the advice should be do not them at all (exception is if you are using a Wilton marked for home use and making a cake for your home use). Infringement is based on the reproduction of the work. If you make it and give it away you are still infringing on the copyright. Profit only matters in terms of the amount of damages a copyright holder can seek.

Even without a profit, a copyright holder can pursue damages based on the production of the copyrighted figure. While it would take a pretty vindictive copyright holder to go after someone who made a character cake for a friend for free, they could still come after you and you would be in violation of copyright law. Thus even the hobby baker must comply with copyright law even if they are just doing them for family and friends.




I should be careful not to represent her message incorrectly. She is saying don't do them! Her advice to some peolpe who had been doing them was to stop and take pictures down. Or rather, they said they were going to do so and she was in favor of it. I am just paraphrasing- and I hope iI got it right here!

tracycakes Posted 26 Jul 2010 , 9:47pm

I tell my customers that I can't make them. I suggest we make a cake with the colors and design to go with the characters and have them purchase toys for the characters. Someone asked me about it the other day and I was glad when they told them that other people told them the same thing - won't do it.

cattycornercakes Posted 26 Jul 2010 , 9:49pm

Cakeprof...any idea how this affects making the designer purce cakes?

cakeprof Posted 26 Jul 2010 , 10:05pm
Quote:
Originally Posted by cattycornercakes

Cakeprof...any idea how this affects making the designer purce cakes?




The logo for sure is protected as well as specific trademark. However the purse should be fine without any of the trademarks. Think about designer knockoffs. They are legal often copying form, fabric type and basic design.

So long as they do not included the trademarks the knockoffs are legal. Clothing designs cannot be copyrighted---which is why the can be imitated. So long as they do not include trademarks--the knock off cake should be fine.

tavyheather Posted 26 Jul 2010 , 10:19pm
Quote:
Originally Posted by cakeprof

Quote:
Originally Posted by cattycornercakes

Cakeprof...any idea how this affects making the designer purce cakes?



The logo for sure is protected as well as specific trademark. However the purse should be fine without any of the trademarks. Think about designer knockoffs. They are legal often copying form, fabric type and basic design.

So long as they do not included the trademarks the knockoffs are legal. Clothing designs cannot be copyrighted---which is why the can be imitated. So long as they do not include trademarks--the knock off cake should be fine.




sorry, please translate...so they can incude the "C" for Coach, for ex., but can not have the TM symbol? maybe I'm missing what the def. of a trademark is...

aundrea Posted 26 Jul 2010 , 10:32pm

just curious- i can purchase any disney/sports team etc cake toppers from my local grocery store. when i use them on my cake does that make the cake illegal?
i dont sell my cakes but from what im reading it doesnt matter if you are selling your cakes or not?
and what about purchasing cake decorations on line? how does that play into all of this?

cakeprof Posted 26 Jul 2010 , 10:53pm
Quote:
Originally Posted by tavyheather

Quote:
Originally Posted by cakeprof

Quote:
Originally Posted by cattycornercakes

Cakeprof...any idea how this affects making the designer purce cakes?



The logo for sure is protected as well as specific trademark. However the purse should be fine without any of the trademarks. Think about designer knockoffs. They are legal often copying form, fabric type and basic design.

So long as they do not included the trademarks the knockoffs are legal. Clothing designs cannot be copyrighted---which is why the can be imitated. So long as they do not include trademarks--the knock off cake should be fine.



sorry, please translate...so they can incude the "C" for Coach, for ex., but can not have the TM symbol? maybe I'm missing what the def. of a trademark is...





A trademark includes any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods.

Not familiar with coach bags so not sure about the Coach "C." If the "C" is used by Coach to identify and distinguish its goods, then it could not be included on a cake--legally. Legal knock offs look like the original however they do not bear the "marks" of the original.

Doug Posted 26 Jul 2010 , 11:34pm
Quote:
Originally Posted by aundrea

just curious- i can purchase any disney/sports team etc cake toppers from my local grocery store. when i use them on my cake does that make the cake illegal?
i dont sell my cakes but from what im reading it doesnt matter if you are selling your cakes or not?
and what about purchasing cake decorations on line? how does that play into all of this?




see this thread for a long discussion of use of purchased items.

in this case -- NO. it would count as resale

http://www.cakecentral.com/cake-decorating-ftopict-688550-.html

Writecakes Posted 26 Jul 2010 , 11:37pm

Good grief. So now it's risky to post a photo of the licensed character cake I made for my child's birthday?

cattycornercakes Posted 26 Jul 2010 , 11:41pm
Quote:
Originally Posted by cakeprof

Quote:
Originally Posted by tavyheather

Quote:
Originally Posted by cakeprof

Quote:
Originally Posted by cattycornercakes

Cakeprof...any idea how this affects making the designer purce cakes?



The logo for sure is protected as well as specific trademark. However the purse should be fine without any of the trademarks. Think about designer knockoffs. They are legal often copying form, fabric type and basic design.

So long as they do not included the trademarks the knockoffs are legal. Clothing designs cannot be copyrighted---which is why the can be imitated. So long as they do not include trademarks--the knock off cake should be fine.



sorry, please translate...so they can incude the "C" for Coach, for ex., but can not have the TM symbol? maybe I'm missing what the def. of a trademark is...




A trademark includes any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods.

Not familiar with coach bags so not sure about the Coach "C." If the "C" is used by Coach to identify and distinguish its goods, then it could not be included on a cake--legally. Legal knock offs look like the original however they do not bear the "marks" of the original.




The Coach "C" has certain placement on the purse to make it a Coach purse. The knock off purses usually use the "C" but in a different placement. I'm pretty sure the knock off purses with the C on them regardless of how the C is placed on the purse is illegal...so I would assume the same is true for a purse cake.

Doug Posted 26 Jul 2010 , 11:55pm
Quote:
Originally Posted by Writecakes

Good grief. So now it's risky to post a photo of the licensed character cake I made for my child's birthday?




you would need to clearly label that you did it for your OWN kid for your OWN PRIVATE party

they're after anything that hints at $$$ being involved in the least way.

BEST would be do a background cake, purchase toys and stick them on.

emiyeric Posted 26 Jul 2010 , 11:58pm

LOL!!!! UGH! I just did a Toy Story cake with GINORMOUS character faces on it (no pretending it wasn't the characters on that one!) for my youngest son's 3rd birthday ... Let me shout to the four winds that it was FOR MY SON! icon_smile.gif And I've got the pictures of my sugared-up progeny to prove it icon_smile.gif.

Writecakes Posted 27 Jul 2010 , 12:11am
Quote:
Originally Posted by Doug

Quote:
Originally Posted by Writecakes

Good grief. So now it's risky to post a photo of the licensed character cake I made for my child's birthday?



you would need to clearly label that you did it for your OWN kid for your OWN PRIVATE party

they're after anything that hints at $$$ being involved in the least way.

BEST would be do a background cake, purchase toys and stick them on.




I don't do any cakes for money. If the assumption could be that licensed cakes, even just done for one's child, could be a copyright issue, then my mother in law is in huge trouble for all the Halloween costumes she has done for my kids so I didn't have to buy those stiff costumes with jagged-edge masks that fall apart after an hour. icon_rolleyes.gif

cakeprof Posted 27 Jul 2010 , 12:15am
Quote:
Originally Posted by Writecakes

Good grief. So now it's risky to post a photo of the licensed character cake I made for my child's birthday?




Well its not particularly new--the difference it the net has made it easier for those paid to locate copyright infringements to find them as the people posting the images are providing the evidence of the infringement.

While a technical violation, it is unlikely to result in legal action. There is little to be gained by going after someone doing it for their child, as there is little commercial value in this instance.

cattycornercakes Posted 27 Jul 2010 , 12:18am

What about cakes using the Tiffany blue or cakes made to look like a Tiffany jewelry box? Just curious. I'm sure there can't be a "copyright" on a color but the tiffany blue identifies with Tiffany jewelry.

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