Copywright Infringement?

Business By tamicat49 Updated 15 Nov 2010 , 2:09pm by kelleym

tamicat49 Posted 14 Nov 2010 , 4:39pm
post #1 of 14

Sorry, newbie here & I'm still a little confused. Does this mean that if you use a character pan & sell that cake do you need to get permission from the company first? or is that only if you sculpt the character?

13 replies
QueenOfSweets Posted 14 Nov 2010 , 4:52pm
post #2 of 14

Character pans are sold with the clause that they're for home use only. If you sell a cake made with a character pan, that's copyright infringement.

CWR41 Posted 14 Nov 2010 , 4:54pm
post #3 of 14

Character pans are for home use only... you can't sell them. HTH.

cakegrandma Posted 14 Nov 2010 , 4:56pm
post #4 of 14

What it means is that you can not replicate that licensed character in any way and even if you contact the license owner they will not, in all probablility give you an OK to do so. You can make a cake with a set up for the character and have the customer put the character they buy on top of it. i.e., a scene from Dora and then the little purchased staues could be set on it, however, Disney is not going to give you permission to use their likenesses. College temas and probably other teams will authorize you to use their logos in most cases. HTH.
evelyn

cakesbycathy Posted 14 Nov 2010 , 4:58pm
post #5 of 14

The character pans are labeled "For Home Use Only" which means that you cannot sell them. You are not going to get permission from the companies that own the copywrites (Disney, Sesame, Nickolodeon, etc.) to recreate their characters to sell them. Sorry, it's not going to happen.

It also applies to sculpted characters.

If you want to sell a cake with licensed characters on it you should have the client purchase the toy and put it on the cake.

kelleym Posted 14 Nov 2010 , 5:52pm
post #6 of 14
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Originally Posted by cakesbycathy

The character pans are labeled "For Home Use Only" which means that you cannot sell them. You are not going to get permission from the companies that own the copywrites (Disney, Sesame, Nickolodeon, etc.) to recreate their characters to sell them. Sorry, it's not going to happen.

It also applies to sculpted characters.

If you want to sell a cake with licensed characters on it you should have the client purchase the toy and put it on the cake.




I am by no means a copyright or trademark lawyer, but from what I've read at tabberone.com, the "For Home Use Only" stamp means pretty much nothing. You didn't sign anything or agree to anything when you bought the pan. Furthermore, when I used to make character pan cakes, I thought "For Home Use" meant that the pan was not made of commercial-grade materials and wouldn't hold up to high-volume use.

This doesn't address what the copyright-holder might think if they found out you were selling cakes made with those pans. They would probably not be amused. But you need to weigh the risks and/or consult with your own lawyer before deciding whether or not to sell this type of cake.

Tabberone has taken on some of the big boys in court - and won. The site is fascinating if you're interested in these types of issues.

http://www.tabberone.com/Trademarks/trademarks.shtml

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You may have noticed that there are a lot of pundits who will tell you what you can and cannot do with patterns, licensed fabrics, embroidery designs, pictures, and descriptions, but none can point you to specific court cases or federal law that supports their claims. We can and we do. What we find particularly galling are the people who make claims such as "designers can put restrictions on use if they want" and "I think if it is actually printed on the fabric, you should respect the copyright wishes of the designer" without considering the legal ramifications. Once the item is sold why should someone be able to control what you do with it? The First Sale Doctrine says they can't. But, there are some logical restrictions. You cannot misrepresent the item when you resell it. We started these web pages in 2001 and we have yet to have anyone provide us with court cases or federal law backing their false claims.


johnson6ofus Posted 14 Nov 2010 , 6:41pm
post #7 of 14

Wow- really interesting stuff Kelly! I am no lawyer either, and many of us just want to stay outta courts any way we can... icon_smile.gif, but I can see the similarity between the fabric use and the Wilton pan use. Heck, if I scare you and you go away, I win (regardless if my claims are right or wrong...).

nannykaren Posted 14 Nov 2010 , 7:11pm
post #8 of 14

All my wilton books say for personal and professional use

nannykaren Posted 14 Nov 2010 , 7:12pm
post #9 of 14

All my wilton books say for personal and professional use

jason_kraft Posted 14 Nov 2010 , 10:56pm
post #10 of 14
Quote:
Originally Posted by kelleym

Tabberone has taken on some of the big boys in court - and won. The site is fascinating if you're interested in these types of issues.



I was only able to find one action brought by Tabberone (linked below), a motion for declaratory judgment that was rendered moot when Disney withdrew their complaints to Tabberone's eBay auctions. No case law was decided on here. Were you referring to a different case?

http://www.tabberone.com/Trademarks/DisneyLawsuit/ourlawsuit/complaint.html

The First Sale Doctrine may indeed be applicable to incorporating licensed fabric into an item for purchase, and IMHO it would also be applicable to purchasing cake toppers for commercial cakes, since you would be selling the actual licensed item you purchased (the cake topper).

However, it would certainly not be applicable to character-shaped cake pans, since you are not selling the cake pan itself as part of your cake, you are selling a likeness of the image (a copy, if you will) in cake form that was created using the cake pan. This would be the equivalent of buying a DVD, using a computer to copy the DVD, and selling the copies commercially while retaining the original. The First Sale Doctrine applies only to the original item purchased, not copies of the item or other products created with the likeness of said item.

kelleym Posted 14 Nov 2010 , 11:05pm
post #11 of 14
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However, it would certainly not be applicable to character-shaped cake pans, since you are not selling the cake pan itself as part of your cake, you are selling a likeness of the image (a copy, if you will) in cake form that was created using the cake pan. This would be the equivalent of buying a DVD, using a computer to copy the DVD, and selling the copies commercially while retaining the original. The First Sale Doctrine applies only to the original item purchased, not copies of the item or other products created with the likeness of said item.



Well, again, I'm not a lawyer (and I don't think you are either, if memory serves), but a cake pan is sold with the intended use of people making cakes with it. Wilton (and the copyright holders) know what you're going to use those pans for when you buy them. DVD's are not sold with the intended use of people making copies of them.

It does not make logical sense (to me) that a company can bind you under some magical, non-specific, unwritten agreement not to use your own pan in a certain way just by stamping "For Home Use Only" on it.

I'm certainly not advocating anyone go out and start selling character pan cakes. It's probably a bad idea. (And piping all those little stars? Hoo boy! You'd have to add the price of carpal tunnel surgery to the cake...)

jason_kraft Posted 14 Nov 2010 , 11:13pm
post #12 of 14
Quote:
Originally Posted by kelleym

Well, again, I'm not a lawyer (and I don't think you are either, if memory serves), but a cake pan is sold with the intended use of people making cakes with it. Wilton (and the copyright holders) know what you're going to use those pans for when you buy them. DVD's are not sold with the intended use of people making copies of them.



Everything you've said is correct. I was referring to the Doctrine of First Sale, which is a strong argument only for licensed items that are physically included in resold products.

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It does not make logical sense (to me) that a company can bind you under some magical, non-specific, unwritten agreement not to use your own pan in a certain way just by stamping "For Home Use Only" on it.



That's because the "Home Use Only" stamp is not what restricts the commercial use of the likeness of licensed characters...copyright law does that. No agreement is necessary to enforce copyright law as creative works are automatically protected from unauthorized copying, the stamp is merely a courtesy.

I am not a lawyer and this is not to be considered legal advice, but I do have a pretty good understanding of IP law.

leily Posted 15 Nov 2010 , 1:52pm
post #13 of 14
Quote:
Originally Posted by kelleym

Tabberone has taken on some of the big boys in court - and won. The site is fascinating if you're interested in these types of issues.




It's interesting that you bring this site up kelley. Tabberone posted on CC with some of this same information awhile back and I had a question but they never responded giving me an answer. I also am not a trademark/copyright lawyer, however my gist of her website was that she was dealing with fabric, embroidery designs etc... Which in that case i can understand that she could fight the "for home use" that is stamped on fabric because she is not recreating, or modifying the tradmarked/copyrighted character in anyway. The holder of that copyright approved the image that is being used, she is just using it on an item. (like a toy being used on a cake)

I asked how the "for home use" applied to the cake side of things, and being able to recreate the copyrighted image in cake (which means that the copyright holder does NOT have final say in what their image looks like) but never received a response.

kelleym Posted 15 Nov 2010 , 2:09pm
post #14 of 14

I've asked my lawyer for an opinion. Will post back when I receive it.

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