Illegal To Create A Cake Theme Of An Existing Brand?!

Decorating By AllieBakes Updated 19 Mar 2011 , 4:33am by mahal50881

AllieBakes Posted 18 Mar 2011 , 6:20pm
post #1 of 17

I am curious to know if it is illegal to make cakes themed about a brand or company. I have made Ferrari themed. Foo-Fa (from Yo Gabba Gabba), Mario, Captain Morgan Rum, Ciroc, Juicy Couture, Camaro, Dexter, Eeyore, The Little Mermaid, Snow White & the 7 Dwarfs, Jersey Shoe, Philadelphia Flyers, Halo, Star Wars, Steelers, Sutter Home, Tinkerbell, Twilight.. These are all over my website. Am I in legal trouble? How does this work?

16 replies
mayo2222 Posted 18 Mar 2011 , 6:31pm
post #2 of 17

Yes, it is illegal to make cakes that have copywrited or trademarked items such as all of the ones you mentioned, unless you have received permission from the holder of that copyright or trademark.

My advise is to remove the pictures from your website, especially if you have not received permission. More likely than not you will not be in any legal trouble, but that is always a posibility.

chefjess819 Posted 18 Mar 2011 , 6:39pm
post #3 of 17

could you not call the company that holds the copyright and ask them permission? kind of a "i'm a baker and have been asked to make an eeyore cake and a tinkerbell cake (example) wanting to know if it would be alright and if i would be allowed to showcase them on my bakery's website". in all honesty, you WERE asked to make these cakes...they just don't have to know WHEN you were asked...JMO...

vtcake Posted 18 Mar 2011 , 6:54pm
post #4 of 17

It's not illegal to make them, just to sell them. If you put them on your site, you have to also say you aren't allow to sell them.

So unless you just want to show off your work, there's no other reason to have them on your site.

artscallion Posted 18 Mar 2011 , 7:04pm
post #5 of 17

You need two different to make the cake with their image on it and another separate permission to use a pic on your website. One does not include the other.

Sometimes they are more likely to give permission for the cake to your customer. In general, they are less likely to give it to a baker. I think it's even less likely that they will give you permission to use pics on your website, since you would then essentially be advertising that you make cakes with their images. But it never hurts to ask.

It would be very unusual for Disney to give you any permission to do anything. They are extraordinarily strict with control of their images. Disney contracted a party planner to design the opening night party in Madison Square Garden for the re-release of The Little Mermaid movie. The party planner contracted with me to do an artists rendering of their design plan, which included life-size sculptures of the characters as well as a giant Ursula that hovered over the entrance. These renderings were going to be used only to show Disney what the plan was so they could approve it.

Disney supplied me with an inch thick book for each of the characters that would be included in my renderings. They gave strict instructions that I must follow the specific guidelines for each character or the renderings would be destroyed and not considered. Each character came with a palate of very specific colors that could be used, specifics as to how thick and black lines in the drawing should be, pages and pages of specific facial expressions and poses that were allowed.

All this for some paintings that would never really be seen by anyone except me, the planners and Disney.

artscallion Posted 18 Mar 2011 , 7:08pm
post #6 of 17
Originally Posted by vtcake

It's not illegal to make them, just to sell them. If you put them on your site, you have to also say you aren't allow to sell them.

So unless you just want to show off your work, there's no other reason to have them on your site.

vt cake, it is illegal to make them. It doesn't matter if you sell them. The legality comes in reproducing an image that belongs to them without their permission. Another part of the logic behind this is that, even if you give the cake away, this is still considered the loss of a potential sale for them since that person doesn't need to buy it from Disney if they can get it from you for free.

pandabunny Posted 18 Mar 2011 , 7:12pm
post #7 of 17

So then why would they sell character pans if it is illegal??

artscallion Posted 18 Mar 2011 , 7:18pm
post #8 of 17

The pan makers pay Disney for the right to use the image in a pan that they can then sell to you "for home use only" which is labeled in the pan. You are allowed to make a cake for your kids...that's it. It's agreed to and paid for with Disney.

mayo2222 Posted 18 Mar 2011 , 7:19pm
post #9 of 17
Originally Posted by pandabunny

So then why would they sell character pans if it is illegal??

The pans are sold for people's personal use. There is a disclaimer on the pan that states this in not those exact words.

cs_confections Posted 18 Mar 2011 , 7:22pm
post #10 of 17
Originally Posted by pandabunny

So then why would they sell character pans if it is illegal??

If you look at the bottom of the character pans, they say that they are for home use only. Meaning not for sale. It's okay to use them to bake for your own family, but not to sell to others.

WykdGud Posted 18 Mar 2011 , 7:45pm
post #11 of 17

I think the spirit of the law is that you cannot replicate for sale something that would cut into somebody else's business. However, making a Gucci purse cake isn't going to cut into Gucci's purse business, because they don't sell cake.

I have stopped being concerned with copyright as far as cake goes because I've looking into it, and I am pretty certain there isn't much grounds for a suit. If it's illegal to make a cake that looks like a Gucci purse, then wouldn't it also be illegal for a painter to paint a portrait of a woman holding a Gucci purse? Or for a photographer to sell professional photos of someone wearing designer duds? If the images (or cakes) are done for the purpose of personal use (or to eat) and not mass marketing, then it's highly unlikely there is any harm done to the company - especially if it is something the company doesn't do (such as make cakes!)

I think the only issue may come by posting the pics on a website. Because then it almost could potentially be seen as endorsement (like you are using their images to market your cakes). Small chance, but still there.

So to me, I think the risk of getting busted for MAKING a copyrighted cake is almost non-existent, however the risk in posting those photos to your website is only slightly greater. I am comfortable taking that risk, but you have to decide what your comfort level regarding a potential lawsuit is.

chefjess819 Posted 19 Mar 2011 , 1:39am
post #12 of 17

not meant to sound off or anything, just my thoughts in typing...if the copyright laws are so strict that you can't even make a cake in your home without buying something specifically from disney, then wouldnt there be someone from all the companys trolling sites like this one for people using their images? to me, if i had a hunch that my image was being used by someone i would start with bakery sites and then to image sites like flickr and photobucket...JMO...

hrnewbie Posted 19 Mar 2011 , 2:46am
post #13 of 17

I work for a really big consumer product company which shall not be named (not Disney though) and we have an entire floor full of lawyers who specialize in intellectual property. It's a huge issue that we focus on a lot. Part of our business model is partnering with major companies (Betty Crocker, Wilton, American Greetings, etc.) who then put our images on cupcake wrappers, home-use cake pans, sugar decorations, napkins, plates, etc. so that consumers can enjoy our IP in their homes and, of course, we get paid a cut of every cupcake liner, box of icing, or cake pan sold. It's how companies make money.

Is it likely that someone's going to hunt you down because you made a cake with a character on it? No. There are MUCH bigger fish out there. But you are violating patent and trademark law. Sorry.

Artscallion, you're EXACTLY right about the rules in place for IP though. Our bread and butter are those characters. If we give someone permission to use them we'll be very prescriptive about colors, facial expressions, what they can be doing, holding and saying. It's what we call "brand essence."

God I need a new job. icon_confused.gif

KalliCakes Posted 19 Mar 2011 , 3:04am
post #14 of 17

Hi! Whenever I get a request for these types of cakes, I just email the companies who own the rights and request permission. I'm allowed about 50% of the time. If I'm not, I give the customer other options (i.e. making a background for their characters, etc.), or they go somewhere else. I just don't like taking the risk. I did a character cake for a donation for which I did not get permission, but I got a legal opinion in writing and felt comfortable with the risks. I think it's up to each person's risk tolerance and ethics.

mahal50881 Posted 19 Mar 2011 , 3:21am
post #15 of 17

I put Lalaloopsy cupcake toppers on Etsy and was told by their lawyers to remove it.

steffla Posted 19 Mar 2011 , 4:30am
post #16 of 17

Mahal, just curious..what is "etsy?"

mahal50881 Posted 19 Mar 2011 , 4:33am
post #17 of 17 is kinda like ebay but for homemade items.

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