Trademarked Or Copyrighted Images

Lounge By AlamoSweets Updated 12 Jul 2011 , 2:10pm by tazmycat

AlamoSweets Posted 29 Jun 2011 , 3:30pm
post #1 of 40

BIG FYI! I recently was contacted by a law office in NY (I am in Texas). Years ago I made a Juicy Couture cake for a friend's daughter. It was a gift. I am not sure where they saw the photo. Maybe here or on my website. After being contacted by the attorneys representing Juicy Couture and after explaining no money was made on this cake I STILL have to pay all of the expenses incurred by the firm researching it! It will cost me close to $500!!!!!!! Please be careful posting any images of cakes with these type of images or figures on them. Even if it is a gift and you don't make any money on them it will still possibly cost you at least the attorney's expenses and possibly a LOT more depending on ho easy they want to be on you!

39 replies
jason_kraft Posted 29 Jun 2011 , 6:45pm
post #2 of 40

You might want to check the gallery on your web site, you have several cakes posted with copyrighted characters.

Have you talked with your business liability insurance company? They might be able to make this go away with a form letter since it was a gift.

warchild Posted 29 Jun 2011 , 8:29pm
post #3 of 40

Amazing, but not surprising that a company that steals other peoples copyright, would do this.

I rarely, if ever, agree with Jason Kraft, but since your cake was a gift with no money exchanged, I'd take his advice and see if this can be waved off as nothing but nonesense nitpicking on Juicy Couture's part.

jason_kraft Posted 29 Jun 2011 , 9:01pm
post #4 of 40

To be fair it is still a copyright violation even if the cake is not sold, and considering JC's primary asset is its brand it's not surprising they vigorously defend it against dilution. Not sure what you mean about JC stealing other people's copyright or how that applies to this situation.

Considering JC is only asking for $500, they are likely to fold (or at least settle for a lower amount) if confronted instead of paying for a legal battle.

auzzi Posted 30 Jun 2011 , 1:19am
post #5 of 40

Copyright law is civil law. If you violate copyright you will get sued, not be charged with a crime. It's a case of which side and which set of evidence the judge or jury accepts or believes more: the owner and their legal team, or you.

If you violate copyright, including derived works, by giving your creation away, you degrade the commercial value of the owners copyright: thus you are still considered liable.

scp1127 Posted 30 Jun 2011 , 7:38am
post #6 of 40

Copyright infringement is a civil violation until it is repeated 10 times. Then it becomes a federal crime. Whether or not money is exchanged only helps determine the total dollar amount of the damages awarded, not guilt.

My site gives this information when they click on licensed character cakes. This way the customer is informed if they decide to go to another bakery to get it anyway. We offer generic background cakes and the customer can add the figures.

Sugarflowers Posted 1 Jul 2011 , 7:32am
post #7 of 40

I am not disagreeing with what others are saying about infringement laws and lawsuits. However, copyright has to do with the written word, a body of text, lyrics, etc. Logos, product names, and pictures are Registered Trademarks. It is still illegal to use trademarks in any way without written permission from the owner. It makes no difference if money is exchanged.

The price of violating copyright or trademark infringement law is quite high and should be avoided. Do so ONLY with the proper written permission of the owner, whether it's a company or an individual.

It's just not worth it.

Michele

jason_kraft Posted 1 Jul 2011 , 7:40am
post #8 of 40
Quote:
Originally Posted by Sugarflowers

However, copyright has to do with the written word, a body of text, lyrics, etc. Logos, product names, and pictures are Registered Trademarks.



Copyright protects any original artistic work, whether it is textual or graphical in nature. The name of a brand itself is covered under trademark law, but a graphic logo created for the brand (or a photo of a branded product) would be protected by copyright.

http://www.copyright.gov/help/faq/faq-protect.html

scp1127 Posted 1 Jul 2011 , 5:45pm
post #9 of 40

For some reason on this site, it keeps being called copyright. The message seems to be better understood if you call it copyright. I posted the explanation several times, so for this site, I sometimes just go with the flow. The message is more important than the specifics. The word, "trademark", is never used here.

OhMyGanache Posted 5 Jul 2011 , 10:38pm
post #10 of 40

So the law firm told you that they would "let you off" if you just pay them $500?! And you're going to do it?

I would say "sue me" and watch how fast it disappears.

jason_kraft Posted 5 Jul 2011 , 10:49pm
post #11 of 40
Quote:
Originally Posted by OhMyGanache

So the law firm told you that they would "let you off" if you just pay them $500?! And you're going to do it?

I would say "sue me" and watch how fast it disappears.



Antagonizing a company with deep pockets like Liz Claiborne is probably not the best idea. If they do decide to sue to make an example out of the OP the cost of a legal defense alone could be thousands or tens of thousands.

Texas_Rose Posted 5 Jul 2011 , 10:56pm
post #12 of 40

Have you looked up the law firm to see if they're legit? Or contacted Juicy Couture to see if they're actually represented by that law firm? I'd be wondering if the whole thing was possibly some new scam.

OhMyGanache Posted 5 Jul 2011 , 11:04pm
post #13 of 40
Quote:
Originally Posted by jason_kraft

Quote:
Originally Posted by OhMyGanache

So the law firm told you that they would "let you off" if you just pay them $500?! And you're going to do it?

I would say "sue me" and watch how fast it disappears.


Antagonizing a company with deep pockets like Liz Claiborne is probably not the best idea. If they do decide to sue to make an example out of the OP the cost of a legal defense alone could be thousands or tens of thousands.




You take things much too literally. I obviously wouldn't simply use the term "sue me" - however, I would respond that I disagree with their assertion that I violated any copyright and would be willing to allow a court to decide the matter.

If you are willing to be duped, so be it - but there are businesses who pull this crap all the time. In fact, there was someone who was sending out letters to businesses telling them they were in violation of hadicap accessibility laws (aisles weren't wide enough, etc.) even when it wasn't true and threatened to sue the business unless they paid a "fine". Most businesses paid... one called a news station instead.

jason_kraft Posted 5 Jul 2011 , 11:06pm
post #14 of 40
Quote:
Originally Posted by Texas_Rose

Have you looked up the law firm to see if they're legit? Or contacted Juicy Couture to see if they're actually represented by that law firm? I'd be wondering if the whole thing was possibly some new scam.



That's a good point. OP what was the name of the law firm?

BlakesCakes Posted 6 Jul 2011 , 12:38am
post #15 of 40

This type of demand is a slippery slope.

I'd definitely try to find out if they're legit, but in the end, I wouldn't pay unless they took me to court.

$500 is a small claims court case and THEY made the settlement offer first. I seriously doubt that they'd pursue it because it would cost them more than they could get out of you.

Years ago, I got a letter from a lawyer in CT saying that I owed personal property taxes (that I knew I'd paid). New Haven had contracted with them to try to collect old debts (this one was 7 years old). The firm got a nice percentage if they could collect. I had an attorney friend from CT write them a letter basically saying, "Prove it. Sue me. I'm not returning to CT and have no assets there for you to attach." They disappeared without any follow-up.

My point is, the law firm may have been told to scare as many people as they could and if they could collect $ above what JC paid them in retainer, then go for it.

Let us know how it pans out.
Rae

scp1127 Posted 6 Jul 2011 , 1:24am
post #16 of 40

Isn't the point being missed? It is illegal to reproduce trademarked or copyrighted material.

Out of curiosity, I googled, "mickey mouse cake pictures". The pictures that came up had all of the information needed to find the violator and prosecute. There re about 1000 pictures right there.

This is a prelude to things to come. And your pictures are cached. Without the web, it was difficult to find violators. But now people are just laying it right out there, thanks to the growth of social media. This is an easy target. There are lawyers in each state that file for out-of-state companies. They are big processing firms, and they work the same way that debts are processed.

jason_kraft Posted 6 Jul 2011 , 1:43am
post #17 of 40
Quote:
Originally Posted by scp1127

Isn't the point being missed? It is illegal to reproduce trademarked or copyrighted material.



It is illegal, but pragmatically you have to look at how many resources the complainant is willing to put in to recovering damages. If the law firm is legit and OP responds with the equivalent of "sue me", in this case it seems like it would be trivial to produce evidence of the infringement, notwithstanding OP admitting to infringement on CakeCentral.

The gamble is that the law firm won't invest the time necessary to produce evidence, which could pay off. However the risk is if they do produce evidence they may decide to move ahead with a lawsuit and withdraw the settlement offer, at which point OP could be liable for statutory damages ranging from $750-$30,000 per infringement plus legal fees (unless OP has liability insurance). IMO the risk of the latter scenario is small, but it is still a possibility.

BlakesCakes Posted 6 Jul 2011 , 1:47am
post #18 of 40

I agree that if you've been paid for a cake, you've made money off of the art, research & development, etc. done by the item's manufacturer. They have every right to expect a "royalty" for your having made that money. They can then argue that they have the right to some quality control over the product.

I do NOT agree that a cake made for no compensation brings with it the same obligation to the originator of a product.

If I make a Cars2 cake for my grandson and I post it online, I don't believe that Disney has the right to get their knickers in a twist over it. I am, in a sense, giving them free advertising.

Just because the internet makes it easy for them to find particular cakes, it doesn't mean that they're necessarily correct in making $ demands for every cake that they find. If it did, then every mom who's ever made a cake with a pair of black, round ears on it and posted it on FB would have to tremble in their boots icon_confused.gif

Rae

hrnewbie Posted 6 Jul 2011 , 1:55am
post #19 of 40

The song "Happy Birthday to You" is also copyrighted. So even if you make the cake please be sure to tell your friends, customers, family, etc. NOT to sing that song lest God forbid some lawyer show up and sue them too.

I wish I could say none of this is true. But I work for a BIG company that makes lots of licensed brands (ala Disney, Nickeoldeon, etc.) and we have dozens of people who license our brands out to Wilton, etc. so you can buy it and make cakes. And we have even more people in our legal department who spend all day policing the web for stuff like this. While their focus is usually on bigger issues (smuggling, piracy, etc.) at some point this kind of stuff will fall on their radar and you can bet your bottom dollar they'll pursue that court case.

Because that's what intellectual property is all about. They own the IP. You're using it without their permission so they're not making money. So this time they'll get their money from you through the courts. Next time, you'll spend your $ on licensed products and they'll get it that way. But it's all about the almighty dollar at the end of the day.

hrnewbie Posted 6 Jul 2011 , 2:01am
post #20 of 40
Quote:
Originally Posted by BlakesCakes

If I make a Cars2 cake for my grandson and I post it online, I don't believe that Disney has the right to get their knickers in a twist over it. I am, in a sense, giving them free advertising.




Unfortunately that's not true. Disney's argument would be that by doing a Cars cake on your own you violated their IP. Had you done it the "right way" you'd have spent money on the products they license for the baking world (pans, sets of colors specifically for their characters, etc.) and they'd have been compensated through those purchases. By skipping the licensed products and doing it on your own you stole money from them.

Sorry. But that's the argument. I hate it but it's true.

scp1127 Posted 6 Jul 2011 , 2:07am
post #21 of 40

Blake, you are using words like, "believe", and, "opinion". It really doesn't matter what you believe. The law is there in front of us, plain and simple, for all to read. Maybe you should look it up yourself if you don't "believe" me.

For everyone doing these cakes, I will repeat again... after the tenth reproduction, it becomes a federal criminal offense. I don't think the feds are targeting cakes, but the law is there and can be used by the companies. The point is, again, that the world has changed. It is too easy to find violators. And Jason, I would think that they already had their evidence. There are too many sites with the photos up and the wording very clear about who made the cake.

warchild Posted 6 Jul 2011 , 3:19am
post #22 of 40
Quote:
Originally Posted by Texas_Rose

Have you looked up the law firm to see if they're legit? Or contacted Juicy Couture to see if they're actually represented by that law firm? I'd be wondering if the whole thing was possibly some new scam.




After checking to see how many Juicy Couture cakes are in the CC gallery, and on google images, (a lot) I'm of the same thought as you. I'd be wondering and checking to see if it's a scam.
Why would they only contact the OP about her cake, a cake that was made years ago, when there's so many more JC cakes in the CC gallery and google, that are more recent? It makes no sense.

Sugarflowers Posted 6 Jul 2011 , 3:48am
post #23 of 40

There's no doubt about it, companies will go after ANYONE they feel is cutting into their bottom line, no matter how small the cut.

[b]IF[/b] anyone insists on making protected design cakes, then wouldn't it be easier and less worrisome to just not put the photos on any site. Leave those photos for your private collection.

When you let a customer know the legal and financial ramifications that come with these cakes they will either change their order or order from a grocery store. Most customers do not want to get their favorite cake decorator in trouble. If they insist, then that customer is not worth it and might be a difficult customer in the long run.

JMHO

Michele

BlakesCakes Posted 6 Jul 2011 , 3:55am
post #24 of 40
Quote:
Originally Posted by scp1127

The law is there in front of us, plain and simple, for all to read.




I never said that I didn't believe you. I simply don't agree with your interpretations.

I most certainly don't see the law as "plain and simple"--far from it.

I know that it's a complex, multi-faceted "organism" that can be interpreted and misinterpreted, depending on myriad circumstances.

In some cases, a cake using come copyrighted/trademarked items/images could be construed as a parody--and then, an entirely new set of legal standards comes into play.

For every person who makes a "questionable" cake, there is a bully lawyer who knows that if they scare that person--perhaps even by lying to that person--they will effect some desired outcome: either the person will cease and desist OR they will fork over (extortion) money to make the (alleged) legal issue go away.

I know that if I'm paid for a cake using trademarked/copyrighted material, I am fully in the wrong. I do NOT know that the same is true if no money changes hands--and sadly, the written law doesn't appear to address this very specific issue directly.

That said, I would NEVER duplicate the same cake 10 times icon_eek.gif

Rae

scp1127 Posted 6 Jul 2011 , 5:25am
post #25 of 40

The written law absolutely does address the reproduction without compensation and that the purchaser is also liable. I don't get the "interpretation" issue. Some examples may be hazy, but I don't see any haze in a Mickey Mouse or Juicy Couture cake.

My site is not public on forums because I have not applied for my trademark yet. But having done the research and going through the process of saving the money vs. my husband just writing a check, I take offense at how little the copyrights and trademarks are regarded by many people.

The "10 times" issue is meant for those who are mass-producing cd's, dvd's, handbags, etc. But it is very interesting that the federal offense is set at such a low number. It is obviously set so that the owners have the option to persue a federal charge vs. a state charge for a small reproducer. And many cake decorators do multiple Spongebob, Dora, Thomas, etc. cakes, putting them well over the 10x mark. Those who make them must not only keep the photos off their site, but the purchaser and every guest at the party would also need to abstain from publishing. That is difficult to control.

jason_kraft Posted 6 Jul 2011 , 11:46am
post #26 of 40
Quote:
Originally Posted by BlakesCakes

In some cases, a cake using come copyrighted/trademarked items/images could be construed as a parody--and then, an entirely new set of legal standards comes into play.



For a work to qualify as parody and fall under fair use, it must be transformative and alter the copyrighted work to present an alternative message. I have never seen a cake that qualifies as a parody.

Quote:
Quote:

I do NOT know that the same is true if no money changes hands--and sadly, the written law doesn't appear to address this very specific issue directly.



The civil portion of the law as written does not distinguish between infringing works made for profit and those given away for free. For example, illegally copied music is often given away for free, and this has been successfully prosecuted as copyright infringement. If the infringement is for profit, it automatically qualifies for criminal proceedings.

The option to pursue statutory damages (as opposed to actual damages and profits from the infringer) exists to specifically allow meaningful awards from cases where profits are low or nonexistent.

However it does look like there is a statute of limitations (section 507) of 5 years for criminal and 3 years for civil.

http://www.copyright.gov/title17/92chap5.html#504

TexasSugar Posted 6 Jul 2011 , 4:20pm
post #27 of 40

My thoughts, and yes I said my thoughts, take them how you want... are that if you are just posting a picture on the internet, such as here on CC or on your facebook, unless you are posting, Hey I got paid to do this cake, you are probably going to be fine. Yes these companies have a whole slew of people they can have looking for people that do use their images, but I doubt they are going to contact every single person that has ever made a such and such cake that has posted the picture on their facebook page.

I remember going to the OP's website after she first posted this (unless there was another post like this around the same time) and she had several copyrighted/trademarked images on her website for her cake business. I also remember clicking on one of them, and it having the how to order this cake link below the picture. So to me, that would look like those cakes were paid orders and that she would do it again.

I do think (yes again I said I think) a business website is much different than a personal website.

As far as doing any images that are copyrighted/trademarked, can someone explain how it is okay for me to use the Wilton pan to make a Car's cake for my kid, they are stamped for home use after all, but then you say you can't recreate a car's cake for your own kid because it's an infringement?

jason_kraft Posted 6 Jul 2011 , 4:31pm
post #28 of 40
Quote:
Originally Posted by TexasSugar

As far as doing any images that are copyrighted/trademarked, can someone explain how it is okay for me to use the Wilton pan to make a Car's cake for my kid, they are stamped for home use after all, but then you say you can't recreate a car's cake for your own kid because it's an infringement?



The Wilton pans are licensed, so the appropriate copyright owners have granted permission to use their characters on the pan and the resulting cakes and were compensated by Wilton.

When you create your own copy of a licensed character without requesting permission, you infringe on the legal rights of the owner of that character to control how their character is portrayed. In the case of the Wilton pan the copyright owner knows exactly how their character will be portrayed, since they've approved the specific design used for the pan.

This is also why it's OK to buy licensed cake toppers and include them on a cake, even if you are selling the cake and marking up the toppers.

TexasSugar Posted 6 Jul 2011 , 5:03pm
post #29 of 40
Quote:
Originally Posted by jason_kraft


When you create your own copy of a licensed character without requesting permission, you infringe on the legal rights of the owner of that character to control how their character is portrayed. In the case of the Wilton pan the copyright owner knows exactly how their character will be portrayed, since they've approved the specific design used for the pan.




Wilton also shows in their yearbook every year different ways that pan can be decorated. And there is not a note on the pan that the cake has to be done the exact way as shown in the picture.

Honestly they have no idea how the pan is going to be used in a person's home. There is actually one of their pans, that when turned upside down, actually makes a great 'naughty' cake pan.

jason_kraft Posted 6 Jul 2011 , 5:15pm
post #30 of 40
Quote:
Originally Posted by TexasSugar

Wilton also shows in their yearbook every year different ways that pan can be decorated. And there is not a note on the pan that the cake has to be done the exact way as shown in the picture.



You can decorate the cake any number of ways as long as you do not add additional copyrighted characters as decorations (unless you receive permission of course) or modify the character on the pan.

Quote:
Quote:

There is actually one of their pans, that when turned upside down, actually makes a great 'naughty' cake pan.



If the character is no longer recognizable then that really wouldn't be a concern. But if the character is still recognizable in a "naughty" cake (i.e. rule 34) I don't think the copyright owner would be too happy about that.

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