Krista512 Posted 1 Mar 2012 , 6:13pm
post #1 of

am i correct in what I say in this statement on my website
please let me know if I am wrong about anything. i dont want to get in any legal trouble. also what is the law on using licensed cutters? I have a ice chest cake that has a orange texas long horn on it that i cut out using a texas longhorn cutter that i purchased from the cake shop. is that aginst the law to use???


~~~~~~~~~~

It is aginst the law for ANY cake decorator to make profit on a cake made to replicate or somewhat look like any copyrighted characters. These type of copyrighted characters include Mickey Mouse, Dora, Hello Kitty, Sesame Street, Thomas the Tank Engine, Bob the Builder, Sponge Bob and and other such character.

The fines for getting caught making these character themed cakes can be as high as $150,000 and are fined to the cake decorator and the purchaser both.

In order to keep my business and my clients out of trouble, I will not replicate characters without permission from the copyright owner.

If you would like a character themed cake to match your party them there are a few options.

1. You may contact the copyright owner and ask for written permission for a cake decorator to make a cake using their copyrighted logo and/or characters.

2. You may purchase a party pack of the characters or toy that I can include on your cake.

3. You can have a cake that is made using the colors but not in a way that replicates a specific character. For example you are having a Hello Kitty themed party with plates, napkins, cups, and banners all Hello Kitty themed. I can make you a cake using pink, white and black . For example a cake that covered in white fondant trimmed in black fondant with a pink bow on top. But I can not make a sculpted character of Hello Kitty or draw her face on the cake.

There are many cake decorators that do not follow the law regarding Copyrighted images and would be more than happy to make you a cake that is carved to replicate a character BUT they are taking a huge financial risk for them self and you doing so. All it takes is one picture to be placed on their website, or a guest at the party to snap a picture of the cake and share it with the wrong person who contacts the copyright owner and a law suit gets started. There are departments within these companies that have the sole job in searching out copyright violators.

Im sorry, I would love your business but I must protect my business and my customers.



~~~~~~~~

57 replies
costumeczar Posted 2 Mar 2012 , 1:07am
post #2 of

I'd add "without the permission of the copyright holder" after the first part about it being illegal.

Other than that I think it's pretty clear!

jason_kraft Posted 2 Mar 2012 , 2:19am
post #3 of
Quote:
Originally Posted by costumeczar

I'd add "without the permission of the copyright holder" after the first part about it being illegal.



Agreed...it is also a copyright violation (assuming no permission) regardless of whether or not the cake was sold for a profit or even sold at all.

scp1127 Posted 2 Mar 2012 , 7:23am
post #4 of

I'm glad I read Jason's post. That is what I was going to add.

If this is going on your site, you may want to consolidate the wording. You want them to read it. Also, because you are, in essence, relaying a legal issue, I think a few changes in your sentences would make the information come across as more authoritative. I'm not knocking your conversational style, I happen to like that in a site. But more formal may be better in this one explanation.

It should be named, "copyright/trademark" where you have copyright. Also watch your use of capital letters in the copy.

..."and are charged to both the decorator and the purchaser."

... "a substantial risk for themselves and you, the client."

..."and share it with the wrong person", is not how it happens. If it is uploaded to the web, it can be googled by the owner.

I would not end in an apology. Rather, "So let's get together and plan a cake that will not only be the centerpiece to your theme, but will also be free of any future problems with copyright/trademark violations."

Glad to have another person on board that respects the law. You can check out my wording on my site under Licensed Character Cakes. Hope this helps, Susan

FullHouse Posted 2 Mar 2012 , 2:48pm
post #5 of

I was just planning on adding copyright violation info to my site as well. I have lost orders because of it, but I would certainly rather lose an order or two than my entire business. So not worth the fine.

Jason, are you certain that this pertains to cakes not sold as well, i.e. my kids birthday cake? My understanding is that is not a violation because it is personal use.

jason_kraft Posted 2 Mar 2012 , 5:04pm
post #6 of
Quote:
Originally Posted by FullHouse

Jason, are you certain that this pertains to cakes not sold as well, i.e. my kids birthday cake? My understanding is that is not a violation because it is personal use.



Copyright law pertains to all uses, personal or business, with a few exceptions for fair use such as parody, use in classrooms, libraries, etc.
http://www.copyright.gov/fls/fl102.html

Unless the copyright owner expressly allows personal use (for example, on some Wilton character pans) then duplicating a copyrighted character without permission for personal use is still infringement. Of course if no one takes a picture of the cake and posts it online it's very unlikely you will be caught.

Copyright law has a specific provision for infringement that was not for profit -- the copyright owner can sue for statutory damages instead of actual damages, which can range from $200 to $150,000 per violation. This is how they prosecute people who illegally copy music, since there is no direct monetary gain or profit involved.
http://www.copyright.gov/title17/92chap5.html#504

FullHouse Posted 4 Mar 2012 , 5:43pm
post #7 of

Thank you.

scubasteve Posted 13 Mar 2012 , 5:10pm
post #8 of

I see a lot of talk about copyright laws and violations when looking around CC, but in many of the cases being discussed, it is actually a trademark that is being used...that's a different ball game. I noticed someone else said something about that, but how would that change the ability to use something for private use?

Debbye27 Posted 13 Mar 2012 , 5:19pm
post #9 of

So, the only way to include these theme characters is to have the client purchase a decopac? Does it have to be a decopac, or would any toy work, such as a batman figurine?

jason_kraft Posted 13 Mar 2012 , 5:22pm
Quote:
Originally Posted by scubasteve

I see a lot of talk about copyright laws and violations when looking around CC, but in many of the cases being discussed, it is actually a trademark that is being used...that's a different ball game. I noticed someone else said something about that, but how would that change the ability to use something for private use?



From the perspective of the cake decorator it doesn't really matter if the item in question is protected by copyright law or trademark law, you would still need to obtain permission from the IP owner.

Copyright covers original creative works, while trademarks cover business names and slogans. If a logo is sufficiently creative it may be protected by both copyright and a trademark.

Here is a pretty good article on the difference:
http://www.plagiarismtoday.com/2010/08/12/trademark-copyright-and-logos/

jason_kraft Posted 13 Mar 2012 , 5:27pm
Quote:
Originally Posted by Debbye27

So, the only way to include these theme characters is to have the client purchase a decopac? Does it have to be a decopac, or would any toy work, such as a batman figurine?



Any licensed figurine would be fine, no permission necessary. Your client doesn't necessarily have to purchase the decopac/figurine, you can purchase it yourself and mark it up if you prefer.

One way to think about this would be to subtract the cake from the transaction. It's perfectly legal to buy a licensed Batman figurine and sell it to someone else at a markup. It's not legal to buy a knockoff and sell it as a genuine product or to make your own Batman figurine out of fondant/clay/whatever and sell that without the permission of the IP owner.

Eaglewoman Posted 24 Apr 2012 , 1:35am

So are all the themed cakes...sponge bob, toy story, etc, shown in the gallery of CC illegal?

jason_kraft Posted 24 Apr 2012 , 1:41am
Quote:
Originally Posted by Eaglewoman

So are all the themed cakes...sponge bob, toy story, etc, shown in the gallery of CC illegal?



If the cake decorator did not have permission from the copyright owner, any cake featuring a copyrighted character made from fondant, gumpaste, or BC violates copyright law.

Eaglewoman Posted 24 Apr 2012 , 3:40am

WOW! Thanks for that info!

Eaglewoman Posted 24 Apr 2012 , 3:58am

what about these contests... star trek, superheroes, etc.(seen in the gallery) Does each contestant have to get permission before entering the contest? The reason I'm asking all these questions is, unless you are looking for legal info on this site, home and part time bakers do not know this info. I was asked to do a themed cake and my son told me not to do it because of copyright laws. And that's when I started looking for more info on the forums. I think cakes that have permission should be marked as such on the pictures. Just type in toy story or sponge bob on the gallery search and there are hundreds of pics, but who knows if they are legal or not. This is what I was doing until my son raised that point. And I have been thinking of entering a few contests locally, I just don't want to get myself into trouble.
Thank you for all your help!

debidehm Posted 24 Apr 2012 , 4:04am
Quote:
Originally Posted by jason_kraft

Quote:
Originally Posted by Eaglewoman

So are all the themed cakes...sponge bob, toy story, etc, shown in the gallery of CC illegal?


If the cake decorator did not have permission from the copyright owner, any cake featuring a copyrighted character made from fondant, gumpaste, or BC violates copyright law.





If they don't have permission, I wonder why more people aren't weary of posting these cakes in the gallery? C.C. seems to be a pretty popular site, and from here pictures can be posted to Pintrest, so these pictures are getting out there. Up until I was asked to do the Tinkerbell cake this past weekend, I have never done a character cake before. When I was asked to do it, I said sure, but I would not replicate Tinkerbell in fondant, that I would buy a toy doll of her and put on top...thanks to reading the posts about these laws. Honestly, before this site I never gave it a thought one way or another, so I'm thankful for the knowledge I get here.

jason_kraft Posted 24 Apr 2012 , 4:06am
Quote:
Originally Posted by Eaglewoman

what about these contests... star trek, superheroes, etc.(seen in the gallery) Does each contestant have to get permission before entering the contest?



If the copyright owner runs the contest themselves you are probably OK, since the contest itself is implicitly granting permission. If a third party (like Cake Central) runs the contest and does not negotiate a license on behalf of contest entrants then each entrant would need to get permission if they duplicate a copyrighted character. If they use a more generic theme without duplicating copyrighted characters or logos permission would not be necessary. It is also OK to use genuine licensed figurines without permission, since the doctrine of first sale protects you, and the copyright owner is getting paid through the sale of the figurine.

jason_kraft Posted 24 Apr 2012 , 4:15am
Quote:
Originally Posted by debidehm

If they don't have permission, I wonder why more people aren't weary of posting these cakes in the gallery? C.C. seems to be a pretty popular site, and from here pictures can be posted to Pintrest, so these pictures are getting out there.



Most people are probably not aware that copyright laws apply to one-off cakes and small businesses, or they think they are OK if they don't sell the cake (they aren't).

Interesting that you mention Pinterest. It is a great site, but unfortunately it looks like it is unsustainable as a business in its current form. In order to actually make money they would need to negotiate licenses with the copyright owners of all the content posted by users, and I just don't see how that's feasible without putting severe limits on where you can pin pictures from.

More info:
http://techcrunch.com/2012/03/22/for-pinterest-revenue-will-turn-copyright-questions-into-problems/

debidehm Posted 24 Apr 2012 , 4:16am
Quote:
Originally Posted by jason_kraft

Quote:
Originally Posted by Eaglewoman

what about these contests... star trek, superheroes, etc.(seen in the gallery) Does each contestant have to get permission before entering the contest?


If the copyright owner runs the contest themselves you are probably OK, since the contest itself is implicitly granting permission. If a third party (like Cake Central) runs the contest and does not negotiate a license on behalf of contest entrants then each entrant would need to get permission if they duplicate a copyrighted character. If they use a more generic theme without duplicating copyrighted characters or logos permission would not be necessary. It is also OK to use genuine licensed figurines without permission, since the doctrine of first sale protects you, and the copyright owner is getting paid through the sale of the figurine.




So if they (C.C.) do a contest and each person is responsible to get permission themselves to replicate a character, does C.C. let the people entering these contests know they need permission, or let them know that permission has been given and it's ok to make these cakes and enter them in the contests? Something that would be nice to know before entering a contest like that.

debidehm Posted 24 Apr 2012 , 4:20am

Jason- I only mention Pintrest because the vast amount of people that are on there. You post a picture to your board, someone sees it, and posts to their wall (people you don't even know), and on and on it goes. Who know who all sees it?

jason_kraft Posted 24 Apr 2012 , 4:20am
Quote:
Originally Posted by debidehm

So if they (C.C.) do a contest and each person is responsible to get permission themselves to replicate a character, does C.C. let the people entering these contests know they need permission, or let them know that permission has been given and it's ok to make these cakes and enter them in the contests? Something that would be nice to know before entering a contest like that.



It would be nice, but this would probably scare off most entrants, and CC would not make as much money off the contest.

debidehm Posted 24 Apr 2012 , 4:27am
Quote:
Originally Posted by jason_kraft

Quote:
Originally Posted by debidehm

So if they (C.C.) do a contest and each person is responsible to get permission themselves to replicate a character, does C.C. let the people entering these contests know they need permission, or let them know that permission has been given and it's ok to make these cakes and enter them in the contests? Something that would be nice to know before entering a contest like that.


It would be nice, but this would probably scare off most entrants, and CC would not make as much money off the contest.




I'll probably get booted off this site for saying this, but wouldn't that be almost encouraging people to violate these laws by having these types of contests (where copy write characters are being used) and not telling people outright that they will need permission before making them?

jason_kraft Posted 24 Apr 2012 , 4:30am
Quote:
Originally Posted by debidehm

Jason- I only mention Pintrest because the vast amount of people that are on there. You post a picture to your board, someone sees it, and posts to their wall (people you don't even know), and on and on it goes. Who know who all sees it?



It's not just pinterest, any time you post a picture on the internet (on your blog, FB, Cake Central) it is eventually indexed and can be easily found by anyone doing a search on the subject of the image.

And re the contests, it may simply be ignorance of the law on the part of CC as opposed to malicious intent.

debidehm Posted 24 Apr 2012 , 4:37am
Quote:
Originally Posted by jason_kraft

Quote:
Originally Posted by debidehm

Jason- I only mention Pintrest because the vast amount of people that are on there. You post a picture to your board, someone sees it, and posts to their wall (people you don't even know), and on and on it goes. Who know who all sees it?


It's not just pinterest, any time you post a picture on the internet (on your blog, FB, Cake Central) it is eventually indexed and can be easily found by anyone doing a search on the subject of the image.

And re the contests, it may simply be ignorance of the law on the part of CC as opposed to malicious intent.




I would agree with you about "ignorance of the law", but with as many posts about this topic on C.C., I can't buy it. I've only been on this site a few short months, and I think that was one of the first things I learned here...and am thankful to have learned that. Thank you for your help Jason. I really don't want to set a bee in someone's bonnet about all this, but in order to learn, we must ask questions. Again...thank you.

margeann Posted 24 Apr 2012 , 6:23am

Our bakery was informed that we cannot sell a copyright cake. Customers can look through the sample book and we can make and decorate the cake, per photo book, but we cannot put the character toys on the cake.
We can only sell the toys along with the cake and the customer has to put the figures on themselves.
On the other hand... I was informed many years ago, I could make a character cake at home for my family and friends as long as I did not sell it. After reading the article, I am confused. This is something I want to check into.

costumeczar Posted 24 Apr 2012 , 10:45am

Pinterest recently changed their terms of service to say that if you pin something you need to have the license, and they assume no liability. You're supposed to get permission from the owner before pinning. Iif the person you're pinning from doesn't have a pin it button on their page you can't assume that you have permission and you're supposed to ask them first.

leah_s Posted 24 Apr 2012 , 11:13am

[quote="margeann"]Our bakery was informed that we cannot sell a copyright cake. Customers can look through the sample book and we can make and decorate the cake, per photo book, but we cannot put the character toys on the cake.
We can only sell the toys along with the cake and the customer has to put the figures on themselves.
On the other hand... I was informed many years ago, I could make a character cake at home for my family and friends as long as I did not sell it. After reading the article, I am confused. This is something I want to check into.[/quote]

That's true if you're buying the cake kits. You have to make the kits as pictured.

However, if you're going to the toy store and buying toys, you can design any cake you want.

At least that's always been my understanding.

ncsmorris Posted 24 Apr 2012 , 7:18pm

Hmm...bringing up Pinterest is interesting. I guess I always thought (ignorance abound, here!) that since it links back to the original location of the photo, it would be ok to re-pin something. I've always thought of it like a bookmark (but easier to use) - I like this [product, cake design, dress, photograph, recipe] and would be interested in buying, making, etc. it later so I'll pin it to easily locate the original website later...

Interesting discussion about Pinterest!

pmarks0 Posted 24 Apr 2012 , 7:51pm

[quote="Krista512]
These type of copyrighted characters include, but are not limited to, Mickey Mouse, Dora, Hello Kitty, Sesame Street, Thomas the Tank Engine, Bob the Builder, Sponge Bob and and other such character.
[/quote]

My only comment to add regarding your text would be to include the part in italics and bold. This will cover yourself when someone comes and asks if you'll do a Superman cake or something that isn't listed above.

cfao Posted 24 Apr 2012 , 8:06pm

I have this posted on my site under FAQ, short & to the point:Can I bring in a picture to be scanned on a party cake? Yes and No. If your picture is of a family member, friend, your car, pet, etc. that you have taken, then yes, we can recreate it on a cake for you. We can not legally reproduce a picture of a celebrity, cd cover or any other item or logo that has a trademark or copyright. We
can not copy a picture from a book, magazine or an internet site. We do keep many licensed characters in stock, so call to see if we have what you are looking for.

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