Venting About Copyright Law

Business By Krista512 Updated 9 Mar 2012 , 5:38pm by jason_kraft

Krista512 Posted 6 Mar 2012 , 12:48am
post #1 of 24

im new to starting my home based business since it is now legal with the texas cottage food law. I have lost 7 cake oppertunnities this week because of the copyright law. this is so discouraging. how can i possibly make money if i cant make cakes that people want. everyone wants character cakes. Turned down, alice and wonderland, sponge bob, brobee, sesame street, mickey mouse, dora and hello kitty. I have no orders and these other 8 decorators in my area probably just got new customers. im getting so discouraged. i offer to use party packs and make a scene or decorate in other ways using party packs but no one will say yes. they want a mickey or hello kitty head and such. how do i get over this hump.

23 replies
AmysCakesNCandies Posted 6 Mar 2012 , 2:29am
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Depending on the character you can sometimes suggest a design that works with a theme or colors that coordinate with the character. (i.e Strawberry shortcake- a pink and lime green designed cake with small fondant strawberies and blossoms, etc) I typically suggest this when people request licenced characters and about half the time customers will go with it as long as a present a clear design idea. I always explain that I do not have the licensing righs to the characters unless thet want a character set or doll cake. I will however do character for my own families cakes (not customers)

scp1127 Posted 6 Mar 2012 , 8:58am
post #3 of 24

You haven't lost seven opportunities because they were never opportunities. This is where the problem is. If you can't convert them to a legal cake, then hang up and say, "Next". Don't mentally spend the money because it wasn't a real order.

We have all had opportunities that would put money in our pockets. But some of us just say, "No". Example: Many of my friends sold a little pot in college for spending money. I chose to have a part-time job. We make these decisions based on our moral fiber.

When I was in full commision sales when I was just out of college, some of my colleagues agonized over unsigned contracts that they were just sure would go through. They planned on these sales to pay bills. I was different and much happier. I did not spend the money mentally until the signature was on the contract.

Many businesses succeed without illegal transactions. Look to what you do well and market yourself. Let someone else get the order with the surprise fine in two years. People are misjudging the power of the internet and the Feds. People are sitting ducks on the internet. And they are great at self-incrimination. Companies and lawyers are already down to prosecuting smaller and smaller operations and these cakes are going to be inconsequential in cost to prosecute.

There is a reason why the Feds put the magic number at 10 as the amount of duplications that raise this issue to a federal criminal charge with prison time. Pretty small number, meant to target the little guy.

So be happy with your decisions. They are good ones. I am obviously a stickler for conducting business by the book and my business has not suffered by that decision. In fact, this business model has been the factor that has increased my business. My three national contracts and offers were offered based on how I conducted my business.

I don't know of one nationally acclaimed bakery that does Spongebob and Dora cakes. And certainly no top pastry chef, without permission and special circumstances.

vlmtz Posted 7 Mar 2012 , 9:56pm
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I am a total newbie here but I don't understand why there are so many pictures on this site of cakes that have clearly broken copyright laws? Do that many people really just not care about the consequences that they may face for that? Its kind of scary to me. I agree that it would not be something that I would be willing to do for a customer (If I had any paying customers yet) but its got to be frustrating for those that try to follow the laws when there are so many other people willing to break them to get the business.

AmysCakesNCandies Posted 7 Mar 2012 , 11:13pm
post #5 of 24
Quote:
Originally Posted by vlmtz

I am a total newbie here but I don't understand why there are so many pictures on this site of cakes that have clearly broken copyright laws? Do that many people really just not care about the consequences that they may face for that? Its kind of scary to me. I agree that it would not be something that I would be willing to do for a customer (If I had any paying customers yet) but its got to be frustrating for those that try to follow the laws when there are so many other people willing to break them to get the business.



not everyone here is a professional, many of those pics could be personal cakes. That said, there are decorators out there that don't care

cakelady2266 Posted 7 Mar 2012 , 11:36pm
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I know this is going to sound stupid and I apologize in advance. But if the customer provides plastic figurines and you place them on the cake is that truly considered copyright infringement? Because I really don't know.

scp1127 Posted 8 Mar 2012 , 11:23am
post #7 of 24

cakelady, that is acceptable. The two things the license owners want is to get paid and to have control of the look of the character or item. This satisfies both.

AmysCakes, personal use is still a voilation.

Reimagining_Confections Posted 8 Mar 2012 , 12:01pm
post #8 of 24
Quote:
Originally Posted by vlmtz

I am a total newbie here but I don't understand why there are so many pictures on this site of cakes that have clearly broken copyright laws? Do that many people really just not care about the consequences that they may face for that? Its kind of scary to me. I agree that it would not be something that I would be willing to do for a customer (If I had any paying customers yet) but its got to be frustrating for those that try to follow the laws when there are so many other people willing to break them to get the business.




Characters(copyrighted) may be reproduced for personal use (no money changes hands therefore the company with the copyright has not lost any potential revenue and has not been "harmed" under the law.

I have several character images i have reproduced for my own kids or family. I just can't sell those cakes, they have to be free with no compensation(i.e.- not even ingredient reimbursement that they give you money for or even that they buy and give to you). Some companies will allow you to use an image with permission, it can be laborious to get permissions. Some will sell the rights to use with restrictions(final approval of design, setting, etc) for a fee(sometimes very large and out of reach for small business. Some won't even allow that- deco pacs companies require to place the images and utilize their design in the reproduction of the cake. if you stray from that- legally you are infringing(though I think this is less enforced- my opinion).

So correct me if I am wrong- even Disney figures that are not from Disney cake decorating sets, may not be legal to use. Anyone know for sure?

vlmtz Posted 8 Mar 2012 , 2:40pm
post #9 of 24
Quote:
Originally Posted by scp1127

AmysCakes, personal use is still a voilation.




That's what I was thinking. The violation is in the recreation of the character, right? not in the sale of said recreation.

AmysCakesNCandies Posted 8 Mar 2012 , 2:51pm
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Then why do they even sell mickey pans & cricut catridges if you can't even use them for your own personal use?

Theese products say right on them "for home use".

The law exists to protect the copyrite holder from "damages" (most typically financial). Once you have purchased a licenced product that is sold for the specific purpose of creating another item (ie cake pans, craft kits etc) it is not agaist copyrite law to create that item for personal use. "Damages" in this case would only come into play the person using the products turned around a re-sold the resulting item. Think about it, if it were illegal to buy the disney crucut cartridge and use them to make your child's birthday party invites, not only would almost every household in America be involved in some level og copyright infringement, but the companies holding the rights would start to loose money because no one would be buying theese products.

I never use copyright without permission in my business, but for personal cakes I have use licenced pans, cricut cartridges, toys etc.

I'm using a Mickey Mouse pan to make my nieces birthday cake next month, so turn me in now. icon_eek.gif

ChefAngie Posted 8 Mar 2012 , 2:57pm
post #11 of 24

Its not that you can't do these cakes-the companies want us to use the cake toppers that are iicensed for that purpose.
Happy Baking and Decorating,
Chef Angie

vlmtz Posted 8 Mar 2012 , 2:59pm
post #12 of 24
Quote:
Originally Posted by AmysCakesNCandies

Then why do they even sell mickey pans & catridges if you can't even use them for your own personal use?

Theese products say right on them "for home use".




My understanding is that using these products is legal for home use because the license holder has some control over the image (they created the mold or pattern). However, Carving or sculpting your own version of a character (even for home use) is illegal because the license holder has absolutely no control over how accurately the image is portrayed.

AmysCakesNCandies Posted 8 Mar 2012 , 3:04pm
post #13 of 24
Quote:
Originally Posted by ChefAngie

Its not that you can't do these cakes-the companies want us to use the cake toppers that are iicensed for that purpose.
Happy Baking and Decorating,
Chef Angie




I totally agree with you, my statement is in respose to above where some have indicated i am incorrent about using licenced images for personal use.
icon_smile.gif

scp1127 Posted 8 Mar 2012 , 3:04pm
post #14 of 24

We weren't discussing home use pans. In these cases, the purchaser has paid the royalty at the time of purchase. But this is for authorized tools only. It will be written on the product.

cakelady2266 Posted 8 Mar 2012 , 8:58pm
post #15 of 24

I'm not trying to threadjack here but I asked the question a few post back about using the figurines the client brings. Is that a copyright infringement? Be it a deco pac or something they bought at a retail store or online.

I understand the use of the character shaped pans is infringement, but is the figurine/toys?

Also if you do any type character cake in any form for FREE is it okay to post a picture? I did several of these for nothing when I was building my website. I just need some good pictures. Was that illegal? I wasn't trying to break the law, I didn't know.

mclaren Posted 9 Mar 2012 , 12:08am
post #16 of 24

For the record, I've never made or sold any copyrighted characters and don't intend too.

That being said, I'm wondering abt the argument of the companies such as Disney for instance, who prohibits the reproduction of cakes of their licensed characters not ONLY due to the financial loss to them (this I understood perfectly) but also to the risk of having a decorator producing a poor imitation of their character even for personal use at home as this would cause damage to their reputation (this, I would like to comment on).

How is this any different from a decorator purchasing a licensed Mickey Mouse pan, baked her cake and poorly slapping icing n the cake that made it an ugly Mickey image eventhough the licensed mold supposed to produce a perfectly sculpted Mickey naked cake? Can Disney sue a lowly skilled decorator for this reason? Trust me I've seen a fair share of poorly iced cakes made from licensed pans on the internet.
So please don't use this argument to defend these big companies. I would just leave it at they'll suffer losses of income should people around the world keep violating the copyright law.

P/s - what abt those living in a remote island on some remote part of the world where nobody exports all these licensed toppers to, and her poor son stomping his feet so that the talented decorator mom would make him a Mickey cake ? Lol. Just kiddin'.

jason_kraft Posted 9 Mar 2012 , 1:28am
post #17 of 24
Quote:
Originally Posted by cakelady2266

I'm not trying to threadjack here but I asked the question a few post back about using the figurines the client brings. Is that a copyright infringement? Be it a deco pac or something they bought at a retail store or online.

I understand the use of the character shaped pans is infringement, but is the figurine/toys?



Licensed decopacs and figurines are OK to use on cakes (for personal or commercial use), since the copyright owner gets a cut and the doctrine of first sale specifically protects your right to resell the item you buy.

The difference with things like character cake pans and Cricut cartridges is that you can create an unlimited number of likenesses of the character with a single purchase, while a decopac or figurine can create exactly one likeness per purchase (namely, the decopac or figurine itself).

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Also if you do any type character cake in any form for FREE is it okay to post a picture?



Creating your own likeness of someone else's original work is a copyright violation unless you have permission from the copyright owner. It does not matter if you sell the cake, donate the cake, make the cake for your own family, etc.

If tutorials on how to create the likeness of a character in specific medium are posted by the copyright owner themselves (like Disney does in some cases), following those instructions to create said likeness for personal use should be OK, since by posting the tutorial the copyright owner has given implicit permission.

Please note that I am not an attorney, but I have studied IP law in business school. These are just my opinions, if you want a definitive answer you should talk to an IP attorney.

jason_kraft Posted 9 Mar 2012 , 1:48am
post #18 of 24
Quote:
Originally Posted by mclaren

That being said, I'm wondering abt the argument of the companies such as Disney for instance, who prohibits the reproduction of cakes of their licensed characters not ONLY due to the financial loss to them (this I understood perfectly) but also to the risk of having a decorator producing a poor imitation of their character even for personal use at home as this would cause damage to their reputation (this, I would like to comment on).

How is this any different from a decorator purchasing a licensed Mickey Mouse pan, baked her cake and poorly slapping icing n the cake that made it an ugly Mickey image eventhough the licensed mold supposed to produce a perfectly sculpted Mickey naked cake? Can Disney sue a lowly skilled decorator for this reason?



I definitely see your point here. Anyone can sue anyone else for any reason, but Disney would not win this lawsuit on copyright grounds since they have provided a license for personal use. From the IP owner's perspective, they probably think that the harm caused by the poor implementation of a cake made from a licensed pan for personal use only would be inconsequential, and the poor imitation argument is more aimed at commercial infringers who advertise infringing products that may be made without a stencil, and thus have a greater chance to be a poor copy of the character.

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So please don't use this argument to defend these big companies.



It's not just big companies, copyright protects any original work regardless of whether the creator was an individual or a business. Arguments for or against the enforcement of copyright law are all moot anyway, since the copyright owner is the one who has the option to take legal action.

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P/s - what abt those living in a remote island on some remote part of the world where nobody exports all these licensed toppers to, and her poor son stomping his feet so that the talented decorator mom would make him a Mickey cake ? Lol. Just kiddin'.



Interesting that you mention that...there are some countries that do not participate in international IP agreements, so if you live in Afghanistan, Eritrea, Ethiopia, Somalia, Turkmenistan, or Tuvalu you can go ahead and make all the Mickey Mouse cakes you want. China also has very lax enforcement of copyrights, since a significant amount of their GDP is based on IP infringement.

http://en.wikipedia.org/wiki/List_of_parties_to_international_copyright_treaties

mclaren Posted 9 Mar 2012 , 2:22am
post #19 of 24
Quote:
Originally Posted by jason_kraft

Interesting that you mention that...there are some countries that do not participate in international IP agreements, so if you live in Afghanistan, Eritrea, Ethiopia, Somalia, Turkmenistan, or Tuvalu you can go ahead and make all the Mickey Mouse cakes you want. China also has very lax enforcement of copyrights, since a significant amount of their GDP is based on IP infringement.




Thanks Jason for sharing the info.. however, REALLY??? (on the quote above).. Then again, Ethiopia, Somalia.. people there are lucky to get food ....rather than worry about how their cakes look like. So I get the point..

Thanks again.

ajwonka Posted 9 Mar 2012 , 2:52am
post #20 of 24

I know this has been addressed but I wanted to point it out again, I called Starbucks 3 weeks ago to get permission to use an edible image of their logo on a (free) bday cake for my sister. They said no. Even for a free, personal use, family cake... No logo!

cakelady2266 Posted 9 Mar 2012 , 4:04pm
post #21 of 24

Thanks Jason and scp1127. I feel dumb for not digging deeper about copyright laws and issues way before now.

So if I understand correctly I'm good with my figurine cakes being on here, Facebook or my website? But anything like Mickey ear cakes or Spongebob done in a sheet pan needs to go.

Oh and while I have you here one more question. What about college sports logos? I'm guessing that is a no-no?

jason_kraft Posted 9 Mar 2012 , 5:24pm
post #22 of 24
Quote:
Originally Posted by cakelady2266

So if I understand correctly I'm good with my figurine cakes being on here, Facebook or my website? But anything like Mickey ear cakes or Spongebob done in a sheet pan needs to go.



If the figurines were purchased and are licensed then you should be OK as long as there are no other copyrighted elements on the cake. If you make a cake from a character pan that says home use only you are fine posting it on your personal web site but not your business site.

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Oh and while I have you here one more question. What about college sports logos? I'm guessing that is a no-no?



Just like any other logo, you would need to obtain permission from the copyright owner. Sports teams are usually pretty good about granting permission though.

cakelady2266 Posted 9 Mar 2012 , 5:33pm
post #23 of 24

When trying to get permission from sports teams (college) do you have to obtain it each time or do they grant it for a certain period of time?

jason_kraft Posted 9 Mar 2012 , 5:38pm
post #24 of 24

It depends, the team may only grant a single use license, but if you explain that you get lots of requests for decorations using their logo they may grant a license for a year at a time or longer.

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