......I worked for a national company and they went after anyone, for any reason, regardless of how small the perceived infringement. They once sent a notice to a licensed home baker with a business name that was similar to, but not the same as (and would not have been confused with my employer). They told her to change her business name or she would hear from them again. It seemed so petty, but this was their stance......
......Just curious, do you know if she changed her name? Do you know if they would have really gone after her if she didn't?.......
Yrs ago there was a local resturant that had been in business for many, many yrs using the name "The Flintstones". All of a sudden, as I said, after many, many yrs they got a letter (who knows if more?) telling them they HAD to cease and deciest(sp?) using that name. They did.
I don't believe there are enough extra people to take the time to go after all the cake copyright infringers that are out there now. .
Yeah, tell that to the cop that only tickets ME and lets 20 other speeders go by. Dumb bad luck, or the "example" case... we just need to be aware.... and the potential penalty for violating the law. Somehow saying. "Yeah, that's the law but I doubt they can catch me..." doesn't seem like a good business plan.
Thanks for the links scp1127!
I think that cop found me too...
I don't think that the copyright issues associated with the music industry are the same as the ones for caking, because the incentives for music copyright owners to enforce their copyrights are far stronger than for a company, even Disney, to go after casual violators making Mickey Mouse cakes.
The music industry sells songs to the public. If a person downloads a song illegally, the record company, artists, etc do not get the money they would get from someone who buys that song. If enough people do this, the music industry is seriously harmed. The music industry is struggling with album sales. It pays for them to crack down on illegal down loaders. They don't have the resources to go after everyone so they go after the heavy downloaders and have also, at times, gone after casual downloaders, to make a public example of them. Many people, but not everyone, believe downloading is stealing, even people who do it anyway, so when the music industry goes after casual downloaders, they do not take a huge public relations hit.
As for character cakes, most companies need to protect the characters they own so they can make money off of selling movies,toys, etc of of these characters. Somebody making a Mickey Mouse cake doesn't directly hurt Disney's profits in the same way as someone illegally downloading music - where you get the final product without paying for it. That said, companies do need to show that they make efforts to protect their Intellectual property from violations, so companies will usually send cease and desist letters to violators that that become aware of. You don't usually see the aggressive tactics that the music industry takes for a variety of reasons, but one of them is that going after a mom and pop bakery in court without first giving them a warning to stop would be a PR nightmare for a company, which defeats the point of protecting the brand.
Interesting discussion!
I asked Kaysie Lackey what she though about copyright, since she is a famous cake artist that makes high-profile cakes that one could argue are copyright infringement.
I paraphrase, but she said she has received cease and desist letters, and she has beaten them. As long as nothing is a 100% duplicate (I imagine like printing a logo and using it without permission) it's difficult for the company sending the C&D letter to win.
Here's my thoughts: It's one thing if you have an exact copy of a song that you are redistributing in it's original form to others without paying for it - that's pirating. But it's another thing to interpret a theme or character onto a cake. I'm not saying it's OK to do one or the other, but I just don't agree that this particular case (that is setting precedent against digital pirating of music), is relevant to someone putting their interpretation of a mouse that just so happens to have black ears on a cake.
Any law student can send a C& D letter. So what? Has any company taken the next step and actually filed a lawsuit against a cake artist/bakery for copyright infringement? And who won? That's relevant.
I paraphrase, but she said she has received cease and desist letters, and she has beaten them.
I'm curious how she "beat" the C&D letters...did she just ignore them and hope the company was bluffing, or did she pay for an attorney and go through the time and expense of a trial?
But it's another thing to interpret a theme or character onto a cake. I'm not saying it's OK to do one or the other, but I just don't agree that this particular case (that is setting precedent against digital pirating of music), is relevant to someone putting their interpretation of a mouse that just so happens to have black ears on a cake.
This sounds like an example of a derivative work, which may or may not be infringement depending on which elements are used in the design. A design with a generic mouse with black ears would be OK, but if a reasonable person would look at a derivative work starring a mouse and immediately think "that's Mickey Mouse" it is probably infringement. And since infringement is a civil tort, the plaintiff has a much lower burden of proof.
http://en.wikipedia.org/wiki/Derivative_work
A good defense could be mounted if the derivative work is of a transformative nature, the most common example being parody, e.g. the first image in the wikipedia link above. This would still require spending thousands of dollars on a legal defense, which is why you won't see any case law relating to cakes anytime soon (it is far cheaper to just settle out of court).
I don't speak for Kaysie and didn't go into details with her, I was just speaking to a question someone asked earlier in the thread about how the famous people deal with it. I have no doubt she has her own lawyer, as do most people that have achieved the level of success she has.
There are laws on the books for copyright - my point was that I don't think this case is applicable to us as cake artists... not that there are no cases/laws out there.
As for character cakes, most companies need to protect the characters they own so they can make money off of selling movies,toys, etc of of these characters. Somebody making a Mickey Mouse cake doesn't directly hurt Disney's profits in the same way as someone illegally downloading music - where you get the final product without paying for it.
Sure they do. Disney licenses decopacs, so someone copying Mickey Mouse is illegally using someone else's work without having to paying for it (by buying the decopac or negotiating a license on your own). Even if there were no licensed products available and the company did not grant licenses, as the owner of the IP the company has the right to control how it is used.
No, I did not say that Disney is not harmed at all but someone making their own Mickey Mouse figurine instead of buying a decopac is not getting the final product without paying for it - just a facsimile, which depending on how good a sculptor that person is, may look pretty close to Mickey Mouse. But you can usually tell that the figurine is not an exact replica of MIckey Mouse. Also, some people actualy prefer the depopacs because they actually look exactly like the charachters and some, like me, dont like plastic figurines on my cakes, so i wouldnt buy them. which is why I don't agree that every unlicensed figurine equates to one foregone sale of a decopac. somepeople would never buy a decopac. The music downloader is getting the final product with out paying for it as he or sshe almost always gets the full artist's recording and you can't tell the difference from hearing it whether someone paid for it or not. There are people who never pay for music but would if there were no way to get it for free. (The analogous situation for cakes is if I liked a song, but instead of buying that song, i had my garage band recreate that song)
My point is that (1) the OP posted an article about the music industry crackdown on downloaders as proof and validation of her position she and others were right to harp on trademark infringement. To summarize her post, "look, you bakers who make charachter cakes, watch out because you might be fined for hundreds of thousands dollars!!!!!!!scare!!!!!scare!!!!!" and (2) I wanted to point out that copyright issues and the music industry handling of their copyright are very different. Cakers should not be anymore concerned about IP infringement than they were before reading the OP's posted article.
No, I did not say that Disney is not harmed at all but someone making their own Mickey Mouse figurine instead of buying a decopac is not getting the final product without paying for it - just a facsimile, which depending on how good a sculptor that person is, may look pretty close to Mickey Mouse. But you can usually tell that the figurine is not an exact replica of MIckey Mouse.
Unfortunately copyright law does not work that way...saying that the copy of someone else's work is just a reasonable facsimile instead of an exact copy is not a defense, unless the copy is transformational in nature (like a parody) or of such poor quality that you cannot identify what it was supposed to be based on.
The whole point of copyright law is to allow the creators of original work (whether that work is a cartoon character, song, movie, book, etc.) to protect their investment and have some control over how their work is used, within the limits of fair use.
some, like me, dont like plastic figurines on my cakes, so i wouldnt buy them. which is why I don't agree that every unlicensed figurine equates to one foregone sale of a decopac. somepeople would never buy a decopac.
The fact that the licensed products you would prefer to buy are not available is not a valid defense for copyright infringement.
The music downloader is getting the final product with out paying for it as he or sshe almost always gets the full artist's recording and you can't tell the difference from hearing it whether someone paid for it or not.
Nope. When you download MP3 files you are getting an inferior copy of the original in terms of audio quality, the audio in a MP3 file is typically 128-192 Kbps and you can tell the difference between the digital track and a CD quality recording.
Even a CD quality recording is inferior to the original master recording. If anything the original master would be considered the "final product", with CDs and high quality digital files for purchase from iTunes and the like being licensed copies, and MP3 files recorded from CDs without permission being unlicensed infringing copies. In the Mickey Mouse example Disney's in-house produced art could be considered the "final product", with licensed figurines and decopacs being the equivalent of legal CDs and digital music files, and unlicensed products using Mickey's likeness without permission (t-shirts, dolls, cakes) as the infringing items.
(The analogous situation for cakes is if I liked a song, but instead of buying that song, i had my garage band recreate that song)
You would still need to purchase a license if you want to legally recreate and record a copyrighted song (i.e. a cover version), this is called a mechanical license:
http://www.harryfox.com/public/DoIneedaMechanicalLicense.jsp
If the cover will not be recorded but will instead be played in public, a different type of license is required, but this is usually covered by the venue:
http://www.ascap.com/licensing/
Bottom line: both songs and cartoon characters are creative works, both are protected by copyright and/or trademark law, and as the case in this thread has shown the Supreme Court does not think an appeal of an infringement penalty due to the unreasonableness of a $675K fine on an individual is worth hearing.
You're correct that the music industry has been tougher on enforcement than the owners of cartoon characters, probably due to advancing technology that makes it trivial to copy digital audio. As technology continues to advance and it becomes easier and cheaper to duplicate 2D artwork in edible form you can eventually expect a similar response from Disney and the like. When ubiquitous personal 3D fabrication arrives (probably within the next 10-20 years) IP protection will be a very serious issue for these companies.
Jason, you are again getting hung up on winning your argument at any cost. The points you bring up have about zero to do with the recent court case and article posted in an attempt to draw parallels to putting characters on cakes.
I don't think VanillaSky (or myself for that matter) mean to debate the finer points of Copyright Law - we all know it exists. How we follow or ignore it could be debated until pigs fly. But that's not the point.
The point is: The music industry is attempting to extend existing copyright law based on a 1995 Supreme Court ruling to include digitally pirated music and trying to set the bar for what damages one could expect to claim, something thus far is unprecedented and has no existing standing in any court in the US. When that happens local courts kick the case up to state courts which kick the case up to federal courts. The goal is to get the Supreme Court to rule on the new application of an existing law to set a permanent precedent that can be cited in future cases in all states. By the Supreme Court declining to hear the case they are leaving the application of the law on the State level. Meaning, if the music industry wanted to try a similar case against someone in California they can cite the MA case as standing, but without the Supreme Court ruling on how the law is to be interpreted in that specific application, the CA judge can choose to disregard or interpret the case completely different. This is the how our legal system works.
Precedent has already been long established for copyrighted and trademarked material and it's application in regards to cakes. Regardless of the outcome of Tenenbaum v. Sony BMG Music Entertainment Inc, it's not going to change how Disney protects their licenses and how much one could get fined as damages by the court for putting a gumpaste Mickey on a cake.
The point is: The music industry is attempting to extend existing copyright law based on a 1995 Supreme Court ruling to include digitally pirated music and trying to set the bar for what damages one could expect to claim, something thus far is unprecedented and has no existing standing in any court in the US.
I don't see how the music industry is extending existing copyright law or setting the bar for damages, they are operating based on what currently exists in copyright law regarding infringement and allowed ranges of damages. If SCOTUS had upheld the defendant's appeal on the basis that damages should have been less because he didn't make any money, that would have been a different interpretation of the existing law.
Which 1995 ruling are you referring to?
And I'm sorry you feel I'm getting "hung up" on this, but my goal is not to "win at any cost", it's simply to have a discussion. If someone posts something that I feel is inaccurate, I will post my own viewpoint, and people can make up their own minds. Let's try to stick to the discussion at hand instead of going after individuals.
No, I did not say that Disney is not harmed at all but someone making their own Mickey Mouse figurine instead of buying a decopac is not getting the final product without paying for it - just a facsimile, which depending on how good a sculptor that person is, may look pretty close to Mickey Mouse. But you can usually tell that the figurine is not an exact replica of MIckey Mouse.
Unfortunately copyright law does not work that way...saying that the copy of someone else's work is just a reasonable facsimile instead of an exact copy is not a defense, unless the copy is transformational in nature (like a parody) or of such poor quality that you cannot identify what it was supposed to be based on.
The whole point of copyright law is to allow the creators of original work (whether that work is a cartoon character, song, movie, book, etc.) to protect their investment and have some control over how their work is used, within the limits of fair use.
some, like me, dont like plastic figurines on my cakes, so i wouldnt buy them. which is why I don't agree that every unlicensed figurine equates to one foregone sale of a decopac. somepeople would never buy a decopac.
The fact that the licensed products you would prefer to buy are not available is not a valid defense for copyright infringement.
The music downloader is getting the final product with out paying for it as he or sshe almost always gets the full artist's recording and you can't tell the difference from hearing it whether someone paid for it or not.
Nope. When you download MP3 files you are getting an inferior copy of the original in terms of audio quality, the audio in a MP3 file is typically 128-192 Kbps and you can tell the difference between the digital track and a CD quality recording.
Even a CD quality recording is inferior to the original master recording. If anything the original master would be considered the "final product", with CDs and high quality digital files for purchase from iTunes and the like being licensed copies, and MP3 files recorded from CDs without permission being unlicensed infringing copies. In the Mickey Mouse example Disney's in-house produced art could be considered the "final product", with licensed figurines and decopacs being the equivalent of legal CDs and digital music files, and unlicensed products using Mickey's likeness without permission (t-shirts, dolls, cakes) as the infringing items.
(The analogous situation for cakes is if I liked a song, but instead of buying that song, i had my garage band recreate that song)
You would still need to purchase a license if you want to legally recreate and record a copyrighted song (i.e. a cover version), this is called a mechanical license:
http://www.harryfox.com/public/DoIneedaMechanicalLicense.jsp
If the cover will not be recorded but will instead be played in public, a different type of license is required, but this is usually covered by the venue:
http://www.ascap.com/licensing/
Bottom line: both songs and cartoon characters are creative works, both are protected by copyright and/or trademark law, and as the case in this thread has shown the Supreme Court does not think an appeal of an infringement penalty due to the unreasonableness of a $675K fine on an individual is worth hearing.
You're correct that the music industry has been tougher on enforcement than the owners of cartoon characters, probably due to advancing technology that makes it trivial to copy digital audio. As technology continues to advance and it becomes easier and cheaper to duplicate 2D artwork in edible form you can eventually expect a similar response from Disney and the like. When ubiquitous personal 3D fabrication arrives (probably within the next 10-20 years) IP protection will be a very serious issue for these companies.
Jason, I never once said that a caker recreating a charachter was not a violation of the owner's of that characters copyright. So you spend a lot of time arguing against something I never said. Believe it or not, I am an attorney (corporate not IP) and I have no desire to engage in a back and forth "discussion" on the not so fine points of copyright infringement.
Again, my point is that illegally downloading songs is hurting the music industry in a way that copying and recreating a character image does not, which is why you see the aggressive tactics against downloaders. I don't predict that you'll see that kind of crackdown in the caking arena for the reasons i said in first post, so I don't see the reason to sound any alarms because of what happened to one illegal downloader in the article. I guess time will tell.
So just for fun i went to the Facebook Official Dora page and sent them a Private message asking if I could make some fondant/gumpaste Dora heads to put on cupcakes, they responded today telling me it was fine 
... So... would this protect me if I did make this for a customer?
So just for fun i went to the Facebook Official Dora page and sent them a Private message asking if I could make some fondant/gumpaste Dora heads to put on cupcakes, they responded today telling me it was fine
... So... would this protect me if I did make this for a customer?
Print out the page...It isn't the same as a letter from their legal department, but it's better than nothing! I also would NOT use it in any advertising or put it up on facebook, sometimes when the legal departments get involved they say that you can do it, but you can't post the pictures anywhere or use them in advertising.
So just for fun i went to the Facebook Official Dora page and sent them a Private message asking if I could make some fondant/gumpaste Dora heads to put on cupcakes, they responded today telling me it was fine
... So... would this protect me if I did make this for a customer?
I can't stress enough that this should be a question for your own attorney.
So just for fun i went to the Facebook Official Dora page and sent them a Private message asking if I could make some fondant/gumpaste Dora heads to put on cupcakes, they responded today telling me it was fine
... So... would this protect me if I did make this for a customer?
To be safe I would still contact Viacom directly and get permission from their legal department, the employee responsible for managing their FB presence may not have the authority to grant permission.
And I wouldn't worry about hiring an attorney to answer this question for you, that's overkill for a question like this.
So just for fun i went to the Facebook Official Dora page and sent them a Private message asking if I could make some fondant/gumpaste Dora heads to put on cupcakes, they responded today telling me it was fine
... So... would this protect me if I did make this for a customer?
Did you say you were selling them after you made them? Or are they under the impression you just want to make them for yourself? I think that may make a difference. Just a thought................
So just for fun i went to the Facebook Official Dora page and sent them a Private message asking if I could make some fondant/gumpaste Dora heads to put on cupcakes, they responded today telling me it was fine
... So... would this protect me if I did make this for a customer?Did you say you were selling them after you made them? Or are they under the impression you just want to make them for yourself? I think that may make a difference. Just a thought................
that's a good point! I didn't even think of that.
HMMM no, I didn't specifically say I was selling them I just said I was a hobby baker. However I found an email address for one of Nickelodeons legal departments and I emailed them and put that I was selling them. So we shall see 
Thanks for the advice!
Just wanted to say that my husband was involved in a lawsuit like this several years ago. I cannot post personal details, but he was the small fry and they wanted to make an example out of him to put the message out loud and clear to the rest. Don't think it cannot happen to you, we didn't think it would either and after draining our personal savings and having to start over I can say, "get the letter of permission!" You don't want to get caught with your pants down and be made an example of because you didn't prepare/plan ahead.
Wow, I've been over my head in orders for the last week. I'm really glad that it was such a good debate.
My only reason for posting is that I wanted to point out that the law is slowly catching up to the web.
I would like to comment on a few things.
I will still maintain that paying a lawyer $500.00 to ask about a $50.00 cake is ludicrous. This is where we have to either be conservative and say no, or just chance it. Ever heard of the law of diminishing returns?
And I can't even imagine how I was confused with costumeczar. I can't even make character cakes, so no reason to get permission.
About five years ago, My daughter had three paid sources for music. One I thought was edgy. But "everyone" assured me that it was legit. About a year later, within a two week period, I got four C&D orders along with a notice from our internet provider that continued infringement would result in permanent loss of internet service to our household. This was over four $1.00 songs.
Again, my point was only to show, with this extreme case, which obvoiusly had extenuating circumstances, that these copyright/trademark holders are getting serious. There is a federal task force busting web and retail stores selling counterfeit sports items, handbags, sunglasses, etc. This is new. Never before the internet, could a company google "Mickey" and get literally thousands of offenders. With the IP address, the case is cheap, easliy won, and is a real money-maker once the program is in place.
Because it looks like owners are getting more aggressive in so many markets, and with cached pages on the web, my only reason for posting was to give a little more info so that we can all decide for ourselves what is best, considering that a picture posted today and later taken down, could still haunt you in two years if this becomes a reality.
Remember, the Feds set the number of copies at 10 to change a civil violation into a federal crime. Obviously, the law was written to include the little guy.
Thanks Jason, for always adding the details and being so thorough in posts.
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