debidehm Posted 13 Aug 2012 , 8:16pm
post #1 of

I would really like to try my hand at the cake picture I'm posting. My question is, are cakes like this ok to make and sell, or would there be the copy write/trademark issue? Any help would be much appreciated!
LL

20 replies
jason_kraft Posted 13 Aug 2012 , 8:19pm
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IMO it should be OK if you take the mouse ears off.

SoFloGuy Posted 13 Aug 2012 , 8:36pm
post #3 of
Quote:
Originally Posted by jason_kraft

IMO it should be OK if you take the mouse ears off.




I think it's fine as it is. It's just two black circles.


Disney doesn't own two black circles any more than McDonalds owns an M.

jason_kraft Posted 13 Aug 2012 , 8:39pm
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Look at that cake by itself and the first thing most people will think is "Minnie Mouse". That's not a good sign if you're trying to avoid infringement.

But then I tend to be more conservative and err on the side of caution when it comes to copyright infringement, especially if the cake can be easily modified with little or no impact on the quality of the design.

KHalstead Posted 13 Aug 2012 , 8:47pm
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Disney is not the company you want to be messing with over copyrights!! I personally live in a town of 15000 people and personally know 2 cake decorators (home hobbyists that started to sell cakes) that have been contacted by Disney with a cease and disist order that threatened to haul them to court at the tune of 2.5 million per cake sold with any of their copyrighted materials...and this included the two black circles on top of a cake...I would stear clear of it!!


There are ways around this...you can tell your customer you can do all but the two black circles and they can get to black circles of their own to add, or a Disney toy.

SoFloGuy Posted 13 Aug 2012 , 9:29pm
post #6 of
Quote:
Originally Posted by KHalstead

Disney is not the company you want to be messing with over copyrights!! I personally live in a town of 15000 people and personally know 2 cake decorators (home hobbyists that started to sell cakes) that have been contacted by Disney with a cease and disist order that threatened to haul them to court at the tune of 2.5 million per cake sold with any of their copyrighted materials...and this included the two black circles on top of a cake...I would stear clear of it!!


There are ways around this...you can tell your customer you can do all but the two black circles and they can get to black circles of their own to add, or a Disney toy.




You know two that have been contacted. Do you know any that have been sued? They can sue, but it would be a losing proposition. They can win, but in certain states they can't garnish your wages or take your house so they are suing if you voluntarily want to pay them. In most cases only the government can take away your home or garnish your wages for money that is owed to them. Plus it would be more damaging press to know that they are taking away someone's home. It's just bully tactics when black circles are concerned. All they can do is try to scare you.

jason_kraft Posted 13 Aug 2012 , 9:35pm
post #7 of
Quote:
Originally Posted by SoFloGuy

You know two that have been contacted. Do you know any that have been sued? They can sue, but it would be a losing proposition.



Considering the size of Disney's legal team I'm not sure how accurate that statement is.

Quote:
Quote:

They can win, but in certain states they can't garnish your wages or take your house so they are suing if you voluntarily want to pay them.



If you lose a judgment, they will send debt collectors after you to trash your credit. The vast majority of the time these cases are settled out of court anyway due to high legal expenses on both sides.

SoFloGuy Posted 13 Aug 2012 , 9:48pm
post #8 of
Quote:
Originally Posted by jason_kraft

Quote:
Originally Posted by SoFloGuy

You know two that have been contacted. Do you know any that have been sued? They can sue, but it would be a losing proposition.


Considering the size of Disney's legal team I'm not sure how accurate that statement is.

Quote:
Quote:

They can win, but in certain states they can't garnish your wages or take your house so they are suing if you voluntarily want to pay them.


If you lose a judgment, they will send debt collectors after you to trash your credit. The vast majority of the time these cases are settled out of court anyway due to high legal expenses on both sides.




They don't want to sue you, they want to scare you. Even if you do have the legal right to use two black circles on your cake they will tell you that you can't. It's not illegal for them to threaten you with a lawsuit.

jason_kraft Posted 13 Aug 2012 , 10:02pm
post #9 of
Quote:
Originally Posted by SoFloGuy

They don't want to sue you, they want to scare you. Even if you do have the legal right to use two black circles on your cake they will tell you that you can't. It's not illegal for them to threaten you with a lawsuit.



I don't see how that's relevant. If you make something that looks too much like a copyrighted Disney character, you run the risk of Disney coming after you with a C&D or worse. If you're OK with this risk, then you don't have to worry, but if you want to avoid it you are better off erring on the side of caution.

In any case, ignoring a C&D or legal threat is not a viable strategy when it comes from a multi-billion-dollar conglomerate.

debidehm Posted 14 Aug 2012 , 12:39am

I appreciate the input. I think just to be on the safe side, I'll stay away from cakes like this. While I thought too that it was "just 2 black circles", there's no denying that it's representing Minnie Mouse. Thanks all that responded to my post!

hbquikcomjamesl Posted 14 Aug 2012 , 3:11am

Back in 1934, when Hal Roach, Laurel and Hardy, et al., included a cameo by a recognizable Mickey Mouse puppet in their version of Babes in Toyland, it was considered flattery. Now it's infringement. We live in far too greedy a society these days.

jason_kraft Posted 14 Aug 2012 , 3:21am
Quote:
Originally Posted by hbquikcomjamesl

Back in 1934, when Hal Roach, Laurel and Hardy, et al., included a cameo by a recognizable Mickey Mouse puppet in their version of Babes in Toyland, it was considered flattery. Now it's infringement. We live in far too greedy a society these days.



Hal Roach (the producer of Babes in Toyland) and Walt Disney were apparently good friends, so they probably worked out a licensing arrangement. Also, Mickey Mouse in that movie was not a puppet, it was played by a small monkey.

http://ryanmccormickfilmhistory.blogspot.com/2012/01/babes-in-toyland-1934.html

If you were good friends with Robert Iger (the current CEO of Disney) you'd probably have a much easier time getting a license.

hbquikcomjamesl Posted 14 Aug 2012 , 4:08am

I stand corrected on the monkey, and thank you. But my point is that things that would have been laughed off some 50-80 years ago are now taken entirely too seriously. And I speak as one who both produces and consumes intellectual property.

sweettreat101 Posted 14 Aug 2012 , 7:17am

You don't want to mess with Disney. If you are making it for your family and not charging money it's ok but when you are making a profit it's a different story. If you can look at the cake and Minney Mouse or Mickey comes to mind then yes it's infringement or copyright. If you make a Mickey Mouse and change his eye color and slap a bow on his head people still know he's Mickey Mouse.

AKS Posted 14 Aug 2012 , 9:20pm

I think it is OK because it IS just 2 black circles and a bow. Now if those circles were connected like the Disney logo, I think that would be a different story. Have you ever seen on Disney channel when a Disney star would take a wand and make a circle with a line and then another circle a la Mickey's head and ears? That would be an infringement IMO. In addition, the cake is pink and not red. For as many reasons they can say C&D, you can show that this is not exactly the same. Is coke the same as pepsi? No because they change around a few of the ingredients. The ears and the colors are clearly different on the OPs posted cake from the traditional Minnie. JMHO.

jason_kraft Posted 14 Aug 2012 , 9:28pm
Quote:
Originally Posted by AKS

For as many reasons they can say C&D, you can show that this is not exactly the same.



Showing that your cake is not exactly the same is not a defense against infringement, if it is similar enough to be recognizable. With the ears, the bow, and the polka dots there's no doubt it's supposed to be Minnie Mouse. And if a minor change would be enough to avoid even having to deal with a C&D in the first place, that seems like an easy decision to me.

EvMarie Posted 14 Aug 2012 , 9:46pm

Soooo, this topic, as many times as it has been discussed never supplies an answer to the question: What CAN you do?

Well, at least I haven't read any posts that address what you CAN do. I'm gathering that you CAN purchase from a store like Walmart or a party store a disney toy or disney sugar candies to add or embellish. By purchasing these toys or sugar candies or anything else that's a copyright protected image...you are in essence purchasing the right to use it? Is this right?

Sooooo, if I make a pink, black, and white cake with polka dots and ruffles....and bows...AND THEN, add some sort of purchased minnie item - - - I'm okay?

Same question with that Thomas Train cartoon & the Cars movie. (I'm not up on the latest characters) Cakes can be made in complimenting colors and perhaps train tracks and a race car theme.....but the ACTUAL character must be purchased and then added?

Are those scenarios okay?

jason_kraft Posted 14 Aug 2012 , 9:55pm

If you buy any licensed product, you are free to resell that product by itself or on top of a cake. So neither of the scenarios you mentioned would be infringing.

Copyright only restricts what you can do with copies made without permission.

hbquikcomjamesl Posted 14 Aug 2012 , 10:06pm

Just because I say it's deplorable that we're living in a litigious era where greed trumps creativity, doesn't mean you should not err on the side of caution.

DeniseNH Posted 14 Aug 2012 , 10:14pm

I was taught at an ICES show that if a child can point to a cake and name the copyrighted character, you are in violation and can be sued. And what is the first thing that pops into your mind when you see the picture - yup, Mickey.

jgifford Posted 15 Aug 2012 , 6:07am

One thing I keep seeing is that people think if they're not selling the cakes for profit, it's okay. It's not. Infringement is infringement. Disney doesn't care if you made any money on a cake or not - - if they didn't, it's infringement.

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