CakeIstryByRhea Posted 19 Sep 2012 , 11:17pm
post #1 of

Hi everyone,

It was just brought to my attention that using the likeness of Disney characters and such can constitute a copyright infringement - so how do we as cake decorators follow through with customers requests for a Disney Cars cake, for instance, without getting ourselves into trouble?

Thanks for your help!
Rhea

24 replies
jason_kraft Posted 20 Sep 2012 , 12:50am
post #2 of

I usually recommend licensed character toppers on a generic cake with a corresponding color scheme. If the customer insists on a custom design, I require the customer to provide written authorization from the copyright owner before the order can be accepted.

DeniseNH Posted 20 Sep 2012 , 2:22am
post #3 of

The answer is simple. You don't.

CakeIstryByRhea Posted 20 Sep 2012 , 2:25am
post #4 of

I already have someone asking for another Disney cake so I will take your advice Jason and tell them that I will only use the liscenced cake topper and do some funky colours and designs to compliment it. Thanks again for the advice.

3D-Sweets Posted 20 Sep 2012 , 1:52pm
post #5 of

I agree with Jason. I've done two "character" cakes that had only background sorts of things, no copyrighted material. My cars cake had a street #5 with desert background, client put toy cars on top, and my Little Mermaid had only miscellaneous underwater stuff, with a purchased Ariel candle as topper.

AZCouture Posted 20 Sep 2012 , 2:53pm
post #6 of

I won't do them anymore, but partly for an egotistical reason than anything else. This area is drowning in Mickey/Dora/Thomas/anything from google that's been done a million times. Serious lack of creativity and imagination these days. I want no part of it. And yeah, the pesky copyright thingy too. icon_biggrin.gif

tcbalgord Posted 20 Sep 2012 , 2:55pm
post #7 of

Jason, I did not know that you could do that! That is really an excellent alternative. Do you happen to know how long it takes for said company to get back to people with written consent?

Rhea, you can also order from supply companies such as deopac. by doing this you have bought the right to use that product. It is a great alternative and they do have awesome things.

AZCouture Posted 20 Sep 2012 , 2:57pm
post #8 of

Don't you have to use the Decopac kits exactly as shown on their example cakes though? Like, if the cake shows the topper in a specific place, you can't go change up the design at all? Or am I imagining things?

jason_kraft Posted 20 Sep 2012 , 4:44pm
post #9 of
Quote:
Originally Posted by tcbalgord

Jason, I did not know that you could do that! That is really an excellent alternative. Do you happen to know how long it takes for said company to get back to people with written consent?



It depends on the company. Some will never get back to you, some will provide consent quickly, and others will say "no" quickly. But by having the customer take care of this, if the company says no the customer should direct most of their ire at the copyright owner instead of you.

tcbalgord Posted 20 Sep 2012 , 10:14pm
Quote:
Originally Posted by AZCouture

Don't you have to use the Decopac kits exactly as shown on their example cakes though? Like, if the cake shows the topper in a specific place, you can't go change up the design at all? Or am I imagining things?




I have almost never done them as shown. You're buying the right to use that product, they don't care how you use it as long as you have paid for the right to use it.

Thanks Jason, this is going into my memory bank!

hbquikcomjamesl Posted 20 Sep 2012 , 10:42pm

Well, I think they might object if you used it in such a way as could be considered even slightly defamatory.

Walt Disney World has a number of backstage tours. One of them, "The Magic of our Steam Trains," was conceived and implemented by two WDWRR cast members (a conductor and an engineer, as I recall). Their vision was of actual WDWRR cast members taking guests back to the Roundhouse, letting them climb into the cab of a (cold) locomotive, demonstrating a boiler blowdown (what they do to purge the sediment from a steam locomotive boiler), and finishing with a brief lecture about Walt's history with trains, all before the park opens in the morning.

Management barely tolerated the tour. Until it turned out to be a big hit.

For the badge issued to tour guests, and the souvenir pin handed out at the end of the tour, management decided to use the designs that the WDWRR people had come up with, with only minor redrawing by Disney artists (strictly to ensure conformity to the standard Mickey Mouse character design).

At Disneyland, when one of the Disney artists painting watch faces in the clock-and-jewelry shop on Main Street comes up with an entirely new design, it has to be submitted for official review before it can actually be scanned onto a watch face; even if you pay the big bugs, and commission a custom watch, you can still only get trivial variations (e.g., personalization and so forth) on pre-approved designs.

Now on the other hand (going back to Florida for a moment), if you take the granddaddy of all backstage tours, the 7-hour, 3-parks-with-a-private-bus Backstage Magic tour, you'll probably see a fair amount of Disney art, by cast members, that hasn't been formally approved for public consumption. But it's in a backstage area, BSM guests are considered "privileged," with access to a lot of things not for public consumption, and unless you're an official Disney photographer, backstage areas are no-photography zones anyway, so what's hanging on the backstage walls stays backstage.

heartsnsync Posted 21 Sep 2012 , 2:38am

In regards to DepoPac kits, if you call their customer service they will tell you that if you order a DecoPac licensed character cake kit, you are only authorized to decorate the cake exactly as shown in the picture that comes with the kit. I looked into that some time back when I was deciding what I would and would not do when I opened my business.

scp1127 Posted 21 Sep 2012 , 6:12am

I made a Harry Potter cake exactly like the kit in the grocery store showed. I used the little figure. The cake was a gourmet cake with Italian meringue buttercream colored exactly like the picture. I made textures in the buttercream, and wrapped the little paper "Quidditch" towers around a square column. There were fondant accents. When I finished, it looked just like the authorized cake for supermarkets (airbrushed), but the quality was evident.

The other option I offer is the toys. I make the background cake and add tons of toys. My grandson had $45.00 worth of "Cars" toys on his cake. A client recently had a cake with the entire top covered with a Thomas The Train toy, tracks and all. Children love these cakes and they are legal.

I'm in WV so I bought the official WVU cake and cupcake pans (very expensive). There are no restrictions on these pans. Now I can offer these highly popular products.

kelleym Posted 21 Sep 2012 , 12:40pm
Quote:
Originally Posted by scp1127

I covered with a Thomas The Train toy, tracks and all. Children love these cakes and they are legal.

I'm in WV so I bought the official WVU cake and cupcake pans (very expensive). There are no restrictions on these pans. Now I can offer these highly popular products.




I'm not sure the advice with the pans is legally sound. It's not the silly "For Home Use Only" stamp on Wilton pans that prevents a person from selling that cake. (Which is called a Contract of Adhesion, and is frequently legally dubious in and of itself.) It's the fact that the character you will be reproducing with the pan is copyrighted. You may still want to contact WVU and get permission for your cakes made with these pans, or get a legal release for all cakes made with those pans.

tcbalgord Posted 21 Sep 2012 , 12:59pm

Double post

tcbalgord Posted 21 Sep 2012 , 1:00pm

The great thing about decopac is that you are limited to just their expensive "kits". In fact I rarely buy the kit. They have rings, picks, pop tops and edible images. I am however still loving Jason's thought and yesterday told a customer I'd be happy to make her an avengers cake if she came back with written permission from Marvel! She was excited that in her words "a small town mom like me can contact a huge person like Marvel."

I think the best advice I can offer is when it comes to copyright, when in doubt just pass. Better safe then sorry. And as for the comment that so many CC cakes are of licensed things, yes there are a few CC'ers who say to heck with copyright I'll take my chances; the majority of us do them for friends and family and for zero cost. By zero cost I mean (speaking for myself) I take no money, no materials, no exchange of any kind for those cakes.

kelleym Posted 21 Sep 2012 , 1:16pm

And while I'm not a lawyer, I am thinking that the old "you must make the Deco-Pac cake exactly as it is shown in the photo" trope may also be a Contract of Adhesion, and may not hold much water. When you buy something that comes with a built-in contract like that, you didn't sign anything, you didn't bargain for anything, you just bought the item. Conditions can't be imposed on how you use it. You bought it!

I really like Tabberone's site. She's not a lawyer either, but has a lot of experience with this stuff, and is good at putting it into lay terms. http://www.tabberone.com/Trademarks/CopyrightLaw/Quilting/Quilting.shtml

Quote:
Quote:

False claim:
By purchasing this pattern, you agree to the following terms.
Since when? Absent some form of consent, or a written contract, the pattern designer/manufacturer has no right to impose conditions upon the purchaser. The courts are in agreement that some sort of consent must be shown by the purchaser before any limitations on the use of the copyrighted item can be enforced. The simple act of printing such a statement on a web site or on a copyrighted article is not enforceable without consent before the purchase.


jason_kraft Posted 21 Sep 2012 , 2:41pm
Quote:
Originally Posted by kelleym

And while I'm not a lawyer, I am thinking that the old "you must make the Deco-Pac cake exactly as it is shown in the photo" trope may also be a Contract of Adhesion, and may not hold much water.



Can you explain why you think this (and the "for home use only" clause on some pans) would be considered unenforceable? Adhesion contracts are most definitely enforceable, unless they have unconscionable terms that are considered overly severe or unfair to one party. It's doubtful that requiring a specific arrangement would be considered unconscionable.

If anything, the decopac restrictions would be violating the Doctrine of First Sale, since once you purchase the decopac you would be free to use it as you wish as long as you don't introduce your own copies of copyrighted characters. The "home use only" clause for pans would continue to be enforceable, since you would be making copies of copyrighted characters out of cake and the Doctrine of First Sale would not apply.

mrsg1111 Posted 21 Sep 2012 , 2:55pm

What if you go to a website such as nickjr and demonstrate how to make dora cupcakes. do you still need to get the permission?

jason_kraft Posted 21 Sep 2012 , 3:41pm
Quote:
Originally Posted by mrsg1111

What if you go to a website such as nickjr and demonstrate how to make dora cupcakes. do you still need to get the permission?



If you are approached by a company to demonstrate a recipe on their web site, you would be fine since the content will be displayed on the copyright owner's web site. If you are asking if you still need permission to duplicate copyrighted characters if the copyright owner does so on their web site, the answer is yes.

scp1127 Posted 22 Sep 2012 , 5:44am

The University pans are officially licensed and have no restrictions. You can get them for all of the big schools.

kelleym Posted 22 Sep 2012 , 1:28pm
Quote:
Originally Posted by scp1127

The University pans are officially licensed and have no restrictions. You can get them for all of the big schools.



With all due respect, the Wilton character pans are officially licensed, too. The "For Home Use Only" stamp is just a courtesy warning, it's not a binding contract. The issue is that you are reproducing a copyrighted or trademarked image.

jason_kraft Posted 22 Sep 2012 , 3:42pm
Quote:
Originally Posted by kelleym

The "For Home Use Only" stamp is just a courtesy warning, it's not a binding contract.



If the licensing terms from the copyright owner indicate that the likenesses produced by the pan are for home use only (which I'm sure they do, otherwise there would be no warning on the package) then those terms apply to anyone using the pans to create said likenesses.

kelleym Posted 22 Sep 2012 , 4:01pm

Well I think your advice is not legally sound, but I didn't wake up this morning thinking I would spend my day beating my head against a wall, so I'll bow out.

Bottom line, guys: Don't sell copyrighted or trademarked cakes without obtaining written permission from the owner.

jason_kraft Posted 22 Sep 2012 , 4:07pm
Quote:
Originally Posted by kelleym

Well I think your advice is not legally sound



I'm curious, why do you think it is not legally sound? If there's something I overlooked it would be nice to know, it's not very constructive to basically say "you're wrong" without adding anything else.

Quote by @%username% on %date%

%body%