Mouse Ear Cake-Legal Or Illegal?

Decorating By mbocharski Updated 28 Oct 2014 , 10:42am by evatasha

mbocharski Posted 5 Jun 2013 , 1:22am
post #1 of 27

AHey everyone. I'm new to cake decorating so I'm not sure how some things work. I know you aren't suppose to make known characters such as a disney character if you're going to sell it. I was asked by a friend to make a Mickey Mouse cake and I said I couldn't do to copyright laws. She then asked if I could make a cake that has the ears on top since its just " mouse ears". I'm not sure what to tell her. I really don't want to get in trouble or sued. I would be putting it on my Facebook because I made it and I'd want to show my family and friends. Help?

26 replies
liz at sugar Posted 5 Jun 2013 , 1:48am
post #2 of 27

This is just my opinion, but if an average person looks at your cake and thinks "Mickey Mouse" you have infringed on the intent of the copyright.

 

Liz
 

pumpkin37 Posted 5 Jun 2013 , 1:53am
post #3 of 27

AI did a minnie mouse style cake for my granddaughter..yes I posted to fb. IVE HAD NO ISSUES. I HIGHLY DOUBT DISNEY WOULD SUE A HOME CAKE DECORATOR FOR MAKING A CAKE THT SOME PEOPLE MAY CONSTRUE AS mickey or minnie....too much time and money. Your not selling it commercial ur doing a friend a favor. BTW, i work in the legal community.

auntginn Posted 5 Jun 2013 , 1:55am
post #4 of 27

This is true, the way to get around that would be to have the face of a generic mouse on the cake.  Which is not what your friend is asking for.

mbocharski Posted 5 Jun 2013 , 1:59am
post #5 of 27

AWhat about if I did a cake in the baby blue (she's going for baby Mickey) and decorated it. The. She could add a boughten Mickey Mouse toy or something? Would that be safer? She is only paying for the ingredients since she insisted. Does that make a difference? Thank you all so much!

pumpkin37 Posted 5 Jun 2013 , 2:06am
post #6 of 27

AI think you will be just fine. Whos to say its mickey or minnie..maybe its mighty mouse...its a darn mouse..sorry, I work with 20 lawyers not a one ever said do u think u might be infriging on a copyright? DISNEY SELLS PANS AND TOPPERS..

pumpkin37 Posted 5 Jun 2013 , 2:09am
post #7 of 27

AGoogle baby mickey mouse cakes..see how many images you come up with...i can tell you now, they didnt all get permission...not tht its right..fair just or whatever..but its not the worst thing u could do. How big will the cake be? Do sky blue..with white polka dots..with a baby mickey topper or toy.

pumpkin37 Posted 5 Jun 2013 , 2:14am
post #8 of 27

Ai did a a two tier cake with chocolate ears and a pink bow on top. Bottom tier was zebra print. I had black mouse heads with pink bows around the sides of the top tier..fondant pearls between tiers.. the party was minnie themed and her godmother made a minnie style dress for her to wear ...cake, child and party all matched..

jason_kraft Posted 5 Jun 2013 , 2:18am
post #9 of 27

A

Original message sent by mbocharski

What about if I did a cake in the baby blue (she's going for baby Mickey) and decorated it. The. She could add a boughten Mickey Mouse toy or something? Would that be safer? She is only paying for the ingredients since she insisted. Does that make a difference? Thank you all so much!

As long as you don't duplicate copyrighted elements you should be fine. Buying a licensed Mickey Mouse toy and including it as a cake topper is OK since you are not copying Mickey's likeness.

jason_kraft Posted 5 Jun 2013 , 2:22am
post #10 of 27

A

Original message sent by pumpkin37

I did a minnie mouse style cake for my granddaughter..yes I posted to fb. IVE HAD NO ISSUES. I HIGHLY DOUBT DISNEY WOULD SUE A HOME CAKE DECORATOR FOR MAKING A CAKE THT SOME PEOPLE MAY CONSTRUE AS mickey or minnie....too much time and money. Your not selling it commercial ur doing a friend a favor. BTW, i work in the legal community.

These types of cases will never make it to a courtroom. They are almost always settled out of court, since most people have no interest in fighting the Disney legal machine. It is trivially easy to find infringing cakes (especially when they are labeled as such) and it costs very little to send out a C&D.

Telling people that it's OK to do something wrong because you doubt they will get caught is probably not the most helpful advice.

pumpkin37 Posted 5 Jun 2013 , 2:23am
post #11 of 27

AThis question has me thinking. I'M GOING TO PULL COPYRIGHT LAWS AT WORK TOMORROW just to take a really good look into them.

jason_kraft Posted 5 Jun 2013 , 2:28am
post #12 of 27

A

Original message sent by pumpkin37

This question has me thinking. I'M GOING TO PULL COPYRIGHT LAWS AT WORK TOMORROW just to take a really good look into them.

No need to wait, US copyright laws are publicly available online. For example, Title 17 Circular 92 Chapter 5 (Copyright Infringement and Remedies): http://www.copyright.gov/title17/92chap5.html

Did you have a specific question about the law?

kikiandkyle Posted 5 Jun 2013 , 2:49am
post #13 of 27

AYou can make the cake for free, you just can't sell it, so putting it on your business's Facebook page or generally advertising it as having come from your business is where you will have a problem. Telling your friends you made the cake for free might present a different problem ;)

Yes Disney does sell pans and toppers, but they also come with warnings to let you know that you are not allowed to resell them. The issue is with using the copyrighted images and characters in products you are going to sell. Plenty of the cakes you will see online were not made for resale.

IAmPamCakes Posted 5 Jun 2013 , 3:04am
post #14 of 27

ABottom line - copyright infringement is illegal. I refuse to make protected items. I have lost very little business because I explain that I am not willing to risk my business or home for your child's amusement for a couple hours. Once I explain it, the customers are willing to compromise on design. The law is the law. Just because you haven't heard about it doesn't mean it doesn't exist. Ignorance is not always bliss.

jason_kraft Posted 5 Jun 2013 , 3:41am
post #15 of 27

A

Original message sent by IAmPamCakes

Once I explain it, the customers are willing to compromise on design.

And once they try to secure written permission from the copyright owner themselves, they are even more willing to compromise on design.

Drifterv Posted 5 Jun 2013 , 3:45am
post #16 of 27

AIf you were to give credit to the original copyright holder, would it still be infringement?

jason_kraft Posted 5 Jun 2013 , 3:47am
post #17 of 27

A

Original message sent by Drifterv

If you were to give credit to the original copyright holder, would it still be infringement?

Yes, if they did not grant permission to make the copy in question.

mbocharski Posted 5 Jun 2013 , 12:21pm
post #18 of 27

AThank you all so much. My friend decided after talking to her that she wants a baby blue number one decorated and then will purchase a baby Mickey number 1 candle. So, correct me if I'm wrong but its legal to make let's say a tinker bell cake for my daughters birthday because its for myself and free? But it's not okay if I was to sell it,or have someone pay even for the ingredients to make it. Just making sure.

BatterUpCake Posted 5 Jun 2013 , 12:52pm
post #19 of 27

If you do not sell it you can make it. Copyright infringement comes when you profit from the item. I did a Minnie for my grandaughters birthday and doing Tink this year....but this year I actually bought a Dinsney tink as the topper

BatterUpCake Posted 5 Jun 2013 , 1:01pm
post #20 of 27

here is a thread I found... http://www.wilton.com/forums/messageview.cfm?catid=8&threadid=147608 just tell her you cannot accept money for the ingredients

From Cake Boss 4. If I can’t sell products bearing these images, is it ok if I make them for free for my kids or friends and family? This is a trickier question. Trademark law generally is not implicated if there is no use in commerce, i.e., use in connection with a sale or distribution to the general public. But copyright law protects against copying, so copying an image or using it as the basis for a derivative work would violate the owner’s copyrights. Both statutes protect the “fair use” of a trademark or image – which is why Andy Warhol can paint Cambell’s Soup cans without its permission. Such use is artistic, not commercial. However, fair use generally would not enable a cake designer to sell cakes displaying a trademark or an artist’s image without the right’s owner’s permission. Use in the home or as a gift for a friend is much more defensible as fair use. For practical purposes, the rights owners aren’t going to know about such use – or even care. They are much more concerned with widespread use in the open for a profit.

11. Would I stay out of trouble if I made a generic looking cake and purchased a licensed topper, or toy, or edible image to place on the cake or cookie? Probably. In general, a rights owner’s rights end after the first sale is made. So, if you purchased a licensed topper or toy, the licensor generally would have no say in how you used that topper or toy – including if you incorporated it in a cake. It would have already been compensated as part of your purchase of the licensed item.

hbquikcomjamesl Posted 5 Jun 2013 , 4:06pm
post #21 of 27

There are three separate issues involved: copyright, trademark, and plagiarism.

 

Copyright law protects the copyright owner not only against those who would seek to profit unjustly from the work in question, but also from those who would interfere with the owner's right to profit from the work.

 

Trademark law protects the trademark owner not only from those who seek to profit unjustly from a trademark owner's reputation, but also from those whose actions would harm either the reputation itself, or the owner's ability to profit from it.

 

Plagiarism is the act of passing off somebody else's work as one's own. If one uses a public domain work in a way that implies that it is one's own, then it's plagiarism, even though there's no copyright to infringe; conversely, if one uses a work in copyright, without permission, and outside the bounds of fair use, then it's copyright infringement, even if you cite the source to avoid plagiarism.

 

Interestingly, in university coursework, you can even be brought up on charges of academic plagiarism for re-using your own previous work without identifying it as such, although technically, that's not academic plagiarism, but rather academic fraud.

BatterUpCake Posted 5 Jun 2013 , 4:19pm
post #22 of 27

I don't think making a free cake would deprive Disney of any money unless they have gone into the cake decorating business....

jason_kraft Posted 5 Jun 2013 , 4:51pm
post #23 of 27

A

Original message sent by BatterUpCake

I don't think making a free cake would deprive Disney of any money unless they have gone into the cake decorating business....

That could potentially be an argument in your favor if you are sued, but in order to use that argument you would need to hire a lawyer to represent you and face off against Disney's legal team. A counterpoint would be that Disney is in fact in the cake decorating business as they license cake decorations through partners like DecoPac.

BatterUpCake Posted 5 Jun 2013 , 11:17pm
post #24 of 27

plastic cake decorations are not the same as someone wanting a custom modeled cake. If the person wants a specific design that Disney does not offer and you do not charge for it you are not in any way depriving Disney of income.....unless they open a Custom cake shop and someone would choose to purchase from them rather than have a family member make a free cake.....As I said I would never profit off of it only doing it for a friend or family for free. From what I am reading you pretty much safe as long as you do not profit

evatasha Posted 27 Oct 2014 , 9:33am
post #25 of 27

AHi... Want to ask the same question, how decorating disney cake become illegal if we bought their topper, cutter and tin?

dkltll Posted 27 Oct 2014 , 8:43pm
post #26 of 27

Quote:

Originally Posted by evatasha 

Hi... Want to ask the same question, how decorating disney cake become illegal if we bought their topper, cutter and tin?

Just as has been stated, these items usually have a warning them that are for Home Use Only and not to be sold. If you make a generic cake and use a licensed, copyrighted topper on it then you are clear as you are not "copying" their licensed character. If you use their pan or cutters and then sell them you are infringing on their license as you will most definitely be using your talent to copy their material. It is an extremely deep subject!

evatasha Posted 28 Oct 2014 , 10:42am
post #27 of 27

AThanks, but also metioned publish the copyright cake also illegal. And the same time Disney FB ask their customer to share their cake on their FB which everybody can see it. To be honest, this just an outragest! Disney had been in business for ages and I believe they didn't start made disney character cake, yes.. It is inspired by their cartoon character.. They should be more Flexible, as the fact not every moms can bake and make cake for their kids.

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