As a cake business, how do cake decorators get away with duplicating licensed images? I was always told because of the copywrite laws that you could not duplicate these images yourself on cakes. For instance.I could not make my own Buzz lightyear figure, any Team logos, disney charachers, etc.
I have customers ask me all the time to do these types of cakes and I always turn them down because of the copywrite laws...or I buy licensed edible images when possible (but those cakes obviously are not as nice)
I was told at one point that HOME Bakers can duplicate...but cakes that you make for sale can not. Can anyone out there claify this for me. I would really like to make these for my customers.
You can't sell a cake with a licensed character. If you are making a cake at home for your family then my understanding is that it's OK. That cake is not going outside your home. The Wilton character pans are labeled "for home use only."
At CC we think of home bakers as those licensed for a home kitchen who are selling. In your question I think "home bakers" means literally a mom making a cake for her kid.
So I am correct. If I am selling as a "state licensed home business" to customers I can not duplicate/copy any of these licened images and if I was making just for my family and it was not leaving the house I could. That is what I thought but I see it being done all the time and was not sure how they were getting away with it. Thank you for your reply. I appreciate your information.
That is what I thought but I see it being done all the time and was not sure how they were getting away with it.
It largely depends on the profile of the bakery (i.e. its advertising scope) and the aggressiveness of the copyright holder, not to mention luck. If a large chain of bakeries with national advertising featured cakes with copyrighted Disney characters without permission, they would get in trouble pretty quickly. If a small bakery only makes a few cakes a month and does not advertise beyond its web site, the chances of getting caught are reduced.
However, the risk for a small bakery is much greater, because it would be more difficult to absorb the penalties -- anywhere from $200 - $150,000 per infringement plus legal fees. If there is no LLC the owner of the small bakery could have their personal assets (including their home) at risk, since I doubt liability insurance would cover losses due to copyright infringement (but I could be wrong).
EDIT: It looks like liability insurance does tend to provide coverage for "pure" copyright infringement (see link below) when there is no preexisting contract. YMMV though.
http://www.loeb.com/liabilityinsurancecoveragecopyrightinfringement/
So I am correct. If I am selling as a "state licensed home business" to customers I can not duplicate/copy any of these licened images and if I was making just for my family and it was not leaving the house I could. That is what I thought but I see it being done all the time and was not sure how they were getting away with it. Thank you for your reply. I appreciate your information.
I spoke with someone in the copyright office about this very issue a while back. Reproducing a copyrighted image without permission - whether you are getting paid for it or NOT - is still considered copyright infringement.
When Wilton character pans are used, when you buy the pan, you are purchasing the right to use the pan for home use, so you do not need to contact the copyright holder for permission. However, any other images you create that are someone else's creation/design would be copyright infringement. But, as the man from the copyright office said to me on the phone: "if you are making it for your own family, how would they know?" - that's why some people think it is OK to do...
on browen weber's site, who is probably in the upper echelon of high profile bakers, she says she'll make 'inspired by' characters, which i take to mean she changes just enough of it to avoid any hassle. while i don't have a bakery (yet), we do have a trophy shop and do some shirts on the side, and every now and then we have this issue. my personal opinion of it is as long as you do only a piece or two, then it's advertising (not to mention if you don't do it, then the copyright owner still gets nothing). i understand their position, but it's a lose/lose/lose for everyone... unless you purchase the license or use licensed material (which is usually pretty generic). don't get me wrong, i still don't use licensed material, just saying my opinion is restrictions could be loosened up to benefit everyone.
while not specific to the decorative end of baking, there is just enough legal precedent to make certain copyright matters a gray area. for example, using characters in satire is absolutely protected. several years ago a judge ruled in favour of an artist for using barbies in uncompromising settings. sure, mattel wasn't happy. my understanding is that in general a copyright can be an expensive pain to enforce if there's an honest question about the purpose of 'infringing.' if you get caught using a copyright, you'd first receive a 'cease and desist' order and that's typically the end of it. having an LLC is just smart business to being with, but it protects your business from absolute ruin in a lot of cases by limiting the damages ('limited liability company'). and, honestly, disney doesn't want to take you to court, they just want to protect themselves. in the real world, no small fry gets hit with these ridiculous fines that *i've* ever heard of, unless they refuse to disobey a cease and desist of obvious infringement. that's not to say you wouldn't be the person they decide to make an example out of.
in the end, there's what the copyright office tells you and there is some legal precedent on certain issues that makes some things murky at best. what's likely is by the time you're served with a cease and desist you've made hundreds of the items in question, so you stop. the copyright cops aren't going to break your door down in the middle of the night. if you persist, you can really screw yourself up. they will take you down, but you force them to do so by that point.
the best bet is not to do it, but if you do then find out how much has to be changed to protect yourself. but, by the time you sit down to design a relatively legal rip-off, you've got more time in it than anything else and your profit margin is shot, your product is suspect, and now you're tripping into some moral areas as far as some customers are concerned. best idea is just to say you can't do it for legal reasons and let them come up with a Plan B. ...or buy the license which can be several thousands of dollars depending on what it is. (i'm in ohio, and as memory serves, buying the rights to use Ohio State University logos was about $800 many years ago. someone feel free to correct me if i'm wrong, as i might not remember the exact amount and i passed on getting one.)
Does this apply for the brand name cakes as well? What about a Tiffany box wedding cake or a sports themed grooms cake?
This most definitely applies to any trademarked brand name or sports team logo, but you can still make a cake that looks like a Tiffany box or a generic football cake in the team's colors as long as you don't use trademarked names or logos.
For example am I not supposed to be taking orders in relation to the teams for the Superbowl?
You can make a cake that says "Go Packers" or "Go Steelers" in the team's colors, but you can't use either team's logo, the super bowl logo, or the NFL logo without permission.
from this website: http://balloonhq.com/faq/twister_business.html#copyright
I pulled this quote:
Anyway, I do know that when I used to advertise as the purple dinosaur (at no time did I ever elude to BARNEY) the Lyons company wrote me and told me I was in violation of their copyright and were VERY nasty about it. They said if the character could even be construed as Barney in any shape or form, I was in violation.
And I share a story I've told a few times on here..... I had a neighbor who worked for Jim Davis, creator of Garfield. Someone thought if he drew Garfield in blue, that was changed "enough" to get past the copyright violation. Mr. Davis, who is very generous in giving permission to use his images but also very protective of his images, took the man to court and the judge convinced the blue garfield guy that his thinking was all wrong. 
What I've been told (by no one in authority) is that if you make a train cake and someone looks at it and says "Thomas the Train!", no matter what color or how many changes you made to it, then its close enough to be a copyright violation.
Does this apply for the brand name cakes as well? What about a Tiffany box wedding cake or a sports themed grooms cake?
This most definitely applies to any trademarked brand name or sports team logo, but you can still make a cake that looks like a Tiffany box or a generic football cake in the team's colors as long as you don't use trademarked names or logos.
For example am I not supposed to be taking orders in relation to the teams for the Superbowl?
You can make a cake that says "Go Packers" or "Go Steelers" in the team's colors, but you can't use either team's logo, the super bowl logo, or the NFL logo without permission.
How would one obtain permission? Are there restrictions as to how to use them and does it cost any money to obtain licensing?
When I have a groom who wants a college or sports team logo, I require the groom to contact the PR department and ask for a one use permission. They have always gotten the permission. If I ask the team wants $.
Otherwise, yes licensing costs lots of $$.
Thank you all for your comments on this subject. All the information has been very helpful! I will continue to do my business like I have and refuse to do any of these images due to legal issues unless the client can give me written premission as a one time use to do so. Thank you all again for helping me clarify this issue.
What I tell customers is that I can do a cake inspired by xxx but I cannot recreate the image. We can use toys or something if they want the image. Someone came in wanting a cake of Jessie from Toy Story for her daughter. Went through the process and created a cake inspired by Jessie. The cake looked like denim, I used cowprint for a ruffle around the bottom and covered with scalloped yellow with the red trim from her shirt. The little girl LOVED it and I was safe and legal. One lady got a little snippy with me yesterday because I wouldn't create some character, maybe Dora, out of modeling chocolate or even draw a picture of her face. Fine with me, I run my business, not her.
I am soooo glad I found this post! I'm just starting to accept money for my cakes and I've been trying to get answers to these very questions. I made an amazing Mickey Mouse face cake for a friend's son's birthday. The cake was my gift to him, so I didn't take any money for it, but I did post it on my web site. Anyone know if this is still a copyright infringement? I'd hate to have to take it down as it does show an example of my attention to detail - that could bring in paying orders down the line. Along the same lines, I'm making a Coach purse cake for a friend in a couple of weeks (not being paid for it) - Can I not post that on my web site either? Any responses would be greatly appreciated!!
I made an amazing Mickey Mouse face cake for a friend's son's birthday. The cake was my gift to him, so I didn't take any money for it, but I did post it on my web site. Anyone know if this is still a copyright infringement?
Unfortunately both the Mickey Mouse and the Coach cakes are infringing unless you have permission from the copyright owner, so you'll want to take down the Mickey Mouse picture ASAP.
I made an amazing Mickey Mouse face cake for a friend's son's birthday. The cake was my gift to him, so I didn't take any money for it, but I did post it on my web site. Anyone know if this is still a copyright infringement?
Unfortunately both the Mickey Mouse and the Coach cakes are infringing unless you have permission from the copyright owner, so you'll want to take down the Mickey Mouse picture ASAP.
That makes me so sad! I'll take it down. Thank you for your quick response.
After reading these posts, I am thinking about clip art. Does anyone know if this affects the free clip art images that you can get on the internet? Obviously, someone created those characters as well.
Some "clip art" is copyrighted so you can't even right-click on them - I would assume those ones shouldn't be used. I'm interested in hearing other's responses on this question too. Although you also have to think, "what are the chances that this clip art artist is going to see my cake?" lol
You should assume that any clip art you find on the internet (regardless of right-click restrictions) is copyrighted unless it specifically mentions that it is in the public domain, in which case you are free to use it. For a copyrighted image you would need to contact the copyright owner to request permission for commercial use of the image, a royalty payment is often required as well.
The copyright for much of the clip art you find online will be owned or managed by clearinghouse companies like Getty Images or Shutterstock, not individual artists.
jordana 44 and jason_kraft are absolutely correct. However, there are thousands of free clip art pictures on the web that you can copy. I do a Google search for "free clip art" (and the kind I'm looking for, e.g., elephant) and double-check to make sure it's free (and not watermarked) before I copy it.
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