Ok so I am new to this and want to get something straightened out.

When you replicate a cake from a picture do you need permission from the original creator or at least the creator of the cake in the picture?

Do you only need permission if you are selling the cake?

Example a bride brings you a picture from the web/magize ect and says this is what I want. What do you need to do?

Thanks

Ashley

This is a great question and I'm sure it could be subject of a great debate. I've had debates about this in other situations as well. Some people would say that anything produced by a person is considered intellectual property. However, I believe that unless you have a specific copyright on your product I don't think you can take legal action against someone if they copy your design. I am NOT a copyright lawyer but I do know one and would be happy to ask this question. I would love to hear others opinions on this as well.

Thanks for bringing up the question.

Joanne

Well, I am a lawyer (not currently practicing, but my focus was on IP issues).

A copyright comes into being at the moment of the item's creation. You do NOT have to register it with the US (or any foreign) copyright office. You may choose to register a work with the copyright office--it'll make it easier to enforce your copyright should you go to court--but you are not required to do so to have copyright protection for any original creation.

So it's illegal to make a copy of a cake from a magazine without permission from the copyright owner. Lots of people do it, but it's illegal. You can change the design and create something with the same overall effect and not violate copyright, but you have to add a minimal degree of creativity. And what constitutes enough difference is decided on a case-by-case basis. There's no bright line rule.

You may make a cake from a book with instructions on how to make the cake. That's legal, though I always take care to give credit to the original designer (more of a moral stand rather than a legal requirement, though). Check each individual book, however, to see if they include text limiting recreation of the cakes to noncommercial use.

This has been discussed many times. If you search you should be able to find the posts. : )

Actually, I believe that you cannot copyright a cake design.

You can copy any picture, it is just appropriate to give credit to the original designer, if they in fact are the original....


Stephanie

There are these unwritten rules of CC... lol if you use a cake for inspiration from CC when you post your cake photo give credit where due.... if someone brings you a photo from another website 9 x's outta 10 it'll have the link included at the bottom of the page, I personally would contact the website owner/cake creator and tell them a bride has come to you with their photo of their cake and you're wondering if it'd be ok to use it for inspiration.

I had a potential client email me a photo from Fredd's in Las Vegas and when she got scared away because I asked her what flavor cake she wanted lol she went ahead and made it herself without getting permission from Fredd's. I was waiting for her reply to tell me she wanted me to do the cake before I emailed him and asked for permission to recreate it since the client wanted it identical.

If the cake is from CC I would personally, PM the original creator (even if they got inspiration from someone else pm that person as well) and make sure neither minds you using their idea as inspiration

Yes, what I said is true. A cake falls under the PGS (pictoral, graphical, or sculptural work) section of copyright law. I just posted this information on the cheeseburger cake thread as well. I have a very expensive law degree from a top tier law school and a focus on IP issues to back up my opinion. On what legal precedent are you basing your analysis?

Copyright covers the EXPRESSION, not the IDEA. So you don't have a copyright on "a white three tiered cake with black scrollwork." But you would have a copyright on the exact version of that you create so long as the expression displays a minimum degree of creativity.

Even if you came up with a design ENTIRELY ON YOUR OWN, without ever looking at another picture, if they created the design first, you are still in violation of copyright.

I would say, based on my experience, that the very first person ever to make a cheeseburger cake probably put enough creativity into the expression to get a copyright on the idea. But say hers had a sesame-seed bun, and mine had an onion bun, two layers of beef isntead of one, and the bun was slightly offset, and mine had faux swiss cheese instead of faux american cheese, my EXPRESSION of the idea is different. That would probably be enough change to avoid copyright violation, though, honestly, it's a close call, and all of these claims are decided on a case by case basis. It's like when Justice Potter Stewart tried to explain "hard-core" pornography, or what is obscene, by saying, "I shall not today attempt further to define the kinds of material I understand to be embraced . . . ut I know it when I see it . . . " I can't give you a bright line rule, this much change is legal, this much is not. You just have to try your best to stay on the right side of that flexible line.


Lots of people jaywalk. Does that suddenly make it legal? Lots of people don't work out of legal kitchens. Does that suddenly make it legal? Lots of people ignore intellectual property rights. Copy cake designs. Download music. Does that suddenly make it legal? No. Ignorance of the law is not an excuse. You can still be prosecuted.

You are, of course, free to make the decision to break the law if you want to. I can't stop you. I don't know where you live. I'm not going to turn you in. But copying someone's design is, most definitely, illegal. They do own a copyright on the design, I guarantee you.

interesting. Is it illegal to copy if you are not gaining anything from copying the creation. Say I copy a cake just to see if i can technically pull it off, but I dont make any money off the creation is that still illegal?

Here is another question. If you make a cake that has the coach label or a Louie Vitton Label on it do you need permission from that label? Same with cartoon characters. If I make a scooby doo cake do I need permission for the creator of Scooby Doo?

There is something known as the Fair Use doctrine, which does create a small exception for making copies without getting approval from the copyright holder.

So it's legal. IF:
--you're making the cake for your nonprofit educational purpose, to practice, to see if you have the ability, to hone your skills.
--AND you make no monetary gain (you can't even get paid for materials).
--AND you don't dilute the potential market (that is, give the cake to someone who might otherwise buy the cake from the rightful owner or a baker who would pay for the copyrighted use of the design. Geography doesn't come into play here.)

Then go ahead, you're not violating the copyright.

Licensed images--the coach logo, scooby doo, are covered by Trademark law as well as copyright law, and don't fall under the fair use exception. So technically, yes, you'd be breaking the law making a scooby doo cake just to see if you could do it. Using a licenced Wilton pan is a different matter, Wilton has already negotiated the agreement for you, but you're still not allowed to sell the cake. But is anyone going to know if you eat the evidence? probably not, unless you take a picture and post it on cake central. [/quote]

modthyrth, I'm so glad you posted this, but , it won't matter, most people stick their fingers in their ears and go 'nah neh nah neh nah nee" when they find out they can't do this or that.

I am so happy that I found the mentor that I found, she is helping me build my portfolio with unique ideas that are my own.

The best thing she has done for me was given me a sketch book and a pencil and told me to just draw what inspires me and then we can see how to turn it into cake.

I can't draw so I just stick pics all over the pages..lol but I get to cull ideas and get inspiration to make an unique portfolio of cakes, and cake designs.

there is more I want to say, but I don't want to start a riot here.

Modthyrth, I'm so glad you posted here, but I wish I had seen this a few months ago! I was trying to explain to my computer class the gist of the Fair Use doctrine as it relates to downloading music, copying from websites, etc., and I really ran into a brick wall! I am saving this post so I can hopefully make it a little clearer in next year's class!

And, BTW, I think as creative "cake artists", we should strive to put our own flair on our cakes, even ones from the magazines that brides give to us. Anyone can mass replicate a cake, right? (Isn't that what Wal-Mart does???)

I know this is going to turn into a 9 page thread before long because people interpret the law differently, just as they might a passage from the bible. I am not arguing the point of what is legal and what isn't, but I am curious about dress design. Every year when Paris shows the new line of fashions, designers are doing knock offs the very next day and selling the dresses. I especially remember that with Princess Diana's wedding gown. How is it these people are not sued by the original designer?

A question too about cakes. Many people have designed a cake around Van Goghs painting of Starry Night, including Colette Peters. Now the original artist is dead, so no way to ask his permission. But, is it legal to recreate an exact copy of an artists work in another medium such as cake, ceramic, etc.? And would one have to ask permission of Colette Peters to recreate her cake, when she isn't actually the originator of the design?

Maybe one reason is that it's very expensive to sue someone, so instead of focusing their efforts and profits on trying to keep immitators down ... they'd rather focus on designing the next trend (an edge that will always keep one on top!) Also, sueing across state lines is really expensive, too (travel time for both you & atty). What if someone 500 miles away from you reused your work?

In my opinion, copyrights can serve useful in certain situations, but I've become less and less concerned about copyrighting ... am I really going to sue someone over using one of my ideas to make $50, $250, $500, $1000 bucks? No way, wouldn't be worth the time, money or hassles! Rather focus on building a business on other factors (service, quality, originality, etc.).

Copyrights don't last forever. Eventually, everything under copyright will enter the public domain (like van gogh's works are now). The general rule is that the copyright will last for the lifetime of the creator plus 70 years. There are exceptions and modifications to this basic copyright term. There's a good article about the most recent modifications to the copyright terms here:

http://en.wikipedia.org/wiki/Sonny_Bono_Copyright_Term_Extension_Act

A lot of companies DO get sued when they make duplicates that are too close to the original design. Some designers decide not to protect their copyright and decide not to go after the people duplicating. It's a huge PITA to bring a suit! Lots of money, time, grief, and because it's not a bright-line rule, you can never be perfectly sure you're going to win. What can I say, the system is majorly flawed!

Tscookies--You understand the distinction I was trying to make perfectly.

There are designs I have seen people create on their "own", especially here. I have seen watermarked cakes that I have seen other places. Maybe the colors are different, maybe the scrolls go right instead of left.. and it didnt say "... my inspiration was pulled from.. blah blah"

In my opinion, it would be hard to sue someone for duplicating a CAKE, unless of course, its scooby-doo, ect. However, if you purchase a "cake topper" then you are legal when it comes to cartoon characters.

When I am famous , people can draw inspiration from my cakes.. its not like you can xerox a cake. The only why I would be offended is if a PICTURE of MY work was marketed as their own. Then.. yes. I would be a little upset.

I just wanted to say thank you for all the information on the legal end of cake decorating... it has been most enlightening.

Tscookies and cakeescape you've said everything I wanted to say, thanks for saving my typing fingers.
Oh, modthyrth, also thanks for bringing your legal knowledge to this thread. It was very informative.

Cynita

You guys might find this interesting -- I was an artist long before I took up this hobby. (A hobby that I'm hoping will end up being a business).

I wrote the copywrite people and I asked them once if I could draw a photograph someone else took and sell it. They said NO.

I even explained that I would be painting or drawing the subject and using the photograph as subject matter. They said NO....

Renee