Is This Legal?

Business By destiny44 Updated 27 Aug 2007 , 12:43am by alanahodgson

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destiny44 Posted 26 Aug 2007 , 2:31am
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My mom has been making and decorating cakes for friends and family for years. She wants to start her own home business because she is passionate about cake decorating, not to mention, could use some extra income.

For a couple of friends she has taken pictures of wedding cakes from magazines and copied them and she does an excellent job.

Now, I know this is fine as long as you are not selling them, but what about if you are? Is this legal?


8 replies
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SMRturtle Posted 26 Aug 2007 , 3:29am
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I don't know the "rules" with cakes but I do decorative painting for a living and I was taught that if you paint (make) it, it's yours- that being said- I always change certain elements of a design- either floral placement or colors....
Also, to be safe, I would say give credit to the person- (ie: based off a design created by Jane Doe or Jane Doe's cakes). Hope this helps!

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mjulian Posted 26 Aug 2007 , 3:35am
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I have to agree with SMRturtel about the rules. I think that we all get our insperation from somewhere and then we make our own changes or color changes and it some out different. Just make sure credit is put in its place.

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kimberlina25 Posted 26 Aug 2007 , 5:55am
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most of us get inspiration from multiple places (half of the time we don't even remember where we get them from) and put our own spin on things. but if she is copying them detail by detail, i'm not so sure about that. some people do have copyrights on their cakes....

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jlh Posted 26 Aug 2007 , 6:07am
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My husband is an attorney. I just went and asked him about it. He said copyrigthts are for written material. If the person has their cake trademarked, then you can't copy it. If not, then it's open season. This may explain why some people get so touchy about "sharing"their ideas. Once it's out there, it's fair game. One can always say "they thought of it first". Of course, stay away from the character designs, Disney, etc. (but that goes without saying). I agree, it's always best to give credit where due. Good luck to her.

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Monilynn Posted 26 Aug 2007 , 6:15am
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THanks for the info that is very good to know I was worried that the two cakes I am entering into a fair next week they were based off some cakes I have seen before. Thanks for the info.


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Erdica Posted 26 Aug 2007 , 11:28am
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This is great info.

Thanks fo sharing!

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beccakelly Posted 26 Aug 2007 , 3:39pm
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this was brought up a while ago and one of our CC members is an attorney. this is what she said:

Originally Posted by modthyrth

EEEEEEEEE this thread is making my skin crawl! For the record, I am an attorney, I'm currently not practicing but I focused on IP issues. And so many of you are giving such incredibly bad, incredibly wrong information! Not maliciously, I know, but from a very imperfect understanding of copyright law.

If all of you take away only one thing from this post, let this be it:

You do not need to register a copyright with the US copyright office! You own the copyright from the MOMENT OF CREATION. For example, I now own the copyright on that previous sentence from the moment I wrote it. Now, to *enforce* your copyright, it's helpful to register your copyright with the US copyright and trademark office. But it is not required!! Just becasue you can search and not find something on that website does NOT mean that someone else doesn't own the copyright!!! Whomever created a particular design first owns the copyright, not whomever recorded it first. This is not a race-to-record statute.

A copyright covers the expression, not the idea. Is this chick the first one ever to create a hamburger cupcake like that? No way. We can find plenty of earlier instances (many cited here) and so she definitely doesn't own the copyright. She knows enough about copyright law to be dangerous and annoying, but she doesn't understand the nuances. She might make a stink, but she doesn't have a legal basis to stand on.

Originally Posted by modthyrth

TScookies--you've hit upon a central issue. The expression is copyrighted, but the idea is not. So imagine the first person who ever came up with the idea for a hamburger cupcake. She got a copyright for her version, the way she expressed the design. Not the concept of a cupcake that looks like a hamburger. I could make one that has faux swiss cheese instead of fondant american, an onion bun instead of a plain one, two "beef" patties instead of one, and I could skew the bun off center instead of having it straight on top. And that would probably be enough to avoid violating the original creator's copyright. Probably. like I said before, there's no bright line rule. icon_wink.gif

Another example: You can't copyright the idea of a three tier white cake with black scrollwork, but you can have a copyright in the exact way you interpret that idea.

And are copyrights necessary? Super tricky question, and entirely debatable. The law can never move as quickly as technology, so it's always trying to catch up in a clunky, ineffective fashion! It's a seriously flawed system, but it's the one we have to deal with, at least for now.

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alanahodgson Posted 27 Aug 2007 , 12:43am
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I interpreted you question differently. I thought you were asking if it was legal to bake cakes at home and sell them. If that is your question, the answer is yes, unless you are licenced. Not all states licence home bakeries. There is a sticky at the top of this forum that discusses which states do and do not licence home bakeries.

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