Changing Name For Copyright Reasons?
Business By tootie0809 Updated 10 Mar 2011 , 5:55pm by jason_kraft
I was contacted and warned over four $1.00 downloads (which I paid for). Obviously, some of us have a more narrow moral code. Over the years I have made more money than most, owning my own businesses and conducting them to the letter of the law. I have shared this story before. One day the feds showed up at my door with an order to seize my accounting books. A company that I did business with was being investigated for tax evasion. In my books, they found numerous entries for cash. The other business only reported some of the entries. I ended up as a witness in federal court (along wth other businesses) with my records on a big screen, explaining how I recorded cash. My records were not missing one penny. Every other witnesses did have issues. They weren't prosecuted, but they were turned over to the local IRS office and reported to the state tax office. You never know, possibly through the illegal actions of someone else, when your business may be put under the microscope. My family taught me not to take something that wasn't mine, and I am an example to my children. There is plenty of legal money to be made, even in this recession, if you know how to run a business. Some people will always cheat in business. I don't need to.
I contacted an international, multi million dollar company about using their colors, logo, etc for a cake and they told me that it was very nice I contacted and asked them but they had bigger and better things to worry about. As long as I wasn't mass producing it or selling it/showcasing it in a magazine or large publication they didn't care. And now I make all kinds of desserts for that same company! They are one of my best clients!
This one point has been bothering me that I was sure was wrong information ever since I've been on CC... use of copyrighted material when no fee is charged. So I looked it up. YOU CANNOT COPY A COPYRIGHTED ITEM EVEN FOR FREE!!! If you charge, the courts just award more damages. Also, if you copy an item more than 10 times or receive over $2500.00 for the multiples, the civil suit changes to CRIMINAL UNDER FEDERAL LAW! The only reason you can use the Wilton pans is because they have been AUTHORIZED for home use and a fee has been paid, passed on to you when you buy the pan.
Please look up the law yourself and if you find that this is true, stop telling the world how you do it every day. Unauthorized pictures are a liability too.
Does anyone here seriously think that a designer is more interested in suing a cake decorator who may likely only ever make a single cake with their logo, or would they spend their time/effort/money pursuing someone who was knocking off their product and affecting their bottom line?
Allow me to repeat the part that some seem to be choosing not to listen to: If a company does not pursue ALL violations, they lose the right to pursue ANY violations.
If these people think its all about the money involved in making one cake, they have it SO wrong.
SCP1127, that was a great story and thanks for sharing it!
This one point has been bothering me that I was sure was wrong information ever since I've been on CC... use of copyrighted material when no fee is charged. So I looked it up. YOU CANNOT COPY A COPYRIGHTED ITEM EVEN FOR FREE!!! If you charge, the courts just award more damages. Also, if you copy an item more than 10 times or receive over $2500.00 for the multiples, the civil suit changes to CRIMINAL UNDER FEDERAL LAW! The only reason you can use the Wilton pans is because they have been AUTHORIZED for home use and a fee has been paid, passed on to you when you buy the pan.
Please look up the law yourself and if you find that this is true, stop telling the world how you do it every day. Unauthorized pictures are a liability too.
Wow! Didn't know this. I was under the understanding that if you did it for free (like a cake for your child or mother), it was not a problem! Good to know!
If you notice, I have no pictures, no web site, and no company information on CC. And if you try to look me up, I am in none of the traditional searches. I am in non-food searches. The reason there is no info is because my business is completely my own idea, thought up by me, and deeply researched to find no business doing what I do. I already have an opportunity for a second location and a franchise. I am working with an attorney to protect my investment with a copyrights and a trademarks. I take great offense at people who try to capitalize on other' hard work and think stealing is a good way to conduct business. I was a SAHM and I have a business plan worth protecting. Instead of stealing, why not come up with your own brilliant idea? Then tell us how you would feel if someone stole it.
I'm talking about both. Trademark is a design and a copyright is written. But I think we all know what we are talking about. They are both protected. Edited, copyright is written, but covers the transformation into art, music, or video, etc. So to split hairs, you can't write "Coach" or use the logo.
Does anyone here seriously think that a designer is more interested in suing a cake decorator who may likely only ever make a single cake with their logo, or would they spend their time/effort/money pursuing someone who was knocking off their product and affecting their bottom line?
Allow me to repeat the part that some seem to be choosing not to listen to: If a company does not pursue ALL violations, they lose the right to pursue ANY violations.
I'm afraid you are dead wrong there. If I come up with a brilliant idea that 1,000 other people copy - and I don't have the money to pursue legal action against them, I do not lose the right to MY idea simply because I can't afford to aggressively fight every person who wants to make a buck off of my genius.
Yes, companies DO get to pick and choose who they pursue. If they go after someone knocking off their designs, the knock off artist can TRY to use the defense of "but look at these 10 cakes I found on the internet that are copies too! Why didn't they go after THEM as well?!?" Yeah, right. To which the copyright holder could say "we didn't know about them", or "we gave them permission" or "we didn't view this as an infringement".
The scare tactics and misinformation on this thread are making me giggle. Y'all are taking this a little too seriously. Sure it's possible an overzealous manufacturer/copyright holder might TRY to sue a decorator. POSSIBLE. However, how many decorators would just say that the picture was posted to show their talent, but that that particular cake was actually made for a friend and no money was made.
And to the person who said you cannot copy something for personal use where no money or compensation is exchanged - that's also wrong. Otherwise, Jim Davis would have grounds to go after me because I'm constantly doodling images of Garfield (he and Snoopy were the first characters I learned to draw).
Sure it's possible an overzealous manufacturer/copyright holder might TRY to sue a decorator. POSSIBLE.
These cases almost never make it to the lawsuit stage, since it is much cheaper for the infringing party to pay a fine/license fee and settle than to spend thousands of dollars to defend their infringement in court.
However, how many decorators would just say that the picture was posted to show their talent, but that that particular cake was actually made for a friend and no money was made.
It is legal to use someone else's copyrighted work without permission under the Fair Use doctrine. Simply showing that the use is non-commercial is typically not sufficient to satisfy Fair Use:
http://en.wikipedia.org/wiki/Fair_use
But arguing that infringement is really fair use would have to be done before a judge, and you would need to spend a lot of time and money on your case.
And to the person who said you cannot copy something for personal use where no money or compensation is exchanged - that's also wrong.
US District Court disagrees with you:
http://en.wikipedia.org/wiki/L.A._Times_v._Free_Republic
Fair use is not a cut and dry concept, it is typically argued on a case-by-case basis. It is certainly possible for non-commercial use of copyrighted material without permission to be considered infringement, just as commercial use of copyrighted material can be fair use (for example, parody).
Your doodles of copyrighted characters do not put you at risk for being sued for infringement, since you are not displaying them to the public. But if you post your doodles in an art gallery (even for free) without permission, that's more risky. Same with a cake: if you are making the cake for a small party with close friends and family, and you don't post any pictures of the cake online, you are relatively safe in terms of whether or not you will be caught.
WykdGud, you are so wrong. I do not post incorrect information, or mislead people who come to the business forum to learn more about their business. I have a double major in accounting and economics, continue my education daily, have owned four businesses that I have created over my adult life, am a consultant to my husband's medical practice, and am currently trying to maneuver our other business, real estate land development, through this recession. I am a expert in small business administration with a concentration in cost accounting and marketing.
You may think this information is stupid since it makes you "giggle", but most readers are probably taking what has been shared here by me, IndyDebi... a proven expert in this field, jasonkraft, and other business owners, and re-evaluating how they present themselves. CC members are looking up the law for themselves and taking this discussion as knowledge that will benefit their business in the future.
I could argue this all day if I had the time, however, I do not as I have an infant son and a cake to work on.
Let me just say this in closing: the "holier-than-thou" attitude being displayed here is more than a bit off-putting. To insult anyone's morals because they interpret the law differently than you do (it can be a bit ambiguous and confusing for many), or to insult someone because they are willing to assume a risk you are not is ridiculous.
If anyone in this forum chooses to forego making a cake of a copyrighted character or trademarked image - good for you! However, I choose to assume the risk. Just as I assume a risk when I exceed the speed limit. And if I get caught and fined, well then that's my bad and I will gladly (Ok, grudgingly) accept any punishment the court deems appropriate. But to attack my morals or my character simply because I don't see the harm in putting a designer's name on gumpaste shoe is a bit of a reach.
I'd make the cake and support my family. If I were worried about having a pic on the internet, I'd snap the pic before I put the logo on - or I'd blur it out in the photo with editing software. I emailed a company once about using their characters for a cake I made for my daughter and I wanted to post the pics on the internet (no money was made, but I did such a darn good job I wanted to show it off) and they were so rude and obnoxious in their response, I posted it anyway and sent them a link to it. I never heard anything about it - and that was about 3 years ago.
A.) I have a legal background, however, my curriculum vitae is not subject to CC scrutiny (sorry).
B.) I am not attacking my own morals - that was someone else, I am simply stating what I would do given my interpretation of the law and the risk I am willing to personally assume if I am wrong. If you want to address morals, maybe you could argue with those who would lie about being booked to avoid taking on "problem" customers? Or chastise anyone who overcharges a customer a "PITA fee"? Lying?!? "Stealing" from your customers by overcharging them?!? What would the Veggie Tales say?!? *GASP!!!* (I could care less about either, frankly - to each their own - just making a point about the selective morality displayed here on CC)
C.) If the law were so clear cut and defined, there would be no basis for appeals, nor would attorneys be able to argue both sides of a case. If it were black and white, there would be no argument, no?
Some of y'all really need to chill out a bit. Posting your interpretion of the law is one thing, but to posit yourself an expert in the matter (unless you are a copyright attorney who has experience is defending companies against infringement by bakers) is doing a disservice to the community. I am arguing the matter because I know there is room for interpretion on the matter and that the risks involved are small. Is it possible someone could sue you? Yes! Is it possible they could win? Yes! I have had judges side against me when the law was CLEARLY on my side (as my best friend - who just happens to be a judge - likes to say, "Justice depends on what the judge had for breakfast"). It's a crap shoot.
NO ONE here is any more qualified to speak on this matter than I am (by that, I mean we are all equally qualified - not that I am more qualified). You post your opinions, I post mine. It's called debating the issue. Dragging my "morals" into it and making it personal just shows weakness in your argument. You needn't insult me personally if your argument and facts are strong, right?
I will be glad to post facts in support my own argument later today - but right now I have a little boy who wants to cuddle with his mommy before she heads to work. 
I'm talking about both. Trademark is a design and a copyright is written. But I think we all know what we are talking about. They are both protected. Edited, copyright is written, but covers the transformation into art, music, or video, etc. So to split hairs, you can't write "Coach" or use the logo.
A trademark protects brand names and logos used on goods and services
A copyright protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.
So in your example it would still be covered under trademark.
My example was my own business, where I have both. You are correct that this site deals with mostly trademarks. But since I have been on this site for the last two years, it is referred to as a copyright. Rather than correct so many people, I felt that the message was more important than confusing the issue.
I like to believe that most of just want to do the right thing and be an example to our children. And I refuse to discuss the topic of how to steal someone else's protected work any further.
For the rest of us who would like to continue to "share tips from legal info to management issues" as this category states in its explanation, I hope we can continue to learn productive information from each other.
See this thread about an event planner who did NOT post photos of her use of the Academy's statues on her website but was still sued:
http://cakecentral.com/cake-decorating-ftopict-709152-copyright.html
A quote from the attorney who is in charge of protecting the Academy's intellectual property enforcement is quoted as saying: "The intellectual property laws impose an obligation on owners of intellectual properties to protect their rights or risk losing protection," Quinto says. (Bolding added by indydebi)
See this thread about an event planner who did NOT post photos of her use of the Academy's statues on her website but was still sued:
http://cakecentral.com/cake-decorating-ftopict-709152-copyright.html
To be fair, the event in question involved creating 7-foot tall gold statues, so it probably got some media coverage and/or was highly visible in the community.
Although I'm surprised the planner's liability insurance didn't cover this, since it typically includes protection from infringement suits.
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