Is This Treading Too Lightly??? Copyright/trademark Question
Business By brenda549 Updated 6 Jun 2012 , 11:54pm by CreativeCakesbyMichelle
I do my best to avoid copyright/trademark issues with my customers. If I question it, I do not do it. However, I wanted to get some business opinions on this particular cake since this is for family.
This is a cake my niece wants for her birthday. Not very original with tons of the same cake being done all over google, but she is only seven and has her heart set on it. I know purchasing the Barbie should make it okay, but the wings are a very, very loose replication of the wings of Barbie Mariposa.
Here is what she looks like in the movie:
Here is the doll:
So my question for those that try to abide by copyright/trademark limitations, would you or would you not? If not, what changes would you make?
No infringement there.
That's a stylized butterfly wing and looks nothing like the Barbie wings.
But, truth is, the Barbie wings are just generic Monarch-type butterfly wing patterns done in pinks & purples.
Don't think anyone can copyright a pattern found so commonly in nature.
JMHO
Rae
Just a reminder...
Making the cake for family and not being sold have nothing to do with copyright infringement. It is still illegal. The courts do look at compensation to determine the amount of the settlement.
At first glance, it looks like an intentional duplicate to me and I don't even know the movie. No matter how generic, you cannot copy a protected item. The cake and the picture from the movie are obviously the same down to the design of the skirt.
At first glance, it looks like an intentional duplicate to me and I don't even know the movie. No matter how generic, you cannot copy a protected item.
Copyright only protects original creative works, if a work is sufficiently generic it is not copyrightable. To me this looks like generic purple butterfly wings on a doll, but of course the only opinion that really matters is the copyright owner's.
Agreed that whether the cake is sold or not makes no difference, unless the copyright owner is willing to grant permission for non-commercial use only.
I understand that non-commercial use has nothing to do with copyright/trademark infringement. I only mentioned it to explain why I am actually delving deeper into this. I would rather find the answers researching this cake for a family member than stringing a customer along while I take time to research.
Can Mattel copyright Monarch butterfly wings? I will not be recreating Barbie. I would only be creating the butterfly wings. Does placing Barbie on top of butterfly wings change the way it is viewed by copyright laws because it then creates Barbie Mariposa?
I just found Mattel's contact information. I will submit this for non-commercial and commercial use and see what comes back.
I would rather find the answers researching this cake for a family member than stringing a customer along while I take time to research.
One way of handling this situation with paying customers is requiring the customer to provide written permission from the copyright owner, this way the burden is on the customer and they get mad at the copyright owner instead of you if they say no.
Can Mattel copyright Monarch butterfly wings? I will not be recreating Barbie. I would only be creating the butterfly wings. Does placing Barbie on top of butterfly wings change the way it is viewed by copyright laws because it then creates Barbie Mariposa?
The way I see it, if you traced the exact design of the wings from the doll or a frame in the movie, it would be more likely to be considered infringing, but the cake pictured is probably different enough.
This is a gift for your niece.
Make the cake and don't worry about it.
Seriously. 
Well, then, I guess Mattel must have infringed on the skirt of tinkerbell because I have seen that skirt on several brands, not just Barbie Mariposa. And I think I have seen some butterflies very similar to your cake, also.... save for the hearts....JK. I think you would be safe, I am not a lawyer, though. 
They don't look alike to me at all. Just same colors, and you can't copyright a Monarch's color scheme.
Also, if I was worried about copyright infringement, I would not be posting something on a public board that you may not be able to erase. Once you write something like "I know purchasing the Barbie should make it okay, but the wings are a very, very loose replication of the wings of Barbie Mariposa", it's out there forever and probably can be used against you.
They don't look alike to me at all. Just same colors, and you can't copyright a Monarch's color scheme.
Also, if I was worried about copyright infringement, I would not be posting something on a public board that you may not be able to erase. Once you write something like "I know purchasing the Barbie should make it okay, but the wings are a very, very loose replication of the wings of Barbie Mariposa", it's out there forever and probably can be used against you.
Oh brother. Way to take it to the extreme. Perhaps all butterfly wings need to be copyrighted! Has anyone checked with the Monarch's attorney?
Make your cake. It's very generic and I doubt seriously the butterfly police will be watching this board.
They don't look alike to me at all. Just same colors, and you can't copyright a Monarch's color scheme.
Also, if I was worried about copyright infringement, I would not be posting something on a public board that you may not be able to erase. Once you write something like "I know purchasing the Barbie should make it okay, but the wings are a very, very loose replication of the wings of Barbie Mariposa", it's out there forever and probably can be used against you.
Oh brother. Way to take it to the extreme. Perhaps all butterfly wings need to be copyrighted! Has anyone checked with the Monarch's attorney?
Make your cake. It's very generic and I doubt seriously the butterfly police will be watching this board.
If your 'oh brother' was to me, I don't get it. I certainly don't think she will get into trouble for copying butterfly wings. What I am saying is if I had (and I said I as in ME) a copyright question, I wouldn't put it out on a public forum where my words could be used against me. And the remark 'you can't copyright a Monarch's color scheme' wasn't meant to refer to the OP as 'you'. I meant "NO ONE" can copyright a Monarch's color scheme, therefore the OP should do what she wants and feel safe.
[quote="vtcake"][quote="carmijok"]
If your 'oh brother' was to me, I don't get it. I certainly don't think she will get into trouble for copying butterfly wings. What I am saying is if I had (and I said I as in ME) a copyright question, I wouldn't put it out on a public forum where my words could be used against me. And the remark 'you can't copyright a Monarch's color scheme' wasn't meant to refer to the OP as 'you'. I meant "NO ONE" can copyright a Monarch's color scheme, therefore the OP should do what she wants and feel safe.
It wasn't aimed at you entirely...I'm saying everyone needs to lighten up on this post. Your comment that what she said could be 'used against her' was, I thought, a bit much. Just because the OP mentioned her 'loose interpretation of Barbie Maraposa wings' in a public forum does not mean the food police would seize her laptop. (I exaggerate but not much).
And where else could she turn to for information regarding this subject if not a cake forum? Blakescakes and kakeladi both had good and correct answers to her question. It's the ones that nit-pick this thing to death that I get tired of.
I'm really amazed at how everyone's so afraid of being sued that the mere thought of butterfly wings on a cake could spark a discussion of copyright infringement at all. Or the misinformation and scare tactics that go into these posts when you're talking about home bakers who bake the occasional Barbie cake for their family!
Someone show me where a mom got sued and had to pay a fine because she baked a character cake for her kid...then maybe I'll quit rolling my eyes. That's all! And to the OP...go for it. It's a cool cake.
My post was concerning the fact that it is so similar. If you are really worried about it, why not take out all of the if's and just make it less similar.
If I had known the movie and then had seen this cake, I would have been able to know exactly who the character was supposed to be.
We can debate, and of course, this is one of the more loosely adaptations, but why not just make it a little more different and get a good night's sleep. The OP had enough concern that she started a thread. A few more adjustments and there is no grey area left.
Tinkerbell is not copyrighted/trademarked. But Disney's is. Just like the Mad Hatter's hat.
I'm with carmijok...I cannot even believe that this would even be an issue! There are so many more things to worry about in life! My eyes are rolling as well!
Get used to it. That's CC- Always making a mountain out of a molehill. 
I agree, it is absurd that we have to worry about such things, and this is a great place to come for feedback and information.
Maybe I've watched too many Law & Order shows....they always are able to track down incriminating things people have posted on the internet!
Maybe I've watched too many Law & Order shows....they always are able to track down incriminating things people have posted on the internet!
In the old days the detective shows with bad writing always depended on the perpetrator admitting what they did.
Wouldn't the whole copyright issue be avoided if the OP is using an actual Barbie doll for the cake and the image in question is Barbie Mariposa? The same as if you purchased Spongebob figures, Spiderman figures, etc., to put on a cake? That's how I understand it based on what I've read but feel free to correct me if I'm wrong. Or does it make a difference whether she uses a different Barbie she purchased (say Barbie in a swimsuit, ballerina Barbie, teacher Barbie, etc.) and makes the fondant clothing as opposed to using the purchased fully dressed actual Barbie Mariposa since they are all made by Mattel?
Wouldn't the whole copyright issue be avoided if the OP is using an actual Barbie doll for the cake and the image in question is Barbie Mariposa? The same as if you purchased Spongebob figures, Spiderman figures, etc., to put on a cake? That's how I understand it based on what I've read but feel free to correct me if I'm wrong.
You're correct that because the cake uses an actual doll there is no copyright issue in that respect, if the cake had a picture of Barbie created in BC or fondant that would be infringement if permission was not granted.
The question here is about the wings. You can't copyright generic butterfly wings, but the exact design from the doll or the movie would still be protected. The consensus here is that the wings on the cake pictured are different enough from Mattel's wing design to be safe.
Wouldn't the whole copyright issue be avoided if the OP is using an actual Barbie doll for the cake and the image in question is Barbie Mariposa? The same as if you purchased Spongebob figures, Spiderman figures, etc., to put on a cake? That's how I understand it based on what I've read but feel free to correct me if I'm wrong.
You're correct that because the cake uses an actual doll there is no copyright issue in that respect, if the cake had a picture of Barbie created in BC or fondant that would be infringement if permission was not granted.
The question here is about the wings. You can't copyright generic butterfly wings, but the exact design from the doll or the movie would still be protected. The consensus here is that the wings on the cake pictured are different enough from Mattel's wing design to be safe.
Ok, that makes sense. Thanks for clarifying!
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