How To Get Around Copyright Laws?
Business By FerretDeprived Updated 7 Nov 2005 , 1:21am by RaRaRobyn
I know that several bakeries in my area will not copy partyware - whether or not it's Disney, Mattel, generic baby shower - nothing. Years ago we could take a napkin or cake plate and have the image "copied" onto a cake. This was usually done via airbrush or gels. Then 'poof' one day they say they can't do it anymore. At that time (about 15 years ago) several people started coming to me to make these cakes. Back then, Aerial was big and I would do her in gels. I made her so often I started freehanding her. These cakes were done for friends and family - they insisted upon paying me. I always felt funny charging them. When I stopped doing cakes altogether - yes there was a time I had burn out - I had a lot of upset people because they could not get cakes with the gel pics they wanted.
Needless to say, now that my daughter is here I have gotten back into baking. And now that she is in school (pre-K) I am having fun making stuff for her class. Cookies are my big thing now. I grew up with a mom baking all the time and cookies were seasonal (Christmas). So cookies are probably my favorite - plus the occasional big cake for family bdays and weddings.
Copyright and trademark issues are generally so intertwined, that it requires a lawyer to untangle the skeins.
To quote various sources on the Internet:
The issue with the cakes is generally a trademark issue, not a copyright issue.
Trademarks must be enforced or they risk becoming generic, and not protected. Once a company allows people to use an image or trademark without permission, it can quickly slip into the public domain. If they allow this to happen, they lose all control over that image forever.
In trademark law, if a term becomes common vernacular, the company holding the trademark loses the trademark. Aspirin was a trademark, but it became the generic term for that chemical chain pain killer. Lycra was almost a generic term, but the trademark holder is in the middle of a world-wide crack down.
Brand protection by companies, businesses and individuals is the major reason why they pursue infrigements in the courts. AND do not be mistaken in thinking that they do not. Detection is not too difficult considering how much information floats around - word-of-mouth, newspapers, advertising, internet etc .
Copying a particular image of a character violates copyright eg reselling character pans, but original creations eg free-hand frozen buttercreams transfers, using that character is violating the trademark to sell cakes.
If a "character" becomes generic, exclusive rights can no longer be legally enforced. This can happen where the trademark owner does not maintain or enforce its proprietary rights eg. by pursuing infringement action. "Character" trademarks must be actively used in order to maintain strong legal rights. By comparison, a copyright or patent holder does not necessarily need to use their creation in order to maintain their rights.
A trademark owner who does not police the use of its trademark by preventing third parties usage of the "character" in their creative copies of the "character", risks loosing control of their product.
Copyright and trademarks indicate ownership and prevents others from using the work in a manner not intended by the creator/owner. They allow you to receive credit and monetary compensation.
One cannot make a likeness of any copyrighted figure in any manner, whatsoever. Taking a character without a license and using it to create another work or product is also an infringement.
Some people argue that edible images get around this infringement. The premade frosting sheets that you purchase already have the characters on them. The argument runs the manufacturer of the edible sheets has already paid for the rights to use/sell them to the purchaser [decorator]. BUT if you re-sell them to your cake-buying customer, you are infringing copyright, because YOU have not purchased the licence to re-sell the image.
I wouldn't like to be the one in the legal "test case" on that one.
Note: It is not legal to copy images from the Internet: From January 1, 1978, any work expressed in paper or electronic form is automatically copyrighted for the life of the author plus 70 years. Registration is not required.
Wilton pans are for the homemaker not for re-sale. Cakes made in their character pans cannot be re-sold. Because it is a specific image, it is a copyright violation.
CONSIDER this point:
how do you know if some legal/business employees of these companies are not "on-line" checking out forums and boards right now ??
Most contributors to the Internet are not knowledgeable about copyright/trademarks and how it affects what they produce/have produced........haven't given it a thought most of the time .....
So you want to (must??) sell cakes based on copyrighted characters. What do you do?
Let's take a look at the following linked page and see how this cake decorator handles the issue:
Sometimes people ask us to draw popular characters or make cakes in the shape of these characters. Unless it is something that we have already bought the right to copy such, as Looney Tunes characters, it is against Copyright laws for us to copy such designs. There have been bakeries that were fined and/or sued for making cakes in the images of copyrighted designs. These fines for copyright infringement run into thousands of dollars. That is the reason you see so many kits with figurines on this page. We are allowed legally to buy kits of said copyrighted characters or [buy] edible images or to use figurines that customers bring in to us. We are NOT allowed to make cakes in the shape of copyrighted characters or to draw them. Please do not ask us to break the law in order to do your cake. We will NOT do it.
On the page above, there are pictures of many cakes which would be classified as "character" cakes. However you'll note these cakes are all "backgrounds" for purchased figurines.
I think this is a very wise way of handling the issue.
As has well been detailed by auzzi above, it's simply not legal to make a copy of a character owned by someone else, whether that someone else is Joe Average or Disney, without their permission (which usually include a fee and distinct restrictions). To do so, and to try to "get around copyrights" is illegal and the fines can be hefty, up to $150,000.
I dunno about you, but I don't have $150,000 to give away just so a few customers can have a character cake. Even if you don't get the max fine, it would be a very real possibility that getting caught and fines would cause you to lose your cake business, if not your house and car. Frankly, it's cheaper and a lot less risky to simply say "Sorry, we don't do that. However, we can put some Spongebob figurines on a cake decorated like an underwater scene."
Another point to consider is that by selling a certain character cake without getting a license to do so doesn't just infringe on the owner's rights to control their character. Sure, the BigCorp has Big Bucks and your little $30 sale isn't much to them. HOWEVER, it potentially steals business away from other bakers who went the legal route and got the proper license to make cakes with that character's image. If you're selling a Looney Toons character, you're also stealing from MyraJean. She's not some multi-billion dollar company, she's just a busy baker, like you.
If you'd played by the rules and shelled out your hard-earned cash for a proper license to legally sell a character cake and found out Jane's Home Cakery down the way was selling that character without a license (and likely for less since she doesn't have to cover the cost of said license) you'd probably get pretty cheesed off. And might call the authorities on it. It's not simply going to be the BigCorp's lawyers checking the little bakeries for this. Although they very likely do.
Are there arguments (and probably good ones) as to why the copyright/trademark laws aren't fair or logical in the case of characters on cakes? You bet there are. And we could probably have a huge long discussion on what the downsides and failures of copyright/trademark laws are in this regard.
HOWEVER, this doesn't in the slightest change the current laws or make selling copyright character cakes legal. Until there is a change in those laws, it's still illegal to do it. And there is still the chance of getting hit with a huge fine, you'd still be stealing customers from those bakers who DO follow the rules and promoting the idea, possibly to your own kids, that some theft is OK if what you're stealing is cute and popular and makes you a few bucks.
Even coloring book pages are have copywrites.
There really is no way to get around the law, as long as the character is "recognizable" it's still an infringement of the law.
In other words..if you made Mickey Mouse purple instead of black..or a Barney Yellow instead of purple..but you could still "recognize" the character...you could get sued.
and as far as using the Wilton Character pans to sell cakes...STRICTLY FORBIDEN. They are for your personal use only. You cannot make a character cake...ei..ELMO..and sell it
I know that a lot of us don't know about copy write laws, but when they come after you, ignorance of the law is no excuse.
The only one's that I've heard that go after the little guy in a hard core kinda way is Disney! They have even sued DAY CARE CENTERS over painting the disney characters on their walls without permission!
Are you kidding me?? HOW ridiculous. Why does Wilton carry such an abundance of Character pans if they are meant for "consumer use only"
I'll be darned if I let them come after me for making a Strawberry Shortcake cake. For goodness sakes, why would Wilton show you how to make such lavishly decorated cakes using the character cake pans if they're intended for home use only. Please, they can kiss mine.
The lady who taught my Wilton Course 1 told us the first day of our class to NEVER sell a licensed character cake. She personally knows a lady who had sold some, and lo and behold, a representative of the company contacted her and told her if she was ever caught again they would definitely sue. Sure made me stop and think!
Wow...I am really glad I read this thread. I had no idea about the wilton pans or even drawing a character on your cake. I know a few popular bakeries in my area that DO sell the Wilton character cakes. I actually called one place just to see how much they charged.
I guess I am very guilty of a lot of this stuff...I think I need to be more aware of the copyright laws in the future. Some people just don't think about this stuff! 
Thanks for all the helpful information. 
traci
Are you kidding me?? HOW ridiculous. Why does Wilton carry such an abundance of Character pans if they are meant for "consumer use only"
I don't get the logic here. How is the "abundance" of character designs related to what they can and cannot be used for? Whether it's one character or 100, they're still meant for home use. How is that aspect changed by the quantity?
I'll be darned if I let them come after me for making a Strawberry Shortcake cake. For goodness sakes, why would Wilton show you how to make such lavishly decorated cakes using the character cake pans if they're intended for home use only.
Again I can't follow how one leads to the other. Showing a person how to decorate a cake doesn't make it intended for commercial use. Since clearly thousands and thousands of regular moms have purchased and made these cakes for several decades now and, presumably, decorated them following such instructions, "lavishly decorating" the cakes is not limited to professional cake makers.
Robyn, you'll need to explain how either of these points turn into "you are allowed to sell these" because I really don't understand how it is you're making that connection.
Please, they can kiss mine.
More likely they will slap it - 
- with a fine of up to $150,000.
Well, number one I wrote that post at about 1130 pm last night, so I apaologize if my logic was out of order.
My point is, I think the rule is ridiculous. I bake in my kitchen and probably contribute to a whopping 11% of our yearly income doing so. I, to be honest, have always hated doing character pans either way. I prefer to use my creativity, because I'm more proud of my work.
However, my grandmother used character pans for God knows how long, and that was the majority of her birthday business. She never had a lavish lifestyle, and she lived off that and her catering business. Now, I would have been angered to no end had a Disney Rep. come to her door and say that they were suing her for making 101Dalmations. I understand the need to have the law, but I just don't understand it. Yes, they lose out on royalties, but a home baker would lose even more that way.
So, my 2 cents is that the law obviously needs to exist, I just think its a poorly thought out law.
I didn't mean to offend anybody..it was just my way of saying I disagree, which is what I'm entitled to do. I didn't mean for it to be broken down and spit back out. And yes, they can still kiss mine..because I don't USE the character pans, so they can't "slap it" with a fine of anything.
Frankly, it's cheaper and a lot less risky to simply say "Sorry, we don't do that. However, we can put some Spongebob figurines on a cake decorated like an underwater scene."
Another point to consider is that by selling a certain character cake without getting a license to do so doesn't just infringe on the owner's rights to control their character. Sure, the BigCorp has Big Bucks and your little $30 sale isn't much to them. HOWEVER, it potentially steals business away from other bakers who went the legal route and got the proper license to make cakes with that character's image. If you're selling a Looney Toons character, you're also stealing from MyraJean. She's not some multi-billion dollar company, she's just a busy baker, like you.
If you'd played by the rules and shelled out your hard-earned cash for a proper license to legally sell a character cake and found out Jane's Home Cakery down the way was selling that character without a license (and likely for less since she doesn't have to cover the cost of said license) you'd probably get pretty cheesed off. And might call the authorities on it. It's not simply going to be the BigCorp's lawyers checking the little bakeries for this. Although they very likely do.
Didn't read that post. Kinda makes sense now. But still, my arguement is that its petty to make it a long process to get the rights to these cakes. It shouldn't have to be that way. So as much as I see why its unfair to make these cakes illegally, when someone else paid the big bucks to have to rights, the whole situation should not exist and we should be able to all bake Scooby Doo!
Now, can I make a character pan for my friends? Or is that still bad unless its in my household? I guess I just don't get it. Is it only id you're making money off it?
Well, number one I wrote that post at about 1130 pm last night, so I apaologize if my logic was out of order.
My point is, I think the rule is ridiculous. I bake in my kitchen and probably contribute to a whopping 11% of our yearly income doing so. I, to be honest, have always hated doing character pans either way. I prefer to use my creativity, because I'm more proud of my work.
However, my grandmother used character pans for God knows how long, and that was the majority of her birthday business. She never had a lavish lifestyle, and she lived off that and her catering business. Now, I would have been angered to no end had a Disney Rep. come to her door and say that they were suing her for making 101Dalmations. I understand the need to have the law, but I just don't understand it. Yes, they lose out on royalties, but a home baker would lose even more that way.
So, my 2 cents is that the law obviously needs to exist, I just think its a poorly thought out law.
I didn't mean to offend anybody..it was just my way of saying I disagree, which is what I'm entitled to do. I didn't mean for it to be broken down and spit back out. And yes, they can still kiss mine..because I don't USE the character pans, so they can't "slap it" with a fine of anything.
Thanks for the explanation and yes, the law may not be terribly the most fair and quite one-sided in some aspects, but it's still what we must go by because, well, it's the law, you know? : shrug:
And they could have send a terse letter to your gran and had the legal right to go further if they chose, that's how it goes when you own something.
You sure can disagree and I dare say darn well should if you see something that isn't right. If people did that more often... well, that's another topic altogether. But don't get offended if someone asks you to detail your thoughts if they aren't clear, that's just asking for an explanation, part of discussion. I really couldn't see how 'number of designs' turned into 'allowed to sell'.
11:30 pm posting explains a lot, though 
There's something to be said for morning coffee 
I think the copyright issue, from a small bakery stand point, is more of a moral issue. Are you willing to sacrifice your values of honesty and integrity to make a few dollars?
Quote by @%username% on %date%
%body%