Today’s Question: What’s the deal with copyright infringement regarding Disney, Nickelodeon, etc.? I’m just a small home baker and it will kill my business if I can’t make fondant figures.
It’s like a caking urban legend — the tale of the little home baker being served a cease and desist order or being sued for making Elsa from Frozen. Does it really happen? Can it happen? We’re all a bit confused about the truth behind copyright infringement and the use of trademarked characters and brand logos. What is OK? What can we safely do? What are the legal issues surrounding using these images and likenesses? (See? So many questions!) This debate is HOT right now in the caking community and there's a lot of misinformation out there.
Can you legally use a design (image, character, logo, etc.) in your cakes that someone else created?” No. Not legally. I know. That was some tough love right there. But I would be leading you astray if I told you to keep making Elsa cakes in a cloud of powdered sugar bliss. The cold, hard fact is that the creators of these works are protected in a number of ways by the law, and that protection includes derivative works — cakes that have one or two details tweaked so as not be exact replicas. Still an infringement. There are many court cases documenting infringements, and in ways subtler than cake and cookie creation.
“But!" you cry. "Cinderella was created way before Disney ever got their money-grubbing hands on her, so she’s still fair game, right?” Let’s be honest: Are you going to make a replica of Charles Perrault’s 1697 Cinderella, or Disney’s? Exactly. You and the 647,992 other cake decorators around the world are going to recreate Disney’s iconic interpretation of the tale (leaving 4 cakers paying tribute to Perrault’s Cendrillon, and kudos to them.) Here again the answer is “No. It’s not legal.” “But lots of other decorators do it and they're fine," you argue. "Why should I worry?” If your friends jumped off a bridge would you jump, too? It’s really that simple. Just because they haven’t been caught and served cease and desist orders or, worse, hit with a lawsuit, doesn’t make it any more legal for your business.
“Well, what if I make a basic cake and add little plastic figures from the toy store to the top?” you ask. Alright. Now you’re getting clever. But it’s still a gray area. According to some copyright and trademark lawyers, the rights of the creator end when a purchase is made of licensed products, like figurines. How they are used after purchase is no longer under control of the creator. Let me insert a big "but" right here. It is still not a good idea to purchase a bunch of toys to slap on top of cakes and advertise that you do so for profit. It’s the profit thing that most companies/designers/creators are concerned with. Let’s jump into reality for a moment. Is it likely that Disney is going to go after every cake maker that makes a Belle, Nemo, or Elsa cake? No. Just know that they have the right to do so and can exercise that right when they see fit. Odd as it may seem, they have to actively defend their designs to maintain their rights. Going after little cakers is within their ability and it’s something big companies have done, and will continue to do.
I can’t tell you how to run your cakey world. We all have to make decisions for ourselves. If you’re OK with making character cakes without license and accepting the risks involved, go for it. If you’re pouting and kicking the toe of your sneaker against the flour bin, and begrudgingly throwing up your white flag to the big guys, good for you. It’s your decision. You have the facts. Now you know the risks.
For additional information, facts, and just plain good advice:Selling Cakes With Copyrighted Characters
and Selling Copyrighted Character Cakes - Should you do it?
And the final word, at least in the United States, The US Copyright Office
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