Tuesday, April 12, 2016

Another common issue that is often ignored is how copyright law affects cake decorating. Copyrighted characters created by Disney, Nintendo, and Nickelodeon are often requested as decorations for kids’ birthday cakes, and trademarks from designer purse manufacturers and sports teams are a common sight on cakes for weddings and other events.

Under current copyright law in the US, in most cases you must obtain permission from the copyright or trademark owner if you want to duplicate a protected work, such as an original character or logo. There are a few exceptions to this rule (including use as a parody, educational use, or copying a small portion of a work as part of a review), but these exceptions typically won’t apply to cake decorating.

If you are copying a copyrighted character in fondant, gumpaste, buttercream, etc. on a cake for personal use, your risk is minimal as long as you do not display the cake publicly — this means no pictures posted on social media sites. On the other hand, selling a cake with copyrighted characters without permission can be dangerous even if you don’t post pictures yourself — if you did a good job, chances are the customer and other guests at the event will post their own pictures.

There are a couple ways you can protect yourself against infringing on copyrights:

Get permission first.

Some copyright owners will let you copy their characters for free, some will require a license fee, and some won’t allow any copying. If you’re not sure who the copyright owner is, a Google search of the character’s name will usually lead to a web site with a copyright notice at the bottom and contact information for the company. Make sure to get permission in writing.

Since some of the most popular characters are owned by companies that usually won’t grant a license (e.g. Disney), your customers may be disappointed. I find that it’s helpful to require the customer to provide written permission before placing the order, that way if the copyright owner denies the request, the customer’s wrath is directed at the copyright owner instead of you. As it should be.

Use Licensed Figurines

There is a component of copyright law called the “First Sale Doctrine”, which allows you to purchase a licensed copy of a copyrighted work (e.g. a Mickey Mouse figurine) and resell that copy without obtaining permission. This is not considered infringement because the copyright owner has already been paid by the licensee. You should make sure the item you buy is legit and not an unlicensed knockoff.

There are some companies (like DecoPac) that sell complete scenes composed of several licensed copyrighted elements. When you purchase these products the license may require the scene to be used as pictured only. It’s unclear as to whether or not this is enforceable, but unless you want to be a test case I would recommend abiding by the license.

Go Generic or Public Domain

Copyright only legally protects original work, and it only protects that work for a certain amount of time. It does not protect generic concepts at all, so (as an example) you would be able to make a cake in the shape of a purse as long as it doesn’t look like a Coach purse or have a Coach logo.

There are also some works that are in the public domain, either because the author has given up copyright protection or copyright has expired. For example, Lewis Carroll’s original Alice in Wonderland books are in the public domain, so you are free to create your own spin on any of the characters in the book without permission. However, since Disney’s characters inspired by Carroll’s books are protected, you would need permission before reproducing any of them.

The line between generic and copyrighted can sometimes be a little blurry. My rule of thumb is if an average person would look at a cake and think “hey, that’s (copyrighted character)”, you need permission. (Making Mickey Mouse blue won’t cut it.) And since your goal as a cake decorator is to have exactly that reaction, you can see why this can be a difficult situation.

One final note: you may notice many, many examples of infringing cakes posted online by both individuals and businesses. This may be due to people being unaware of copyright law or simply not caring about it, but it does not mean that copyright law is not being enforced. This law exists to protect the investment of people and businesses who spend time and money creating original works of art, and if you create your own original work you would want to enjoy those same protections.

Granted that the scope and duration of copyright law has gotten a little out of control: works are currently protected for 95 years from the original publication date, and you can expect this to be extended further before 2019, which is when Mickey Mouse will fall into the public domain. But that’s a discussion for another time, and unfortunately you still have to follow laws you don’t agree with.

https://jasonkraftblog.wordpress.com/2013/05/21/copyright-law-and-cake-decorating/