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Selling Cakes with Copyrighted Characters

Selling Cakes with Copyrighted Characters

Cakes and cookies bearing copyrighted characters are in high demand, and the legality of accepting these types of orders is a hot topic of discussion in the cake world. CakeBoss Software sat down with intellectual property attorney Michael Atkins to finally get some questions answered by an expert.  If you have questions about using licensed character cake pans, go to this article. 
1. Many customers ask for character-type cakes and cookies, featuring characters such as Mickey Mouse, Elmo, Olaf the snowman from Frozen, Minecraft, and more. Can I legally reproduce these characters in icing, fondant, or some other medium on my baked goods?
Using another person’s design without their permission risks infringing their intellectual property rights, including their copyrights, trademark rights, and personality rights. Copyright protection automatically vests with anyone who creates a new design. Copyright laws enable the designer to stop others from copying his or her design or to create “derivative” spinoffs of the design, which would include copying an image. Trademark protection arises when someone uses a word or design as a brand name. When an ordinary consumer sees the image of Mickey Mouse, for example, he or she probably thinks of Walt Disney. A Mickey Mouse cake probably would lead an ordinary consumer to wonder if the cake was authorized by Walt Disney. Some states also have personality rights statutes that protect against the commercial use of a person’s likeness, name, and signature without their permission. That means creating an Elvis or Barack Obama cake might infringe those persons’ personality rights – or those now owned by their heirs – if their likeness, name, or signature were used without their permission. Together, these laws broadly protect the intellectual property rights owner from having others – including cake designers – appropriate their work without permission.

2. How can I tell if an image is copyrighted or trademarked?
You should assume an image is protected unless you learn otherwise. Images found on the web belong to someone – such as the artist, photographer, or brand owner – and cannot be copied without the owner’s permission. It’s tricky investigating who owns the rights to a particular work. And because artists, photographers, and celebrities make a living by selling rights to their images and works, securing their permission usually costs something – sometimes a lot. It’s usually more practical to stick to images that have a “Creative Commons” license that allows commercial reproduction or that have been found to be in the public domain, i.e., that don’t belong to anyone any more. Just because it’s on the Internet does not make it free for the taking.

3. Can I reproduce the characters if I change one or two details? For example, if Mickey Mouse was wearing blue pants instead of red pants?
Not legally – unless the copyright and trademark owner authorized such use. The Copyright Act protects against “derivate works” that use the copyrighted work as a jumping-off point in creating a new work. Changing Mickey’s pants from blue to red would still start with Disney’s work, so it would infringe its copyrights. Such a slight change probably would also violate the Lanham Act – the federal trademark statute – because it would be likely to confuse consumers into thinking that the cake displaying the new image came from or was authorized by Disney.

4. If I can’t sell products bearing these images, is it ok if I make them for free for my kids or friends and family?
This is a trickier question. Trademark law generally is not implicated if there is no use in commerce, i.e., use in connection with a sale or distribution to the general public. But copyright law protects against copying, so copying an image or using it as the basis for a derivative work would violate the owner’s copyrights. Both statutes protect the “fair use” of a trademark or image – which is why Andy Warhol can paint Cambell’s Soup cans without its permission. Such use is artistic, not commercial. However, fair use generally would not enable a cake designer to sell cakes displaying a trademark or an artist’s image without the right’s owner’s permission. Use in the home or as a gift for a friend is much more defensible as fair use. For practical purposes, the rights owners aren’t going to know about such use – or even care. They are much more concerned with widespread use in the open for a profit.

5. What is the penalty if I get caught?
You could be sued. An artist’s image, a famous brand, or a celebrity’s likeness is an important way how artists, trademark owners, and celebrities earn a living. If you take what’s theirs without their permission – and make a profit to boot – you are making money from their intellectual property. That’s not fair, and artists, brand owners, and celebrities don’t like it. While it’s common for rights owners to notify you that you are infringing their rights, there’s no requirement that they do so. They can simply file suit, which is the only means rights owners have to force infringers to stop, and to obtain an order enabling them to collect money for the damage that past infringement has caused. Lawsuits (obviously) are very expensive – not to mention the money damages a court can award. For example, if the copyright was registered at the time the infringement occurred, the copyright owner can elect to have the court award it statutory damages, which range from $750 to $30,000, and up to $150,000 if the court finds the infringement was willful. The court also can award the copyright owner the attorney’s fees it spent in the litigation. Not something you want to face!

6. Why would a big company care about what one little baker is doing? Don’t they have better things to do?
It’s not fair for that baker to profit from the company’s intellectual property. Beyond that, a big company that allows its brand to be used on cakes without its permission risks having its trademark rights become eroded over time. It also would risk losing control of its reputation. For example, if a little baker making Mickey Mouse cakes accidentally made some of its customers sick, those people might think Disney had something to do with it or at least think less highly of Disney as a result. It also would be a mistake to think the rights holders are always big companies. Artists and photographers make a living selling their images. Using their images without their permission hits them in the pocketbook – something they don’t take kindly to.

7. Why would they try to stop someone from making cakes with their characters? Isn’t it just free advertising for them?
It’s said that imitation is the sincerest form of flattery. But using an artist’s work or a trademark owner’s brand without their permission is closer to stealing. Since they have no control over the cake, and aren’t being compensated for the use of their work or brand, it would be a mistake to think the rights owner would welcome the unauthorized use of their intellectual property as free advertising.

8. I see other bakers making cakes like this all the time. How come they can do it and I can’t? I will lose business if I turn down these orders.
It’s just a matter with complying with the law. If your competitor hires undocumented workers or cheats on its taxes, it gets a competitive advantage over you. But that obviously would not justify your breaking the law to level the playing field. Try telling that to the judge!

9. What is the big deal? It’s just cake, it gets eaten in the end. I’m not hurting anybody by making a cake that makes a child happy, am I?
You’re lucky to be in a business that makes people happy! But you won’t make the artist, brand owner, or celebrity very happy if you take their intellectual property without getting their permission. And you won’t be very happy if you get dragged into court for doing so. Spread happiness with your cakes by not using designs that belong to someone else.

10. How can I get permission to reproduce these images?
You need to talk with the rights owner. That means the artist, trademark owner, or celebrity’s representative. They often have licensing companies that do nothing but grant permission for the use of their works in exchange for money. It can be a challenge to find the appropriate person and work out a licensing agreement. But unless you’re sure the image is in the public domain, that’s what you have to do.

11. Would I stay out of trouble if I made a generic looking cake and purchased a licensed topper, or toy, or edible image to place on the cake or cookie?
Probably. In general, a rights owner’s rights end after the first sale is made. So, if you purchased a licensed topper or toy, the licensor generally would have no say in how you used that topper or toy – including if you incorporated it in a cake. It would have already been compensated as part of your purchase of the licensed item.

Michael Atkins is an attorney at the Seattle law firm of Atkins Intellectual Property, PLLC. He represent clients with trademark issues, including registrations, litigation in state and federal courts, and before the U.S. Trademark Trial and Appeal Board. Outside the office, he teaches trademark law at the University of Washington School of Law, and frequently writes and speaks about trademark issues. 

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