Merci Beaucoup Shop Talk: Cakes and Copyrights

I started drafting this "Shop Talk" on copyrights back on July 3rd.  I can now see September from my couch!  I have never had a bigger headache in composing a post than this tangled web of double speak and vagueness known as copyright law.  In front of me is a small yellow pad filled with handwritten notes.  I had to create a whole new bookmark folder just for all the links and websites I've come across.  I've watched hours of online videos.  There is literally an endless stream of copyright information and all of that combined with my first draft of over 14,000 words (!!) has pointed me to one very simple answer: I am not smart enough to figure this out!

If you want to know if you can reproduce a copyrighted image, the smart money is on that technically you cannot.  For those of you who read up on our Facebook contest dilemma last week, the safest path is to just avoid it all together.  But obviously that is not what we want to hear as a business trying to sell cakes and satisfy customers.  We want to know what we can do, we want answers and solutions.  Prepare for disappointment my friends.

Copyrights vs. Trademarks

When cakers talk about getting sued by big a corporation, without fail Disney comes into the conversation.   It's not necessarily because they are an evil group of fun haters who want little children to have horrible birthday parties, it's because their characters are trademarked.  I know the title of our post concerns copyrights, but that only covers and protects the expression of ideas.  Trademarks are the ones that cover logos and brand names and how they are sold or used to identify products and companies.  Some logos can be both copyrighted and trademarked but only if there is enough "authorship" in the logo to be considered worthy of a copyright.  Copyrights are about works of art (books, paintings, songs etc.) so something like the Nike Swoosh is more of a trademark.  That is why Disney has it's characters trademarked, not copyrighted.  They are more an image than an idea.

Why is that an important distinction for you as a decorator?  Because by law, trademarks must be enforced.  Disney has to actively monitor and obtain legal action against companies violating their trademark or they could lose it.  Trademarks are meant to wholly and completely define the image of a company and if you let someone else use it then you are saying that (in the case of Disney) Mickey Mouse does not represent your company anymore and you could lose trademark protection of that character.

So, if you're asked to faithfully recreate something that is a trademark, there is a greater risk of gaining attention.  Think about what it is they (client) want to do.  A fully sculpted Mickey Mouse, that could be a problem.  An Xbox cake?  Well, the logo is trademarked, but the shape of the console?  Not so much.  What about recreating the mop scene from Fantasia?  Just the dancing mops cleaning the floor all by themselves is part of a copyrighted film (story), but you're not including any trademarks (no Mickey!).  That would be harder to prove you were violating anyone's rights because you are interpreting a work of art which leads me to the murky world of....

Fan Art

Does the world of cake decorating fall under fan art?  That is the question I have been asking myself since I started this topic.  I live in the world of comics and walk around convention after convention in an industry where fan art is everywhere.  It is expected, so when an artist sells a sketch of a character that they didn't create (say a Stormtrooper) no one really bats an eye.  Now, you can't obviously make and sell a comic with Spiderman in it, you can't order up 5000 prints of your Spiderman art to sell online without the license, you can't charge people to come see it in a museum, but when I approach you at your booth and ask for an 8x10 of Spiderman jet skiing with Ewoks while Batman watches from the pier, no one cares.  In fact, creators are often excited to see someone else interpret their property.  So, as cake artists, are we then creating fan art?  Maybe-ish??

Prepare for the ideas of "derivative work," "parody," and "fair use!"  I really need a glossary on this Shop Talk!!  Generally fan art is considered a "derivative work," hence you are using the settings and characters from a previously copyrighted work, but in a new way through your own artistic eye.  That covers probably 90% of what most of us do on cakes.  However, it is still unlawful to display or distribute (sell) this derivative work unless it can fall under fair use!!  When evaluating whether a work could be considered "fair use," a court would look at a number of things including how much of the original work is used, the interpretive nature of the new work and most interestingly to us as cakers "the economic effect that the derivative work imposes on the copyright holder's ability to make and exploit their own derivative works."  (To clarify, a sequel to Toy Story is considered a derivative work of the original movie regardless of who makes it.)  

In other words, while it could be within the right of the trademark holder to sue you, if you made a $50 birthday cake commissioned by a client, it would take a hard hearted judge to levy a penalty against you, at least nothing substantial, because you hardly are stepping on the toes of a big corporation like the proverbial Disney.  Now, if you are advertising that cake in a magazine or catalog to the entire country, then you are definitely interfering with the ability of the trademark holder to make money off of their property and that would be trouble.  Hint: the internet goes across the entire country.

The loophole's loophole is the glorious idea of free speech through "parody."  Now, this, as far as I can tell, has not really ever been tested in the cake world, but when you think of comedic parody such as Saturday Night Live or movie parodies, the courts have afforded some pretty extensive protection to the idea.  Political cartoons have also fallen under parody when they've done things like put Mickey Mouse ears on someone to denote they're acting like a child etc.  Can a cake fall under a parody?  Honestly, you would need a pretty sharp lawyer, but I would think the possibility is there.  Time may tell.

Blame The Client!

There's a lot of common sense arguments that we could apply to these situations like "the client asked for it."  Think of my Spideman with Ewoks commission example above.  I asked for it, so what's wrong with that?  Well, did your mom ever throw that "if he jumped off a bridge" argument at you?  You're an adult, you're a business owner, your actions are your own.  You do not get to blame someone else.

I've talked about it in our posts on consultations and it remains the theme of "Shop Talk."  You are a professional, act like it.  Explain to the client how you are taking a legal risk with their request and then tell them how you can interpret that theme to give them what they want but in your own creative way.  Convince them your idea will be better, but if they say no, and you feel uncomfortable taking money for the design, remember the safe route and just say no.

The Cricut & The Cake Pan

A quick primer on the idea of "licensing" a property.  Some companies can buy the rights to distribute a copyright or trademark from the holder.  Toys, posters, coloring books, things like that.  Even beer can be licensed so say a company could brew the Danish Carlsberg recipe on American soil.  You buy the right, the license, to recreate that image or product.  So when you see super markets selling Spiderman cakes, it's because they are using decorations sold to them under a license.  Hint: if your client brings in a toy they bought for you to place on top of the cake, you didn't recreate anyone's trademark now did you?

I know a lot of you are Wilton faithful and you might be thinking, "well, what about the Spongebob cake pan I bought at the store?  Can't I use that to make cakes?"  Sure you can, but Wilton obtained the license for that image and that design based solely on the disclaimer that it is for "home use only."  They are selling you that pan considering you to be a hobbyist and legally, after that, they are washing their hands of you!  There is no transfer of rights from when you buy that licensed pan to use it commercially.  The simple answer to this then is to learn how to carve and sculpt your own cakes.  Sorry if this is harsh, but "Shop Talk" is about being a business and a professional and if you're baking and decorating the Wilton line of pans and selling yourself as a professional decorator with those designs, you have bigger problems than copyright law.

Now, the Cricut Cake is a whole different idea of licensing.  Shortly after the release of this machine, Provo Crafts tried to post on their website that the images and designs they were selling in their cartridges were intended for home use only and for crafting and hobby and were not to be used to decorate any cake being sold for profit.  The problem here is, no one owns the image of numbers.  There is no trademark holder on "7" out there!  A loosely outlined bear shape is not definable enough to warrant a trademark.  The Cricut is a tool and the for the most part, their designs are too vague and too common to be considered anything that deserves protection.  And once you start layering the cut outs and placing them on a cake, clearly you are into fair use/derivative work territory.  They also tried to do this after they sold you the product.  There's a reason we cannot complete a download of software without clicking "agree" on the user agreement.  You cannot backdoor someone into a contract.  Provo has since backed off of this because simply put, it is virtually unenforceable. 

The same goes for your generic Wilton (or other brand) cake pans.  A ball is not a trademark.  A skull, a train, a castle, these are all too generic to be protected.  Remember, Wilton is washing their hands of you after the sale, not trying to enforce any laws.  It is the licensed products of trademarks you have to be careful of.

Beyond The Cake

This is a little off topic from decorating, but I did want to touch on copyright issues in other areas of our business, specifically, our shop names.  There's a decorator in Australia who calls herself "Grace of Cakes."  I'm sure she thought this was super clever, and while I don't know about the international copyright laws or how Food Network and the producers of Ace of Cakes protected themselves, clearly this is flirting with a lawsuit.  It's like if I opened a theme park in Anaheim and called it Mizneyland.  Okay, they're gonna catch on.  If you make cakes using a Cricut and you market them on your website as your "Krikut" line of cakes, they might catch on.  Calling Spongebob "Spongerob," they're gonna catch on.  Simply put, be your own person, don't mimic someone else.  We have a hard enough time with copyrights in decorating, we don't need to invite that into our own brands!

My Brain Hurts!

In summary, the thing about all of this is scale and exposure.  Supermarket chains need to use pre-approved licensed products because they are large and attract attention.  If you're shop is next to Disneyland, you could attract attention.  If you're in New York or a major city, you could attract attention.  If you are doing a 5 foot tall Donald Duck for Make A Wish, you could attract attention.  

But, if you are just a local bakery and you have the occasional client who wants a birthday cake for 20 kids with a Teenage Mutant Ninja Turtle piped on it, and you don't use that image to promote your business or add it to your example books, you should be okay.  I'm not saying you won't get sued, but discretion is key.  It will also be helpful to hone your ability to interpret a theme.  There's lots of ways to use color and the imagery associated with a trademark without recreating the protected symbol.  Because after all, you want to market your abilities and artistic sense, not someone else's right?  

But know this, if you're making money off of someone else's property, they have the right to come after you, period.  Managing your risk is the best option. 

Now, this post was, like I noted earlier, significantly longer in my first draft.  We're treading on legal subjects and I am no lawyer.  If you have one, consult them for their "real" opinion.  All I tried to do in this final draft is give you some talking points and buzz words to use in your own research.  My final advice is nothing more than that, advice.  

Please, please, please share your own experience and stories and research in the comments below!!  The more we can all talk and share our thoughts on this very tricky subject, the better it will be for all of us.  If you found something that contradicts what I've written, please let me know!  This is only the beginnings of a very long conversation and I am one very moderately intelligent man trying to make heads or tails of it all;)  Best of luck to everyone, especially me!!

And next week on Cake Talk, if I can stop my brain from throbbing after copyrights, we will discuss the customer!

Comments

[Kirsty]

awesome post!! Thanks for clearing things up

[Mike Cote]

Hi Reva,
Mike from TahDah! Specialty Cakes. Love watching you and Mark create!

Thanks for all the research you've done and some very interesting point were made. It's literally a mine field! One of the safest things is naturally avoid altogether and explain it to the client...which is my preference.

We're cake designers and our finished product is not something that will last more than a couple of hours...if that, nor is it anything to save and pass on to future generations...it's simply a consumable good.

If there's sufficient time prior to the date,(and who knows how long this could take?) then an attempt at requesting written permission from company (..say Disney), explaining the intended use and providing a proposed design sketch may work. (btw..I just went through that with High School grad cake with Logos and mascots...not such an issue with school districts but universities are definitely an issue.)

If you're fortunate enough to gain written permission for usage, it's definitely worth keeping on file with sketch for possible future "issues".
Otherwise, it's pretty clear cut, "no ticky, no laundry," "no permission, no cake".
Keep up the great work in the Sugar Arts!

Mike

[Belinda]

Definitely something to think about. Thanks for doing all the research work. I will be sharing this info with all my cake decorating friends.

[Kylie Lambert]

I made some Chanel cupcakes a few years ago & received a legal letter from their Australian lawyer, & had to sign a document saying I wouldn't do Chanel cakes anymore :( Though every Tom, Dick & Harry still make them so I'm not sure why they singled me out. I did notice activity on y Blog from London Chanel around the time....