Every so often we're reminded of the legal issues involved in reproducing copyrighted and/or licensed characters (such as Mickey Mouse or Dora).
So what's the big deal? There are thousands, if not tens of thousands of photos of character cakes online, and the majority of them are probably illegal.
Here's the bottom line... if we got sued, the legal fees alone would put us out of business. And while the risk of being sued may seem small, I'm not willing to bet the bakery on it.
So, Mary's Cakes & Pastries is unable to make cakes using licensed characters unless a written copyright release has been received from the copyright owner. This includes cakes made from shaped pans, carved cakes, and cakes with the likeness of licensed characters drawn on them.
It is a violation of Federal Copyright Law for a cake decorator to decorate any product they SELL with an identical copy or close likeness of copyrighted movie, TV, cartoon, or comic book character without permission of the copyright owners. To do so can cost the decorator AND the customer a great deal of money for damages under the law. Penalties range from $200 to $150,000 or more. As an individual making cakes privately at home for your own family and friends -- WHERE ABSOLUTELY NO MONEY CHANGES HANDS, EVEN TO COVER EXPENSES -- you can do whatever you want. But the law does apply to us, a bakery trying to make a profit from the cakes we make and decorate. It also applies to any private individual who accepts any amount of money for their creations.
(If you need a cake with licensed characters, skip to the bottom of this post to read about your options.)
There are three issues involved here... The law itself, and the two major exceptions to the law.
Copyright and Intellectual Property
Copyright gives the creator of an original work exclusive rights to it, or "the right to copy." It also gives the copyright holder the right to be credited for the work, to determine who may adapt the work to other forms, who may perform the work, who may financially benefit from it, and other related rights.
Generally, creating any type of image that looks like a licensed or copyrighted character that is sold for commercial purposes is prohibited unless there is a specific licensing agreement, with two major exceptions.
First Sale Doctrine
The First Sale Doctrine is an exception to the copyright law. After the first sale of a particular object that embodies a copyrighted work, the copyright owner's rights are exhausted and the copyrighted object is free to flow in the stream of commerce. The doctrine allows for resale of the copyrighted object. It is important to note, that the First Sale Doctrine does NOT get around the copyright owner's exclusive right to make reproductions or derivative works.
In the cake world, a baker can purchase a cake pan from a copyright owner (or authorized distributor) and then later sell that same cake pan to another person without violating the copyright owner's exclusive rights. However, the First Sale Doctrine does not allow a baker to purchase a cake pan from a copyright owner (or authorized distributor), use the pan to create the copyrighted characters' likeness, then sell that character cake to a third party. The sale of the character cake deprives the copyright holder of its exclusive right to reproduce and prepare derivative works of the copyrighted object, as well as their exclusive right to distribute the work to the public.
Licensed pans cannot be rented to consumers by stores since the licensor is not earning a royalty from the transaction.
We have never used licensed pans at the bakery, but do offer them for resale in the consignment shop. Any bakery, private baker or decorator that sells cakes made from these pans is breaking the law.
Fair Use
Fair use is the other major exception in copyright which allows use of copyrighted materials without obtaining permission as long as the use can be considered fair. There is a four-factor analysis which must be applied to each use to determine whether the use is fair.
- Purpose and character: generally whether or not a profit is made from use of the work.
- The nature of the work: creative works have more protection than factual ones.
- The amount of the original work being used.
- The market effect, or how the use impacts the market for the original work.
Each factor is given equal weight. The goal is to achieve a balance between the rights of the copyright holder with the rights of the public. Fair use is also technologically neutral so the same analysis may be applied to any medium. There is an excellent and detailed description of the fair use exception on Perdue University's website.
I am not an attorney, but I can see both sides. In a bakery, the ultimate use is for profit (theoretically at least...). But I would argue that its use on a cake for a private birthday party has no major impact on the general market for the artwork. However then there is the perspective of the companies that buy the license and make the plastic figures for cakes (and mainly sell them to large bakeries and grocery stores). If a customer is not allowed to buy a from-scratch and well decorated cake from a bakery like ours, then they have to buy the licensed product from them. So, from their perspective we DO impact the market. Of course the flip side to that argument is that most of our customers don't want the cheap plastic licensed figures and won't not a grocery store cake. Some will go purchase a figure on their own and bring it to the bakery for us to use, but many will just find someone else willing to break the law so they can have a lovely and delicious cake with the decorations they want. Hence, the dilemma.
Options:
If you want to buy a cake with licensed characters you have two legal options:
- Contact the copyright owner to obtain a release for the one time use, IN WRITING. This may take some time and be very expensive.
- Purchase a licensed cake design or figure and bring it into the shop. We will stock a limited number of the most popular items (Dora, Mickey Mouse, Elmo, Hello Kitty and Spongebob), but are happy to put any item you bring into the bakery on your cake and decorate around it.
When searching online for ideas for your cake, you will run across countless galleries from bakeries with beautiful licensed character cakes. At the risk of sounding redundant, these cakes were either made with the copyright release which can run in the thousands of dollars, made for display purposes only, or made without the copyright owners consent (illegally).
So please don't ask us to break the law and put the bakery at risk. There are several extremely creative people working at Mary's Cakes & Pastries. I'm sure we can come up with an original and LEGAL way to decorate your cake.
