Copyright Law and Cake Decorating

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.

If you enjoyed this article and want to help fund future content, you can send a contribution via PayPal. Thank you for your support!

About these ads

12 Comments

Filed under Copyright, Legal

12 responses to “Copyright Law and Cake Decorating

  1. VGCEA

    Great article Jason. I struggle with this sometimes as I have to decline requests from clients who want these characters even when I know they will be fun to make. Seeing others blatantly ignore the law doesn’t make it easier but one’s got to stick to one’s guns and do what’s right. Means I can sleep better without the copyright police on my tail. lol.

    Just like you mentioned, I’ve resorted to asking the client to obtain permission. Works out better that way. Thanks for the write-up.

  2. Alba

    Hi Jason!
    Thanks for this wonderful blog =)
    I am in Spain and I was wondering if you have any information on international copyright laws. I was guessing the same laws would apply than in the US regarding Disney, Nintendo, and all characters, but I am not sure and don’t know where I can research this. Thank you in advance!

  3. Jane

    Thank you so much for this article.
    I’m a cake decorator from the Philippines. I couldn’t believe it when i got letters from lawyers of such huge companies. I love cartoons. I got depressed after reading their letters. I feel singled out because so many people still decorate cakes with all these characters.
    Your article makes me feel better. At the very least, it makes me understand my problem.

  4. Andrea

    Hi Jason – How does this law apply to “Event Decorators”? If we serve a cake created by a decorator at a party, are we liable also? In addition, what about using lets say an NBA basketball at an event as a “guest sign in” at an NBA “themed” birthday party? Is this Trademark Infringement?

    • I am not an attorney, the following information is my opinion only. If you want concrete answers I recommend contacting a lawyer in your area.

      I’m not sure to what degree you could be held liable for copyright infringement if you merely serve an infringing cake created by someone else. My guess is that since you did not make the cake a suit against you would probably be thrown out.

      Regarding the basketball, if you use a real licensed basketball I can’t see how there would be copyright infringement since you are not making a copy of the basketball, and there wouldn’t be much of a case for trademark infringement since no one would assume that the birthday party is an official NBA event.

  5. Pingback: Using Licensed Images, Artwork, and Graphics for Events and Parties » Sage Wedding Pros

  6. Nikolay

    Thank you so much for this information. Very useful to know this.

  7. Nadia

    Wow- this was exactly what I was wondering about …

    I had a question regarding using candy brands such as Snickers, Reeses, Almond Joy, Oreo, etc. as cake flavors, cake themes, or even making cakes that whimsically resemble these popular treats … is there copyright infringement issues here if you call it a “Reeses Cake?” I am very curious about this as I see a lot of bakeries and ice cream shops doing this.

    Does it make it okay when you are using their candy (so you have already “paid” them) as a topping or a flavor? Would it then be an issue if you are NOT buying their candy to recreate their flavor combination, but calling it by the candy name (example, chocolate cake with pb buttercream and chocolate ganache that you then call “Reeses”)?

    I know that there is an obvious way around this- to simply use generic names such as “peanut butter cup”, “cookies and cream”, or even just “candy bar” but as you mentioned, there is a certain added advantage when someone looks at your product and says “Oh look, it’s a Reeses!”.

    Thank you very much, looking forward to your advice!

  8. You can’t use someone else’s trademark in your product name without permission (as that would imply that your product is implicitly endorsed by the trademark owner), but you can use trademarks to describe the ingredients of your product, for example in a product description.

    The combination of flavors in a product is not copyrightable so you would be able to reproduce the flavors without any issues, but as you mentioned the name itself would need to be generic.

  9. Nadia

    Thanks a bunch, for your reply here and on Cake Central :)

    Cheers