Selling Cakes Made From Licensed Character Pans – Should You Do It?
The short answer is NO. Selling a cake that was made with a character pan protected by copyright would be an infringement on the rights of the cake pan owner. If you want to know why this is a risky practice, read on.
Cake pans are character-themed pans, such as this pan.
THE LAW
Copyrights were created to promote creativity. Copyrights are used to protect the original creations attached to tangible forms of expression. Books, poetry, drawings, music, pictures, sculptures, and sound recordings are all examples of works that can be protected by copyright. Copyright holders have the exclusive rights to reproduce, create derivative works from their original position, distribute copies to the public, perform their work publicly if applicable, and display their copyrighted creations. It is generally illegal to violate any of these exclusive copyright rights without the consent of the owner. However, there are some exceptions. These include the First Sale Doctrine as well as the Fair Use Doctrine.
EXCEPTIONS FROM THE LAW
First Sale Doctrine: This is a concept that states after the first sale, all rights of the original copyright owner are exhausted. The copyrighted item can now be freely sold in the flow of commerce. The doctrine allows for the resale or re-use of the copyrighted item. The First Sale Doctrine is not a way to circumvent the exclusive rights of the copyright owner. In the case of cake pans, the First Sale Doctrine allows a baker to purchase a pan from the copyright owner or authorized distributor and later sell the same pan to another without violating their exclusive rights. The First Sale Doctrine, however, does not permit a baker who purchases a cake from a copyright holder (or authorized distributor) to use the pan in order to create a likeness of the copyrighted character and then sell the character cake to a tertiary party. The copyright holder loses its exclusive rights to prepare derivative works and reproduce the copyrighted work, as well as their exclusive rights to distribute it to the public.
The Fair Use Doctrine is another exception to the fundamental principle that a copyright holder retains certain exclusive rights over their work. The Fair Use Doctrine permits the public to use copyrighted materials reasonably without first seeking permission from the owner of the copyright. Copyright laws recognize fair use for criticism, commentary, news reporting, or teaching. In the context of cakes, the Fair Use Doctrine teaches us that a baker using a character mold to make a character-themed cake can't use the doctrine to justify the sale of the cake. The cake is being sold for profit and not under any exception to fair use.
Conclusion and Solution
It is evident that after reviewing the copyright law and its exclusions, the use of licensed character cake molds for character cakes sold to the public would be a copyright violation. Copyright violations can result in fines ranging from $200 up to $150,000. Knowing the laws is essential.
What can a baker do if he wants to sell character-themed cakes? It is best to ask for permission or a license from the owner of the copyright. It can be time-consuming and costly, but this is the best way to avoid accusations of copyright violation.