1. Customers often request character-type cookies and cakes, including Mickey Mouse, Fortnite characters, Olaf from Frozen and Minecraft, Baby Yoda, and others. Can I reproduce these characters legally in fondant, icing, or another medium on my baked products?
If you use another person’s design without their consent, you may be violating their intellectual rights. This includes their copyrights and trademarks as well as their personality rights. Anyone who creates a design automatically receives copyright protection. Copyright laws allow the designer to prevent others from copying their design or creating “derivatives” of it, including copying an image. When someone uses a design or word as a trademark, they are protected by trademark law. Walt Disney is probably what comes to mind when a consumer thinks about Mickey Mouse. An ordinary consumer would probably wonder if Walt Disney approved a Mickey Mouse cake. Some states have also passed personality rights laws that prohibit the commercial use without permission of a person’s likeness, name, and signature. If the likeness, signature, or representation of Elvis or Barack Obama is used without their consent, it could be a violation of their personality rights or those that their descendants now own. These laws protect intellectual property owners from others, including cake designers, appropriating their work without permission.
2. How can I determine if an image has a copyright or a trademark?
If you don’t know otherwise, assume that an image is protected. Images on the Internet belong to someone, such as an artist, photographer, or brand owner, and they cannot be copied without their permission. It can be difficult to determine who has the rights to an image or work. Because artists, photographers, celebrities, and others make their living selling the rights to their jobs and ideas, getting their permission can be expensive. Most often, it’s more practical to use images with a “Creative Commons license” that allows commercial reproduction or those that are in the public domain. It’s not free to take just because it is on the Internet.
3. Can I recreate the characters by changing one or two details only? If Mickey Mouse wore blue pants instead of red pants, for example?
No, unless the owner of the trademark and copyright has authorized this use. The Copyright Act prohibits “derivate” works that take a copyrighted piece of work and use it as a starting point for a new job. Disney’s copyrights would be violated if Mickey’s pants were changed from blue to red color. A slight change like this would likely violate the Lanham Act, the federal trademark law. It would confuse consumers and make them think that the cake with the new image was Disney’s work.
4. Can I make these products for my children or family members for free if I cannot sell them?
This is a more difficult question. The trademark law is generally not involved if the mark isn’t used in commerce. This means that it isn’t being used in conjunction with a public sale or distribution. Copyright laws protect against copying. Therefore, copying or using an image as the basis of a derivative work will violate the copyright of the owner. Both statutes allow “fair use” to be made of a trademark or an image. This is why Andy Warhol could paint Cambell’s Soup tins without permission. This is not commercial but artistic. Fair use would not allow a cake designer, however, to sell cakes that display a trademark or artist’s image. Fair use is more likely to be justified when the cake is used in your home or given as a present. Practically, rights holders won’t know or care about this use. They care more about widespread, open use for profit.
5. What are the penalties if I am caught?
You could be sued. Artists, trademark owners, and celebrities make a living by using the image of an artist, a well-known brand, or a star. You can make money by using their intellectual property if you use it without permission and profit from it. It’s unfair, and it’s something that artists, brand owners, and celebrities do not like. Rights holders don’t need to inform you if you infringe their rights. The only way for rights holders to get infringers to stop is to file a lawsuit. This allows them to receive an order that will enable them to recover money from past infringements. The cost of a case is high, not to mention any monetary damages that a court may award. If the copyright had been registered when the infringement took place, then the owner of the copyright can choose to have the court award statutory damages. These range from $750 up to $30,000 and even $150,000 if a court determines that the infringement was deliberate. The court can also award the attorney’s fee to the copyright owner. You don’t want to be in this situation!
6. Why should a large company care what a small baker does? Do they not have more important things to do than bake?
It is not fair that the baker profits from the intellectual property of the company. A big company that allows its trademark to be used without permission on cakes risks losing its rights over time. A company could also lose control over its reputation. If, for example, a small baker accidentally made some customers sick by making Mickey Mouse Cakes, they might believe that Disney was involved or, at the very least, think less of Disney. A mistake would also be to assume that the right holders are always large companies. Artists and photographers earn a living by selling their images. They don’t like it when their pictures are used without their consent.
7. Why would they stop someone making cakes with their characters on them? It’s free advertising, isn’t that what they want?
Imitation is said to be the best form of flattery. Using an artist’s or trademark owner’s logo without their consent is more like stealing. It would be a mistake for rights owners to accept the unauthorized use as free advertising since they don’t have control over the cake or are not compensated.
8. Other bakers make cakes like that all the time. Why can they do it, but I can’t? I’ll lose my business if I refuse these orders.
Just follow the law. Your competitor gains a competitive edge over you if it hires illegal workers or cheats its taxes. Breaking the law in order to equalize the playing field would not be justified. Tell that to the judge.
9. What’s the big deal? What’s the big deal? Making a cake for a child that makes them happy is not harmful to anyone.
You are lucky to work in an industry that makes people happy. You won’t be making the artist, brand owner, or celebrity happy if they find out that you have taken their intellectual property. You won’t feel very good if your actions are brought to court. Don’t use designs that are not yours.
10. How do I obtain permission to reproduce images?
It is important to contact the owner of the rights. This could be the artist, trademark holder, or representative of a celebrity. Often, they have licensing companies who do nothing more than grant permission to use their work in exchange for a fee. Finding the right person to negotiate a license can be difficult. You have to use it unless the image is in the public domain.
11. Will I be in trouble if I make a generic cake and buy a licensed topper or an edible image for the cake or cookies?
Probably. Rights owners’ rights usually end with the first sale. If you bought a toy or topper that was licensed, the licensor would not have any say on how you use it, including if you put it into a cake. The licensor would have been compensated for the purchase of a licensed item.