Decorated cakes with logos and characters are common at parties and events. The problem though, is that these cakes feature copyrighted images. The question of how to theme a cake without violating intellectual property rights remains a hot topic of conversation within the cake world. Using a copyrighted design without first obtaining permission from the property owner can result in substantial legal penalties.
Federal copyright law prohibits bakers from decorating any product they sell with an identical copy or close likeness of copyrighted characters (from movies, television, or comic books), school mascots, and sports team logos without permission from the intellectual property owner. Licensed character-shaped pans, candy molds, and cookie cutters are intended for consumer use only, and professional decorators are prohibited from using them to produce cakes, cookies, or candies that will be sold to their customers. Similarly, copyrighted characters cannot be drawn or iced on cakes, cupcakes, or cookies that will be made available for sale.
When a registered copyright is infringed upon, the owner of the copyrighted image can elect to be awarded statutory damages by the court, which range from $750 to $30,000, or up to $150,000 if the court determines that the infringement was willful. The court can also award the owner all of the legal fees and court costs they have incurred, as well.
The First-Sale Doctrine
The first-sale doctrine is an exception to the copyright law that allows for the resale of copyrighted objects. Many large companies sell figurines and toys depicting characters, and your purchase of them entitles you to incorporate these pieces into a cake. Your baker can then create a background scene for these figurines. Similarly, if you’d like a cake themed after a school or sports team, it could feature a licensed topper – with the school or team colors incorporated into the cake design.
Works that are in the public domain lack copyright protection – either because the creator has chosen to forego it, or due to the expiration of the copyright. Since intellectual property rights no longer apply, you’re free to use these concepts however you wish. For example, the 1925 book, The Wonderful Wizard of Oz, is now in the public domain- so you could create your own spin on any of the characters in the novel without needing permission. However, many of the later editions of the book are still protected by copyright, so you would need permission to reproduce characters from any of those editions.
Your baker may be able to duplicate a theme you like, while avoiding the use of any copyrighted elements. Many items – such as trees, animals, and buildings – are too universal to be copyright-protected. While it’s not okay to use the characters from the movie Zootopia without permission, there’s nothing wrong with creating a cake that features the crazy antics of anthropomorphic rabbits, foxes, sheep, and polar bears.
You may be able to get permission from the copyright holder to use a character for a private event. Some copyright owners will allow you to copy their characters for free, others charge licensing fees, and others completely prohibit copying. If you don’t know who the copyright owner is, a Google search of the character’s name will likely lead to a website with contact information for the company. It may require a little time, but a phone call might be all it takes. Just ask for a one-time use for creative properties permission for your local baker to replicate their logo or character on a cake for a personal event. Be sure to obtain permission in writing.
At American Dream Cakes, we require a written document from the copyright holder prior to selling any baked goods featuring copyrighted material.
While it may take a little extra effort to avoid copyright infringement when designing a cake, it’s certainly preferable over explaining to a court why you disrespected the rights of property owners. Plan ahead, and celebrate your special occasion with a cake you can truly be proud of.