I was looking at photos of my friend’s little sister’s birthday party and I saw that she had a Hello Kitty cake– that is, Hello Kitty’s head was the cake, frosted in white and topped with a pink bow. I assume they bought it. Now, I’m no cake expert but I am a fan of TLC’s Ace of Cakes and being in this class, I’m starting to think there’s an infringement with everything, including sweet treats like this.
Any licensed character is exactly that: licensed. Just like any other copyrighted works, creating a character out of cake is no different. What about all those Spongebob, Dora the Explorer, and Barbie cakes out there? Wilton, a baking industry, sells licensed character pans that are official Disney and Nickelodeon, etc products, so it’s very easy to make a cake with a kid’s favorite cartoon. But Wilton explicitly marks on their pans that these are for home use, stating “these ‘mold making items’ are strictly prohibited for any type of commercial use since the licensor has neither the method to control the quality of the reproduction of the character nor the ability to earn royalties on sales of the ‘finished’ product.” I’m pretty sure Ace of Cakes is handling the legal situations properly when they created It’s the Great Pumpkin, Charlie Brown!
This is like selling a licensed character full body costume but only allowing consumers to use it for private settings. You can have it but you don’t really own it. Profiting off the cakes with Elmo’s face is an infringement on copyright laws, so basically, there probably are local bakeries and bakers selling illegal children’s cakes.
I suppose this is fairly obvious, but I never thought of cakes infringing copyrights–only because it disappears quickly and they’re scrumptious baked goodnesses. But I have seen several cakes back home in Texas, where people explain they bought it (and unfortunately, I don’t think that the Spongebob I saw looked that tasty) but I’m sure there was no official permission granted. It’s strange because it’s just another sculpture, a work of edible art, just made out of icing and fondant.
It’s the same as arguing the difference between the private and public audience when you play the radio. It couldn’t really be under fair use because you’re claiming the character is the exact licensed one. But you can buy the TV show character as a figurine and put it on top of the cake, and there’s no infringement because you’re not deriving any works. Ultimately, then, this is about money.
Although, I suppose you could eat the evidence, and they’ll never know.
Some Rights Reserved
This is a very interesting post, particularly since the popularity of shows like “Ace of Cakes” and “Cake Boss” has set the bar higher for children’s birthday cakes across the U.S. My parents brought my birthday cakes from a local bakery a few times when I was younger, and I remember the shop had a book of pictures of the various licensed character themed cakes that they could make. I now have to wonder if they had permission from Disney or Nickelodeon to use their characters. I would like to think that copyright holders would have more of heart than to spoil children’s birthday dreams of a Hello Kitty or Dora the Explorer cake, since, as a 2005 boing boing post (http://www.boingboing.net/2005/06/16/copyright_cops_crack.html) points out, disappointing kids is “a lousy tactic for a media company” and any infringement is created merely to be eaten within a few hours. However, bakeries such as College Bakery, featured in the boing boing post, have informed their customers that they can no longer accept any “edible images from outside sources,” due to threats of being sued. Surely bakeries will lose a huge source of revenue if they can no longer make children’s cakes, as customers will just go to the another shop that doesn’t mind taking the risk of being caught with their frosting guns loaded.
I also wonder how bakeries feel about creating the photo cakes that have now become popular, the ones where you can bring in a photo and it is somehow printed onto the cake. Considering that the photo could have been taken by a professional photographer or anyone other than the person buying the cake, this is also a potential infringement.
Bakeries that have those character books probably had to pay for the rights to offer those cakes, hence having the catalog books. Baskin Robbins has those books as well, for their ice cream cakes, and on the bottom of the pictures in the catalog it usually has a small copyright symbol. I suspect this is also why big box companies such as Costco do not offer character cakes.
This also may be a case of Disney or Nickelodeon staying away from these bakeries because they never wanted to go into the cake business to begin with. They are making money off of practically every other aspect of the party, from balloons to plates to cups to napkins to character goodie bags. They are making their “dough” elsewhere.
Great post, Caroline. What I’d be interested to know about “Ace of Cakes” is that while perhaps they have taken legal precautions in licensing characters whose faces are on their cakes, what (if any) precautions have they taken when it comes to broadcasting their work (and thus, these characters) to millions of TLC viewers? Just like we learned in Carrol’s article–that displaying a sculpture in the background of a movie is copyright infringement if the sculptor did not give permission–displaying the cakes on television seems as though it could be FURTHER infringement. Unless of course, the owners of the characters gave license in 2 ways–1) to recreate the character on a cake, and 2) to essentially “profit” off of the character not only from the cost of the cake but also by putting it on TV and getting revenue from the show.
Don’t ask me why, but this post also reminded me of painted characters in daycares. These painted figures are a bit more permamnent than icing figures on cakes, but it gets to the heart of trademarked characters.
I remember passing a daycare back at home, and the outside of the building had painted figures that greatly resembled Sesame Street and Disney characters but had subtle differences as to not become a derivative copy.
In 1989, Disney sued three daycare centers in Florida for copyright infringement because these centers had painted Disney characters on the walls(http://www.snopes.com/disney/wdco/daycare.asp). It is hard to completely substantiate that the painted figures gave the daycare more business, which equals more money. However, Disney sued, and the centers were forced to paint over the characters. I think this goes back to the whole idea of protecting trademarks or risk losing them. In order to get the licensed characters, daycare centers must go through the proper channels of buying licensed wallpaper and the such to bring Disney into their decor.
I would think that some bakeries have licenses to recreate these images on their cakes. If not, the bakeries either have to do so illegally or wait it out until the copyright expires. Especially with the Copyright Extension Act (aka the Mickey Mouse Act), there are not even images in the public domain that bakeries can use since the copyrights were extended.
Tiffany, I really do think/agree it’s less of a big deal because it’ll be eaten anyway, but it’s still bringing in money to some local bakery instead of the giant Mouse corporation. It’s interesting you bring up the photo cakes because that’s also a case of infringement, just like Kinko’s won’t make a photocopy if it has a copyright notice on the image. I’m sure bakeries reject those requests as well, unless they want to take the risk (which I hope they do…).
Elizabeth, that’s a good point! The show anticipates an audience by releasing commercials that the cake will be of Harry Potter, for example (but I’m pretty sure that one was cleared). But the others, I guess we’ll never know until the corporation slaps a lawsuit on the show, which again, just makes copyright laws look like companies have no care in the world but for money.
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