A Baker’s Guide to Trademark & Copyright Law

Copyright and Trademark Regulations for Bakers

In this tutorial, I’m going to zoom all the way in on the topic of “copying” when it comes to cake designs. I’ll explain the difference between what’s illegal, what’s unethical, and what’s perfectly fine when it comes to the work you sell and share online. My goal is to help you avoid legal trouble, avoid committing social media blunders, and discover ways to be awesome.

VIDEO: Cakenapping 101 – Trademark & Copyright Law

 

Trademark Violation

Copyright and Trademark Regulations for Bakers

It is against the law to sell cakes that depict trademarked characters without permission from the trademark owner. D*sney in particular has been known to crack down on bakeries and when they do, the punishment is a whopper of a fine. So if you have photos with that theme on your website or social media profiles, I recommend taking them down and letting future customers know that it is against the law for you to depict trademarked material on desserts.

Now there is one exception called the “First Sale Doctrine.” According to this rule, if you purchased something from the trademark owner like a licensed figurine or a DecoPac template then you can sell a character cake without obtaining permission. The reason why this is okay is because then the owner of the trademark earns a royalty on your sale.

 

Copyright Infringement

Copyright and Trademark Regulations for Bakers

Photo Theft

It is against the law to use someone else’s photo without their permission. When I say “use,” I mean copying and pasting it onto your personal blog or business website or brochure or any other kind of marketing material. Your photos, my photos, everyone’s cake photos and logos are automatically copyright protected. That means the majority of images that you find online when you do an image search are not up for grabs. Even when there’s no watermark or the link is broken so you can’t figure out who the owner is, the original copyright still holds. In the US, copyright laws do not require the creator to include a copyright notice. And copyrights are good for the life of the creator plus 70 years. Or if the creator is unknown, the copyright is good for 95 years from the first date of publication. So unless you are reading this article in the year 2086, it’s safe to assume that every image is copyright protected.

In case you are still considering risking the idea of straight up using someone else’s photo, let me warn you that bakers who’ve been around for a while tend to recognize each other’s work. The cake community essentially polices itself when it comes to this sort of thing. So by pinching the photo, not only are you breaking the law but you could end up dealing with an angry online mob of bakers.

But do not despair. If you are just looking to populate your site with more images because you don’t have enough of them, you can buy images from websites like istock. Of if you want free stuff, you can search on websites like morguefile and pixabay that offer high resolution images that are in the public domain or that have been licensed under creative commons CC0. But don’t put photos in your portfolio of work that is out of your technical range of abilities. Then you’re misrepresenting your own skills, which can result in unhappy customers.

Design Piracy

Believe it or not, copying someone else’s original cake design without their permission is also an act of copyright infringement. If your version of the design is identical or nearly identical to the original and the original is exceptionally unique, then there is no question about it. If your version is derivative, as in kind of similar, then it gets into a murky ethical gray area that may or may not be okay.

Here’s what you need to know: if you’re copying the design just for “educational” purposes like to practice your skills  – and you don’t share the photos online – then it’s okay. But if you’re running a blog or a business, then technically, you need to contact the original artist and ask if it’s okay.

Another solution is to tell the customer that you are willing to use the design as inspiration but will have to put your own creative spin on it. I recommend being very matter-of-fact about this. “Sorry I don’t copy other artist’s work.” The keyword here is artist. Not everybody is schooled in the social dynamics of the cake industry but most people can understand why it’s weird to copy someone else’s art.

You can add, “However, I would be happy to incorporate some of your favorite ideas into your cake.” Help the customer identify what parts of the design they like best and then agree to work those aspects into something original that does not infringe on a copyright.

If the customer is reluctant to agree to this, there are two ways you can have this conversation in a way that puts a positive spin on it for them. You can sell the idea that their cake will be one-of-a-kind and together, you are going to figure out exactly how to make it unique. Or you can sell the idea that you will surprise them with a unique element that will be revealed on the day of the party.

Unknown Source

Not being able to locate the source of a design for whatever reason does not absolve you from the responsibility of honoring a copyright. In other words, you still can’t clone a cake. The only safe bet is to assume that the photo is copyright protected, which means all the same rules apply.

Now if you have already gone ahead and cloned the design, it’s best not to share photos of it on your website or social media. But keep in mind that if you did a spectacular job then guests at the party are very likely to share photos of their own.

If you can’t resist sharing a photo because you’re so happy with the work that it’s killing you to hold it in, then noting something in the caption like not my original design, can’t find the source in the caption is a good idea.

Designs You Paid to Learn

When you pay money for instruction, be it a book or a class, you are paying for the lesson, not for ownership of a copyright. That means the content within the book or blog or course materials are still copyright protected under the instructor’s name. Just the same as when you buy a book, you can’t copy the text and paste it onto your website as if it were yours. That would be plagiarism. The same thing goes for pictures and original designs, even when it’s a how-to book.

Now of course, cake designers who sell books and classes expect students to copy their work. That’s what the material is there for. But when you share photos in a public forum of your work that copies those designs, you are obligated to cite the source.

We also have a kind of moral responsibility to cite a source when a class or book or a free tutorial is involved because it’s to the benefit of all future bakers who might be interested in recreating that design. A lot of what drives the copying of cake designs is customer requests. So if you execute a design from within a book, class, or tutorial but you fail to cite its source then you’ve broken the chain linking back to the instructions. Let’s say a handful of brides then find your photo on Pinterest and take it to their wedding cake bakers, then all those bakers will miss out on the opportunity to access the instructions. So for the sake of all brides and bakers everywhere, don’t break the chain!

The same goes for the stuff that you pin on Pinterest. When you pin cakes, try to make sure it links directly back to its original designer, not to some website that aggregates content but straight to the bakery or blog that created the work. I mean, if you can’t find it, you can’t find it but sometimes it’s as easy as revising the link or doing a quick image search. Every link from Pinterest to a baker’s website helps their search rankings so if all bakers commit to preserving each other’s links then everyone stands to gain from it.

Mashups (A Combination of Ideas)

If you are mashing a bunch of different ideas together then you’re created something new, which is not a copyright infringement. However I want to add that you never have anything to lose by crediting the artists who inspired you. You only have kittens and baskets of puppies and kudos to gain.

4 Benefits to Adding a Linked Attribution

#1 SEO Optimization

Because search engines account for your outbound link activity in their indexing algorithms. Your links help the robots read your site better. So Google favors a website that connects to other similar websites more than a website that doesn’t. Which means in terms of SEO, you’re helping your site, the other bakery’s site, and the search engines. It’s a win-win-win.

#2 Networking

Because it’s a networking opportunity for you. It gives the creator a chance to follow you back on social media and possibly even retweet or mention your work. It’s no guarantee but it’s really fun when it happens.

#3 Reciprocity

Because it’s an act of reciprocity. It’s a way of thanking the person who taught you something or introduced you to an idea that enhanced the quality of your own body of work.

#4 Positivity

Because acknowledging the work of a fellow artist is like giving a compliment and It is scientifically proven that the simple act of giving a compliment releases endorphins in both the giver and receiver. So you will be setting a chain of positivity in motion.

Concluding Remarks

As artists, we are informed by our peers. Our peer group is informed by the work of those who came before us. No one baker can claim ownership over an entire idea. We find inspiration in each others’ work. As we riff on existing recipes and designs, the industry evolves. Whether we are innovating or imitating the work of another, we all play an important role in the collective growth process of our creative industry.

Sources
United States Copyright Office
Law and Etiquette for Using Photos Online
Eat Your Art Out: Intellectual Property Protection for Food

If you have any questions or ideas to add to this discussion, feel free to comment below. 

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Comments

A Baker’s Guide to Trademark & Copyright Law — 20 Comments

  1. I have a very unusual question to ask you. What are the rules if you take somebodies cake design and turn it into paper art. When I put it on social media I will put the cake that I used for my inspiration and a very nice post and credit.

  2. I have a question that I’m hoping someone can answer. I worked for a bakery & was their cake decorator, obviously I took pictures of my work. Now, my ex-boss (from 2 years ago) is trolling me & found my Instagram page with my work on it (some done in her shop, the rest out of my home) & threatening me with “trademark” stuff if I don’t take the pictures down.
    The thing is, they weren’t her designs. Customers brought in pictures of cakes they saw off the internet for us to replicate (which in & of itself is considered copyright/trademark infringement, I know). And although they were made “in” her shop, I’m the one who decorated them.
    So… can’t these pictures be considered, like, half mine half hers?
    She’s crazy enough to get a lawyer involved, I’m sure. Would she win?

    • I am not an attorney, so you will need to research this yourself as it pertains to your situation. But I can tell you about what I learned after receiving a similar complaint when I first launched my business. There were five main reasons why the copyright belonged to me even though I produced the work as an employee. Here they are in order of importance:

      1) I never signed a contract waiving my rights to the intellectual property of the photos or designs of the work that I did there.
      2) I was hired at that particular bakery on a freelance basis, not as a regular employee.
      3) I worked independently on the cakes in question without any direction or supervision.
      4) The designs came straight from my imagination and were not derivative of anything else that bakery had ever done.
      5) The cakes were custom-made, not designed for the purposes of mass production.

      All those criteria put together made it very clear that I was the owner of the copyright.

      It would be harder for you to claim copyright if ANY of the following apply:
      – You were a full time employee at the time the work was done.
      – The designs could be proven as proprietary of that bakery.
      – You received instruction from an employee on how to execute the designs.
      – You created the designs specifically to be reproduced.

      In cases when the cake was not originally designed by you or your employer, then neither of you own copyright on the design. As for who is entitled to use the photos of those cakes, I assume that would be based on the criteria listed above. Personally I don’t see much value in those kinds of photos though. They are certainly not worth the hassle of getting trolled. Therefore you may want to consider removing them from your feed.

  3. so you said if you by a figurine etc…it doesnt count and you dont need oermission…does this include character cake pans and candy molds?

      • It should be noted that they also must say they’re approved for commercial use on the packaging. The Disney cutters you buy in the stores say very clearly on the back they’re for home use only.

  4. Your video about the copyrights and trademarks was so interesting. I really loved it and learned so much from it. Thank You for sharing that information,. Everyone should watch it. I watched with a full screen. It looked like you were looking into my eyes while talking. LOL
    You answered any question I may have had. Thank You so much.

    Now for the next questions. I know bakers who bake from their homes. I know these are not the cleanest bakers. They do sell their cake goodies around town. My question is. What is the law on selling your goodies to people whom you don’t know, baked from your own home? And when is it ok to advertise your baking either on line or on print? (such as on Craig’s list, E-Bay, newspaper or flyers) My question also includes selling the royal flowers or figures. In case laws differ, I am from California.

  5. just to clarify – i buy your book and I want to make your optical illusion cake for my friends birthday. I can’t use your exact illusion – i have to come up with a different pattern, or use the same pattern and put some kind of disclaimer on the table beside the cake stating that this is not my design but one used from Wicked Goodies Cake Decorating with Modeling Chocolate by Kristen Coniaris? How about if I watch a you tube tutorial and use the techniques or design of that instructor – same thing? Or what we are speaking to is my PUBLISHING a picture of one of your cakes, saying, look what I made? Thanks for your response.

    • I am going on record saying that nobody has to ask my permission to recreate my designs.

      Copyright applies to publishing photos online or in some other “fixed tangible medium.” It does not apply to what guests at the party see and consume. So you do not have to put a placard or anything like that.

      Just stay out of the red zone and you are good to go.

  6. Does this apply to people who just bake for family? No cake sales, no blogs or sites etc.? Just sharing pics of the parties and cakes on their personal FB page?

  7. As always GREAT material and information!

    I made an Optimum Prime Transformer cake for my grandson that was based on several photos in Pinterest. I knew what I wanted to do but just wanted to get ideas of what others had done. It wasn’t sold but I guess I shouldn’t put it in my portfolio (which it isn’t) unless I go back to those photos and state where I saw it and got the inspiration from.

    Which would mean … all the Frozen, Ninja Turtle, Dr. Who, Paw Patrol, Minions … I could go on forever … cakes I’ve seen at bakeries and online in Pinterest and cake blogs shouldn’t have even been sold or advertised since I’m assuming those companies do not give permission for these cakes? Something to think about.

    I do disagree about the cake photos from books you’ve purchased. I think that’s what you pay for — copyright use. However, I do agree that it’s just good etiquette to state the inspiration was from that book.

    Thanks again for all the great information! 🙂

    • Hey Gina,
      I agree, it’s curious how much stuff is out there. I think the prevalence of it speaks to the low level of concern that most trademark owners have, I am guessing because those types of cakes act as a kind of free publicity for their brand. Moreover, those companies have much bigger fish to fry. However the prevalence of those images does not give permission to do the same. It’s just that the internet is still so new and in some ways, is like the wild wild west.

      Gosh. Remember when we used to have a own a book or ask a friend for dessert recipes and ideas? Gone are the days of recipes holding great personal or monetary value.

      As for the book thing, we need only look so far as the copyright notice to be sure. But it’s more there to protect wide, unauthorized distribution (like mass photocopying). I think authors are most concerned about what fellow authors might do with the material. We have seen a huge uptick in plagiarism what with the rise of bloggers, many of whom disseminate book material without citing attributions. However a lot of bloggers don’t make money, they just reduce the value of books in a way that is difficult if not impossible to calculate. This is another aspect of the internet that is like the wild wild west.

      I have so much cognitive dissonance when it comes to this sort of thing. On the one hand, as an author, I find it frustrating. On the other hand, as someone who consumes blog content, I am delighted to have all this free information, ideas, and designs at my fingertips. If we didn’t live in a currency-based society, none of it would matter. But it’s the limitations themselves that force us to innovate, and that is a good thing.

  8. As usual, very informative and love the add-ins!
    You teach with a spark that keeps me coming back. I enjoy your videos and work! Thanks for sharing!

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