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