Have Your Cake and Infringement Too

09 September 2009

Today, this Ipper ventured forth into the restaurant world surrounding her San Francisco workplace.  In a corner, French-themed cafe, she spotted this beautiful cake design.

Belle Cake Which, likely not by chance, happens to look a lot like a certain famous Disney princess.  From the brown hair and the full yellow dress with matching gloves and down to the rose in her hand.  There’s hardly a part of this cake that doesn’t look like Belle.

Now, Disney is not exactly lenient when it comes to letting others use the company’s intellectual property, so is this cake a risk?

Off hand, I’d say yes, but there’s a few things we would need to know.  It is possible that some sort of agreement exists between Disney and the bakery to make Belle cakes.  Though it’s unlikely a small bakery has a deal directly with Disney, it is possible that Disney sells Belle cake sets, complete with a license to use and display and the resulting Belle.  A quick search online shows that such cake kits do exist.  However, the Disney kits all appear to feature a plastic cake topper, not a plastic Barbie-like doll.

So let’s assume there is no agreement.  This cake, like so many of these, is probably infringing.  It is an adaptation of Disney’s drawings (and statutes, and everything else they put out in Belle form).  In this case, it’s highly unlikely that the cake would qualify as fair use, especially since Disney is in the market of producing Belle cake kits.  A cake designed like a famous cartoon seems very similar to character costumes of children’s cartoon stars.  If the corporations that own the characters are already going after entertainers for unlicensed costumes, why wouldn’t they go after bakers for cakes?

Comments

5 Responses to “Have Your Cake and Infringement Too”
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Justen said...

Aha! This looks like a kind of inverse dilemma of the "copy cake" post of yore.

As you noted, Disney is very particular about who gets a hold of their content and how much the company gets paid for the license to use that content. So, we know the "Belle" character (in her many forms) is owned, just like Mickey's likeness, by Disney. Affixing that likeness to any object without it being appropriately licensed from Disney would make it liable for copyright infringement. A t-shirt, a wall, a coloring book ... That seems pretty straightforward. Just to make sure, I looked at it another way.

I believe it was concluded that the creator of a cake cannot copyright the actual cake. Theoretically it could be done, but there are too many variables including texture, weight, flavor, colors ... yuck. What people do attempt, is to retain copyrights of the designs of or on the cake. This mainly concerns designs on the cake or maybe even art on top of the cake (e.g. figurines); but in the case that the design of the cake itself could be considered art, I suppose it too could be copyrighted.

I think this cake's design would suffice as art in and of itself, and would therefore fall under the scope of copyright protection. Unfortunately, the cake art blatantly infringes on the copyright held by Disney, and unless proper measures have been taken, as discussed above, this is illegal. If that explanation seems at all redundant, it is due to poor communication.

That said, I want to bring up a fair use question. If this cake was discovered in our Ipper's neighbor's backyard, about to be dissected and devoured by 15 eight year old girls (or Tom Petty et al), would this be an issue? If something is made for the sole purpose of being consumed and not to be exploited through public performance or display, could the princess party get off the hook if brought to court?

September 9, 2009 at 8:18:00 PM PDT
goldenrail said...

Justen, I think in the case of the cake being found in the neighbors backyard, it would not be any less of an infringement. The only fair use factor that could be affected by the neighbor's yard vs. the cake shop would be that of economic harm. The economic harm remains the same since the neighbor chose to make the cake instead of buying a Disney cake kit or buying a cake from a Disney licensed vendor. However, the incident is much less likely to be found out, and the evidence more likely to be missing (i.e. eaten).

A closer question might be, what if the neighbor takes her daughters Belle doll and uses it to make the cake. Does the first sale doctrine save the day?

September 13, 2009 at 3:11:00 PM PDT
Anonymous said...

I am curious. Has cake ever been deemed art. Unless cake has been deemed art then it is not covered by copyright infringement. I would be curious if there are cases on the books of cake being deemed art and therefore protected by copyright infringement. We can assume cake is considered art. I would like to think of my creations as artistic at times, but in the end its food. Heaven forbid i received a plate with three circles of mustard that formed the infamous mouse symbol. Is mustard art too? ;)

I understand edible images are direct copies of copyrighted images. Got that, but a custom made cake sculpted clown fish that looks like nemo, but not sold or referenced as such. Is it nemo or is it just a clown fish. Does disney own the copyright of all clown fish?

Seems to me most people just cant fight the big companies and therefore back down, but do the these big giants really have the law on their side?

Maybe i am wrong, but it just seems to be hard to find real cases that support real infringement when sculpted cake is the medium of choice.

would love more direct case info on the subject. Google just doesnt cut it. :) Great topic.

November 9, 2009 at 7:15:00 PM PST
goldenrail said...

Annon. We also were not able to find any case law on cakes. That's why it makes for such an interesting question.

I am interested to know: why do you say if cakes have not been deemed art they can not infringe copyright? There are many other non-art articles in the world that can be infringing, such as character costumes, party decorations, etc.

I do think you are right though that many people just back down because they are unable/unwilling to fight the big companies.

November 12, 2009 at 10:51:00 AM PST
Kate Baking said...

I just read an article about star wars/Disney suing a baker who sells cakes through ebay for copyright. I think this topic is now becoming more popular and as a baker I have to be extra careful. I was just reading on the 'baking it' blog...

'If you were to buy a licensed topper, edible image or toy this would be ok; as the licensor is compensated from your original payment'. blog.bakingit.com

I've found this a good idea, now when approached for a character cake I will suggested using a licensed item as to make an actucal 'mickey mouse' cake could put me in trouble. Even as a small baker you can't be too careful. I've known a friend have their website shut down before because they were using football team logos, it was only a very small business but somebody saw and decided they to make an example.

March 2, 2016 at 6:05:00 AM PST