Have Your Cake and Infringement Too

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.

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?