In this article, I’m going to zoom in all the way on the topic of “copying” when it comes to cake designs. I’m going to 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.
Copyright Infringement #1
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.
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