By Katie Long, Esq.
Reprinted with Permission
The short answer to this question is NO. To sell a cake made using a copyrighted character pan would infringe on the cake pan copyright owners rights. Read on if you would like a more in depth explanation as to why this practice is risky business.
For purposes of this article, cake pans refer to copyrighted character pans (for example Mickey Mouse or Sponge Bob Square Pants) like this Pan.
The law of copyrights was created to encourage creativity. Copyrights protect original creations that are affixed to any tangible form of expression. Examples of creations that are eligible for copyright protection include books, poems, drawings, musical works, pictures, sculptures, sound recordings, and architectural works. Copyright owners have the exclusive right to reproduce their work, prepare derivative works based on their original copyrighted work, distribute copies of their work to the public, publically perform the work if applicable, and publically display their copyrighted work. In general, it is illegal for someone to intrude on any of these exclusive rights without the permission of the copyright owner. There are however some exclusions, including the First Sale Doctrine and the Fair Use Doctrine.
EXCEPTIONS TO THE LAW
The First Sale Doctrine is a concept which says after the first sale of a particular object that embodies a copyrighted work, the copyright owners rights are exhausted and the copyrighted object is free to flow in the stream of commerce. The doctrine essentially allows for resale of the copyrighted object. It is important to note, that the First Sale Doctrine does not get around the copyright owners exclusive right make reproductions or derivative works. When applying the First Sale Doctrine to the cake world, we learn that a baker can purchase a cake pan from a copyright owner (or authorized distributor) and then later sell that same cake pan to another person without violating the copyright owners exclusive rights. However, the First Sale Doctrine does not allow a baker to purchase a cake pan from a copyright owner (or authorized distributor), use the pan to create the copyrighted characters likeness, then sell that character cake to a third party. The sale of the character cake deprives the copyright holder of its exclusive right to reproduce and prepare derivative works of the copyrighted object, as well as their exclusive right to distribute the work to the public.
Another exclusion to the basic principal that a copyright owner maintains certain exclusive rights to their work is called the Fair Use Doctrine. The Fair Use Doctrine allows the public to make reasonable use of copyrighted material without first obtaining permission from the copyright owner. The copyright laws recognize that fair use of copyrighted material may be used for purposes of criticism, comment, news reporting, teaching, scholarship, or research. When applying the Fair Use Doctrine to the cake world, we learn that a cake baker who uses a character pan to create a character cake cannot hide behind the Fair Use Doctrine to sell the cake, because the purpose of the cake sale is profit or pecuniary gain, not any of the fair use exceptions.
CONCLUSION AND SOLUTION
After reviewing the law of copyrights, including exclusions to the law, it is clear that the use of a licensed character cake pan for character cakes sold to the public would constitute copyright infringement. Penalties for copyright infringement can range from $200 to $150,000+, so knowing the law in this area is important.
What can a cake baker who wants to sell character cakes do? The safest route would be to seek copyright permission or license from the copyright owner. This can be a time consuming and expensive proposition, but it is the safest way to avoid being accused of copyright infringement.
For more information on copyrights, visit www.copyright.gov or talk to an intellectual property attorney.