1. Many customers ask for character-type cakes and cookies. Can I legally reproduce these characters on my baked goods?
Using another person’s design without their permission risks infringing on their intellectual property rights, including their copyrights, trademark rights, and personality rights.
2. How can I tell if an image is copyrighted or trademarked?
You should assume an image is protected unless you learn otherwise.
3. Can I reproduce the characters if I change one or two details? For example, if Mickey Mouse was wearing blue pants instead of red pants?
Not legally – unless the copyright and trademark owner authorized such use.
4. If I can’t sell products bearing these images, is it ok if I make them for free for my kids or friends and family?
This is a trickier question. Trademark law generally is not implicated if there is no use in commerce, i.e., use in connection with a sale or distribution to the general public.
5. What is the penalty if I get caught?
You could be sued. An artist’s image, a famous brand, or a celebrity’s likeness is an important way how artists, trademark owners, and celebrities earn a living.
6. Why would a big company care about what one little baker is doing? Don’t they have better things to do?
It’s not fair for that baker to profit from the company’s intellectual property. Beyond that, a big company that allows its brand to be used on cakes without its permission risks having its trademark rights become eroded over time.
7. Why would they try to stop someone from making cakes with their characters? Isn’t it just free advertising for them?
It’s said that imitation is the sincerest form of flattery. But using an artist’s work or a trademark owner’s brand without their permission is closer to stealing.
8. I see other bakers making cakes like this all the time. How come they can do it and I can’t? I will lose business if I turn down these orders.
It’s just a matter with complying with the law.
9. What is the big deal? It’s just cake, it gets eaten in the end. I’m not hurting anybody by making a cake that makes a child happy, am I?
You’re lucky to be in a business that makes people happy!
10. How can I get permission to reproduce these images?
You need to talk to the rights owner. That means the artist, trademark owner, or celebrity’s representative.
11. Would I stay out of trouble if I made a generic-looking cake and purchased a licensed topper, or toy, or edible image to place on the cake or cookie?
Probably. In general, a rights owner’s rights end after the first sale is made.