Answers to the most commonly asked questions about cookie decorating and copyright, trademark, and intellectual property protection!!
Navigating the world of custom cookies can sometimes be soooo tricky when it gets mashed up against the world of intellectual property rights, copyright infringement, and trademarks!
If making decorated cookies is something you are interested in... you need to learn how to protect YOUR OWN intellectual property as well as protect your business by staying clear of any legal infringement on someone else's intellectual property rights!
I've got the top ten...or eleven-ish of the most commonly asked copyright and trademark questions for cookie decorating - answered by someone who actually finds it interesting to study those very questions!
It's my husband. His name is Stan. He's an attorney. And sometimes he explains things in ways that I don't quite understand. So if there is something you want more clarification on -- email me or leave a comment and I'll have him explain it again...to both of us...in increasingly smaller words. 😂😂😂
There is A LOT of information in this post. If you are looking for a specific answer, click on any the items below to jump to the answer!
What is a copyright?
Do I automatically have a copyright in everything I create?
What does copyright law actually do for you?
Is it ever okay to use or recreate a copyright protected work?
What is a trademark and what is trademark infringement?
TOP TWELVE COPYRIGHT AND TRADEMARK QUESTIONS FOR COOKIE DECORATORS
1. Can I sell copyrighted cookies if I don’t post them on my Instagram or anywhere online?
2. As long as I am not claiming to represent the owner of the copyright or use their logo, I can make any cookie I want without violating copyright law, right?
3. Does it violate copyright law if I make a cookie that looks like Mickey Mouse if it is a GIFT for someone?
4. Everyone sells Disney princess cookies, why can’t I?
5. Then why do they even make cookie cutters that look like Cinderella?
6. I’ve heard that if you change two things, you’re okay. For instance, if I make Mickey Mouse with green pants and star shaped buttons, I’m okay, right?
7. Can I make a cookie that looks like Mickey Mouse if I change the colors?
8. What if I say, “INSPIRED BY Disney’s Cinderella.” Does that make it okay?
9. What if I buy the Clipart or image online?
10. How do I go about asking for permission?
11. I heard that copyright only applies to fixed objects. Since cookies are eaten, I’m not violating copyright, correct?
12. How do I know if something is copyright or trademark protected?
How do I tell my customers I can't make cookies from copyright protected images?!
Does this apply to cookie designs?
READY??!!
Hello blog world. I am Georganne’s husband. While Georganne is the creative genius, I am the somewhat dry attorney. I have helped several cookie decorators, including Georganne, with copyright and trademark issues and I run across many of the same questions. In this post I will cover the most common questions I get asked.
Now for the legal disclaimer:
This blog post is intended to discuss general legal principles. Nothing in this blog post creates an attorney-client relationship. No two situations are the same.
This blog post is intended to discuss general legal principles. Nothing in this blog post creates an attorney-client relationship. No two situations are the same.
THIS IS A COMPLEX AREA OF LAW WITH MANY VARIABLES. IF YOU HAVE QUESTIONS OR CONCERNS ABOUT A SPECIFIC INSTANCE YOU SHOULD CONTACT YOUR ATTORNEY.
Now that the disclaimer is out of the way, it’s helpful if we start with some basics. Copyright and Trademark are two subcategories of a larger area of law—Intellectual Property (or “IP” law for short). IP law covers many different topics, but copyright and trademark are the two that most often affect cookie decorators.
What is a copyright?
Copyright law protects your original creations that are fixed in a tangible medium - like your icing designs on a cookie, drawings, writings, videos, and photos. A “copyright” means you have the sole right to copy your work. That protection includes the right to distribute copies, display them publicly (like on a website), and to make derivatives or adaptations of the work.Do I automatically have a copyright in everything I create?
Let’s take the typical example for most of you. You just created your most recent masterpiece, took a picture of it, and posted it online. Does that mean you can start winning lawsuits against anyone who uses your design? Probably not. There are a few things you have to do to have copyright protections:
1) You must “fix” your creative expression in a “tangible medium of expression.” This can be a photograph posted on your blog, icing on a cookie, a picture printed on a t-shirt, or just about anything. Your blog, the cookie, and the t-shirt are all tangible mediums of expression. Basically, if it is an idea floating around in your head, there is no copyright protection. Once it leaves your brain and makes it onto something that others can see or hear (whether it lasts forever or for just a few days) it is fixed in a tangible medium of expression.
2) Your work must be original. If you are making a cookie that looks just like a Disney princess, you probably don’t have any protection under copyright law because you are violating someone else’s copyright.
3) It must include some minimal quantum of creativity. This doesn’t take much. But, the more creative, the more likely you are to be protected. For instance, if you take a heart shaped cookie and simply flood it red, you’re not likely to have much protection under copyright law.
If you meet these requirements, you have a copyright. However, in order to take legal action against someone who is violating your copyright, you typically must register your work with the United States Copyright Office.
What does copyright law actually do for you?
Let’s say you created a new cookie design that is unique and new. You post it online and then, as often happens, someone copies your cookie and posts it on their website.
Can you force them to stop? Typically, you have to register your design with the U.S. Copyright Office to be able to sue someone and force them to pay you for using that design.
But, that’s not the only time you can force someone to pay.
If someone steals your picture, removes your watermark, and then posts it on their website, there’s a good chance they’ll end up having to pay you. This isn’t a complete list of copyright protections, but it’s a good start for cookie decorators.
Is it ever okay to use or recreate a copyright protected work?
There are generally only a few times that you can use a copyrighted work.
First, if you receive permission from the copyright owner.
Second, if their copyright has entered the public domain, meaning their copyright has expired (this is not always easy to determine and is a whole blog post in itself).
Third, if your use of the copyrighted work is considered “fair use,” you are safe. The problem is that determining whether something is fair use is anything but clear cut.
There are four things that a judge weighs when determining whether it is a fair use:
1) the purpose and character of your use (are you selling your copy or is it educational, informative, etc.);
2) the nature of the copyright work (is it factual like a dictionary, or fictional like Harry Potter);
3) how much of the copyrighted material are you using? (the less you use, the less likely that you are violating copyright);
and
4) the effect of the use on the potential market (is your use likely to harm the owner’s ability to sell a product). Here is a great article on the factors of fair use.
One big thing to remember—You do not have to be SELLING copyrighted materials to violate someone’s copyright. If you copy it without permission, you have probably violated their copyright.
What is a trademark and what is trademark infringement?
Trademark law protects your brand. A trademark can be a symbol for a company (think of the Nike swoosh or the golden arches of McDonald's). It can also be the name of your business (like the word “Nike”).
If you slap the word “Nike” or the famous swoosh on the side of some sneakers that you just made and then you try to sell those sneakers to someone, you have violated Nike’s trademark.
In order to violate someone’s trademark protections, you have to:
1) use their trademark or a close imitation of their trademark,
2) without permission from the owner,
3) in connection with the sale of goods or services,
and
4) your use of the trademark is likely to cause confusion as to whether the actual owner of the trademark is selling the goods or services. Like copyrights, it is best to register your trademark with the U.S. Patent and Trademark Office if you want serious protections.
Now that the definitions and basics are out of the way, let's move on to the top questions I hear asked about cookies.
TOP TWELVE COPYRIGHT AND TRADEMARK QUESTIONS FOR COOKIE DECORATORS
1. Can I sell copyrighted cookies if I don’t post them on my Instagram or anywhere online?
The question here is not whether the cookies violate copyright law (because they probably do), it is whether you are going to get caught.
Almost everyone one of us breaks a law every day. When was the last time you drove your car faster than the speed limit? Probably this morning on your way to work. Did you get pulled over and given a ticket? Probably not. Does that mean you didn’t break the law? No, it just means you didn’t get caught.
If you don’t post your cookies online, it is less likely anyone will notice that you violated their copyright and send you a nasty letter asking for $1,000. But that does not change the fact that the cookies infringe on someone’s copyright.
2. As long as I am not claiming to represent the owner of the copyright or use their logo, I can make any cookie I want without violating copyright law, right?
Wrong. This confuses copyright law with trademark law. They are two separate and distinct bodies of law and you can get sued under either or both of them.
If you are trying to pass your cookies off as being created by “Disney”, then you are probably violating trademark law.
But none of that really matters when it comes to copyright. You can say, clear as day, that you are not affiliated with Disney. But if you make a cookie of a Disney princess, then you are probably violating Disney’s copyright even if you aren’t violating their trademark.
3. Does it violate copyright law if I make a cookie that looks like Mickey Mouse if it is a GIFT for someone?
Unless you have been given permission by Disney, it is probably a violation of copyright law.
Remember, you can’t use someone’s trademark if you are going to sell it.
But, under copyright law, the fact that you aren’t selling your cookies does not necessarily mean that you are in the clear.
This is a little complex because of the “fair use” exception to copyright infringement. Whether you made money selling the cookies is just one of four things that a court weighs to determine if you are infringing on Disney’s copyright.
If you aren’t selling your cookies for a profit, it is less likely that you violated Disney’s copyright, but that’s not a guarantee. Without getting permission from Disney to make the cookie, there is no way to be safe. (Again, read THIS ARTICLE if you want to know more: )
That’s not to say that this wouldn’t have any bearing in a lawsuit. If you made $500,000 selling Mickey Mouse cookies, you will probably end up paying a lot of money to Disney in a copyright lawsuit. If you made the cookie for your 80-year-old neighbor’s birthday party and didn’t make her pay, you will probably pay a lot less to Disney if you actually violated the copyright.
4. Everyone sells Disney princess cookies, why can’t I?
Great question. Everyone else is either violating Disney’s copyright or has received permission from Disney (which is called a license). It’s as simple as that.
They might never get caught. Or, they might end up paying a boat load of money to the copyright owner five years from now. The only way to safely make cookies of a copyrighted image is to get permission from the owner of the copyright.
5. Then why do they even make cookie cutters that look like Cinderella?
Does the company you are buying that cutter from have a license to sell the Cinderella cookie cutter? They might be violating Disney’s copyright by making them. If an off-brand company is selling you a Disney cutter, there’s a good chance they don’t have the right to make those cutters. And they can’t give you permission to make Cinderella cookies when they don’t even have that right themselves.
You can always ask the company if they have a license from the copyright owner, and what rights you have if you buy that cutter, but most of the time they probably do not have a license.
I can already hear some of you saying, “But what about when Disney sells them?”
Obviously, the owner of a copyright (Disney in this example) can sell just about anything it wants that looks like Cinderella.
The question you have to ask is, “what has Disney authorized me to do with this cookie cutter?” Just because they sell the cutter does not mean that you can start selling Cinderella cookies in front of Disneyland. You might want to spend a little time reading the package you just bought.
When Disney sells a cookie cutter, they can limit what you get to do with that cutter. This is called a limited license. For instance, it might say, “For home and personal use only. No commercial use.” That means that you can make cookies for your family, but you can’t sell those cookies (no matter how hard you try to find a work around). The only solution is to stop selling those cookies, ask Disney for permission to sell your cookies, or make and sell your cookies without permission and risk having Disney come after you (which it is notorious for doing). In short, read the fine print.
6. I’ve heard that if you change two things, you’re okay. For instance, if I make Mickey Mouse with green pants and star shaped buttons, I’m okay, right?
Wrong. At least, most of the time. To be safe it has to be a “fair use,” which usually means it must be “transformative.”
Essentially, if someone were to look at your cookie, would they say, “That’s Mickey Mouse”? If the answer is yes, then you have probably violated Disney’s copyright -- unless you’re using it for some sort of social commentary or other fair use—again, read THIS LINK for more information.
If most people would say, “That’s a cartoonish looking mouse,” but Mickey doesn’t come to mind, then you’re probably safe. There is no magic number of things that you have to change to make it okay.
7. Can I make a cookie that looks like Mickey Mouse if I change the colors?
Probably not. Again, a judge would ask, “Is this transformative, or is this a derivative?” If it looks like Mickey and it smells like Mickey, it’s probably Mickey.
8. What if I say, “INSPIRED BY Disney’s Cinderella.” Does that make it okay?
No. Copyrights prevent you from making any “derivative” of their specific Cinderella. In general, that means that if it looks like Disney's Cinderella, a judge would probably treat it as if it were Disney's Cinderella. Giving the person credit does not change the fact that you used their intellectual property without permission.
It's worth mentioning that Cinderella, Rapunzel, and many of the Disney movies were STORIES before they were movies. The STORY of Rapunzel has entered public domain. But the Disney IMAGES and MOVIES are protected. You can make a cookie of a girl with really long hair and a tower. But she can't look like the girl in Disney's Tangled...or you're in trouble.
9. What if I buy the Clipart or image online?
This is pretty much the same thing as buying the Cinderella cookie cutter. To be safe, you’ll have to bite the bullet and actually read the fine print. Does it say that you are allowed to make replicas and sell them? Then you’re probably okay.
Does it say, “for non-commercial use only”? Then you can probably make them and give them to a friend, but you aren’t supposed to sell them. And no, “giving” the cookies to your friend and then charging them a $150 delivery fee does not get you around this restriction.
There is a classic legal test that works in most instances—if it smells bad, it’s probably bad. If you are spending a lot of time thinking of ways to get paid without calling it a payment, a judge is probably going to see right through it.
10. How do I go about asking for permission?
Every company is a little different. Bigger companies often have in house attorneys. Sometimes their contact information is posted on their website. Sometimes, they might even have an intellectual property contact person on their website. Those are two good places to start. Call them or email them and see if they’ll let you. It’s not always fun, but it’s the only way to make sure you are safe.
And if they say no? Unfortunately, you’re out of luck. It’s the same thing as if your friend says, “No, you can’t borrow my car.” You could take the car anyway, but then you would be on the wrong side of the law.
(This is Georganne for just a second. Don't be afraid to let your customers know if the images or designs they want are copyright or trademark protected. In fact, you can let them decide if THEY want to ask for permission - in writing - for you to make the cookies, or if they just want you to make a different design. When you put the burden on them to acquire the permission from Disney or Harley Davidson, it relieves you from the pressure of satisfying their demands, when you legally can't do what they are asking. I KNOW it's hard to tell a customer that you can't do what they are asking!!)
11. I heard that copyright only applies to fixed objects. Since cookies are eaten, I’m not violating copyright, correct?
Wrong. It just has to be fixed in any kind of medium whether temporary or permanent - cookie, painting, advertisement, movie, or even printed on individual squares of toilet paper. If it has left your brain and made it onto something that others can see or hear, it’s fixed on a tangible medium.
This area of law can get pretty detailed and each situation is a little bit different. These are just general statements of the law. If you have specific questions, you should contact an attorney that practices copyright and trademark law.
12. How do I know if something is copyright or trademark protected?
The first place to start is by looking for the registered trademark symbol. If that isn't on the logo, the next place to look is on the website for the United States Patent and Trademark Office. This is not as simple as Google, but if you spend a little time in there and learn a little bit about Boolean search terms, you can often manage on your own. I would start with the "Basic Word Mark Search." If that fails, or you are about to start a serious business venture using something that might be trademarked, it is probably worth hiring an attorney to do a trademark search for you and to trademark your logo.
The United States Copyright Office also has a search engine to look for copyrighted material since 1978.
It can be time consuming to research if something is registered. Here is a list of a few items that it is probably safe to assume are either trademarked or copyrighted:
- College and professional team logos
- Every feature length film, animated movie, or other video produced by a large company (Disney, Warner Bros, etc.)
- Most animations, graphic designs and photos you find online
- Books and anything in that book
- Video games
- Most company logos
- Just about any visual design created by a large company
It's Georganne again here. Are you still with me? That was A LOT of information. I hope your brain isn't melted. Legal things can be crazy confusing, but it really is super important to protect yourself and your business!!
How do I tell my customers I can't make cookies from copyright protected images?!
Let's talk for a minute about your customers. Because you just read this information...and they didn't. Here are some examples of the wording I use with my own customers.
Customer: I'd like to order some copyright protected designs.
Me: I actually can't put those designs on cookies because I have to follow copyright laws. But I'd love to make some coordinating cookies with the same colors. Do you have an invitation or party decorations I can pull colors and inspiration from?
(Ending this dialogue in a question that is easy for them to answer helps move the conversation...and the order. If you end it after saying you can't do their chosen designs...it has a negative tone...even though you are suggesting an alternative. Keep things positive and proactive.)
Customer: But I really want that college/sport team/animated design on these cookies. There must be a way.
Me: I can see how important this it to you. Unfortunately, I don't have permission from college/sport team/animated design creator to replicate their copyright protected designs. But if you would like to approach them about getting permission in writing for me to make these for you, I would LOVE to make these cookies! Let me know if you'd like to try to get permission, or if you'd rather continue with an "inspired by" set of cookies -- I promise they will be fantastic either way!
Customer: But I see companies making copyright protected designs ALL THE TIME. Why won't YOU?!
Me: Legally, I'm not allowed to recreate copyright/trademark protected images on cookies. I love my customers and the cookies I get to create for them! I definitely don't want to jeopardize that. Are you interested in some coordinating cookie ideas?
I use THIS SET of Arabian Princess cookies to illustrate "coordinating" or "inspired by" cookie designs. You are welcome to use it to help your customers understand as well. But if you get a lot of requests for copyright/trademark images -- I highly encourage you to make a sample set of "coordinating" or "inspired by" cookies for your most requested themes. It really helps people to understand that you aren't just talking about a bunch of red, yellow, and black balloon shaped cookies.
Does this apply to cookie designs?
There have been a lot of questions already about cookie designs. Technically... people who have created original works (even cookies) hold basic rights that allow only themselves to copy their work. The cookie community as a whole has been very generous and most decorators allow and are flattered that another decorator is inspired, appreciates, and/or would like to re-create their designs.
It's ALWAYS best to ask for permission before copying something someone else has created.
I GIVE MY PERMISSION FREELY to use all of my designs as inspiration or to copy directly on your own cookies. I have an entire post giving you permission and answering more design copying questions HERE.
I also asked EIGHT EXPERT DECORATORS how they feel about design copying and crediting and you can find their answers HERE.
