STOP COPYING THAT MICKEY, OR WE'LL SHOOT! WHY YOU CAN'T HAVE YOUR CARTOON-CHARACTER CAKE AND EAT IT TOO
(FORTUNE Magazine) – All I wanted was a cool birthday cake for my kid. Stephen, zeroing in on age 9, had passed through phases of fascination with Thomas the Tank Engine, dinosaurs, dolphins, and killer whales. Now we needed a bug--a queen bee, to be precise--buzzing atop chocolate frosting. I'd even bring in a book with a picture to copy, I told my local baker. "No way," he interrupted. "I'm not gonna get sued."
In a world filled with litigation fears, a child's cake seems an improbable casualty. But the owners of cartoon images, such as Disney and United Media, have been cracking down on copyright abuses of all kinds, placing even the humble birthday cake within their sights. Bakeries, it seems, must now keep a list of copyright regulations next to the flour sack.
The law is quite clear: Reproducing copyrighted material without permission in any form--even in frosting--is a violation, punishable by fines of up to $100,000. Yet the notion of trying to catch bakers in the act of swirling Charlie Brown onto a three-layer cake invariably produces chuckles. "Who enforces it--the Snoopy police?" smirks one grocery-chain spokesman.
In a word, yes. Some years ago, recalls Peter Houstle, executive vice president of the Retailers' Bakery Association, United Media retained Baker & Hostetler, the giant Cleveland law firm, to launch an undercover operation to crack down on rogue cake decorators. Agents posing as moms and dads visited bakeries and ordered up various delights decorated with United's characters, which include Marmaduke and Charlie Brown. When the illicitly decorated goods were ready, the undercover buyers paid and took them outside, where they snapped photos for evidence, then returned to slap the offending bakery with legal papers. (Whether they then ate the evidence is a question that has been lost to history.)
United Media officials, not wanting to appear Grinch-like, say they now employ more artful methods. Because of "negative public relations," says Diane Shaib, senior vice president for licensing, "there are instances where, as business people, we choose not to take legal action"--and instead accept a formal agreement to cease and desist. She notes that by failing to take action, a company can forfeit its lucrative copyright rights.
But there are certainly cases where both large and small operators have been iced with substantial fines. Paul Bernish, a spokesman for supermarket chain Kroger, says that about a decade ago his company paid $1,000 and $3,000 after two of its in-store bakeries illegally crafted images of Snoopy and Garfield. Houstle says even mom-and-pop bakeries in his association, after selling a few dozen illegal $20 cakes, have made payments as high as $5,000.
Disney also low-keys its copyright-defense efforts. Spokesman Ken Green says that to his knowledge, the company has filed no formal copyright actions against bakeries, relying instead on cease-and-desist letters. "We generally don't discuss these matters," he quickly added. But the Mouse Kingdom has clearly done its share of fork rattling on the issue. "The word is apparently not getting across to some in your industry that the unlicensed, unauthorized reproduction of copyrighted characters is a serious, automatic violation of federal copyright law for which the bakery can be liable in hundreds, if not thousands, of dollars of statutory damages for each character infringed," a Disney attorney warned Houstle's group in a May 1995 letter. "A bakery, for example, which draws a Disney character on a birthday cake will be liable for copyright infringement and is subject to suit by us."
So what's a parent to do? First, it's fine for a bakery to adorn a cake with any nonlicensed image. A dinosaur's okay; Barney's not. Your little critter wants to see the real thing, just like on TV? Many bakeries now carry inexpensive licensed products, edible and not, bearing popular images for use on cakes. Not creative enough? There is a high-tech solution: the Sweet Art Jet Decorating System, a $11,000 computerized contraption that scans in a photographic image (noncopyrighted, of course), then reproduces it in full color atop butter cream using a special inkjet printer fueled with edible dyes. Because the system is both new and very expensive, only 250 U.S. bakeries use it.
There's also the old-fashioned, albeit still technically illegal solution: Frost Charlie Brown onto your kid's cake yourself, and the
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Snoopy police won't bother to sniff you out.