Mickey Copyright!

[ast124]

Hi!

I was wondering if the Mickey Mouse icing decorations that are available online and in Michaels stores/party stores can be used on cookies/cupcakes and sold to customers? Or is it a copyright violation? Does it come under the First Sale Doctrine?

https://www.wilton.com/disney-mickey-mouse-clubhouse-icing-decorations/710-7070.html

Since I am not making the Mickey Mouse Disney character myself, does it still violate the Disney copyright? I would like to buy these in bulk, since I have a lot of customer demand, but don’t want to violate copyright.

Please let me know! Thanks!

 

[Zigner]

Hi!

I was wondering if the Mickey Mouse icing decorations that are available online and in Michaels stores/party stores can be used on cookies/cupcakes and sold to customers? Or is it a copyright violation? Does it come under the First Sale Doctrine?

https://www.wilton.com/disney-mickey-mouse-clubhouse-icing-decorations/710-7070.html

Since I am not making the Mickey Mouse Disney character myself, does it still violate the Disney copyright? I would like to buy these in bulk, since I have a lot of customer demand, but don’t want to violate copyright.

Please let me know! Thanks!

US Law Only.

Yes, you would likely be violating the copyright held by Disney - and they can aggressive in protecting their rights. Contact them about licensing options.

 

[Mass_Shyster]

Good question. I don't know the answer. I'm just posting to tell the others that wilson is a well known supplier of cake decorating supplies. I suspect OP has no connection to them but as a customer. I seriously doubt he or she is "spamming" the site with wilson stuff.

 

[quincy]

Hi!

I was wondering if the Mickey Mouse icing decorations that are available online and in Michaels stores/party stores can be used on cookies/cupcakes and sold to customers? Or is it a copyright violation? Does it come under the First Sale Doctrine?

https://www.wilton.com/disney-mickey-mouse-clubhouse-icing-decorations/710-7070.html

Since I am not making the Mickey Mouse Disney character myself, does it still violate the Disney copyright? I would like to buy these in bulk, since I have a lot of customer demand, but don’t want to violate copyright.

Please let me know! Thanks!

First, here is a link to a video created by Professor Eric Faden titled, "A Fair-y Use Tale," which uses Disney movie clips to instruct on what is a fair use of copyrighted material and what is not. It is worth looking at.

http://cyberlaw.stanford.edu/blog/2007/03/fairy-use-tale

The cake decorating sets that you see advertised have either been licensed by Disney or are infringing on Disney trademark and copyrights. The licensed sets will have a notice saying that the decorating sets are for personal use only, which means that the Disney characters cannot be reproduced on products that are for sale to the general public. To sell products with Disney characters without your own license from Disney to do so is an infringement.

What is not infringement is to use the decorating sets to decorate birthday cakes or cookies for your family members. And you can sell the decorating set when you no longer want it, under the first sale doctrine. It is the commercial use of the Disney images without a license that you must avoid.

Good luck.

 

[Mass_Shyster]

The cake decorating sets that you see advertised have either been licensed by Disney or are infringing on Disney trademark and copyrights. The licensed sets will have a notice saying that the decorating sets are for personal use only, which means that the Disney characters cannot be reproduced on products that are for sale to the general public. To sell products with Disney characters without your own license from Disney to do so is an infringement.

Quincy,

OP is pointing to the "Icing Decorations", and not to the pans. The Disney characters would not be reproduced. The package would be opened, and the pre-made Disney character would be placed on a cupcake.

I believe OP may be on the right track with the First Sale doctrine. Since Disney is selling these to Wilson, I suspect they expect these items to be placed on commercial products, as Wilson's target market is cake decorators.

 

[quincy]

Quincy,

OP is pointing to the "Icing Decorations", and not to the pans. The Disney characters would not be reproduced. The package would be opened, and the pre-made Disney character would be placed on a cupcake.

I believe OP may be on the right track with the First Sale doctrine. Since Disney is selling these to Wilson, I suspect they expect these items to be placed on commercial products, as Wilson's target market is cake decorators.

The icing decorating kits are still licensed goods subject to both the copyright and trademark rights of Disney. Goods cannot be sold commercially without a license from Disney.

What cake makers CAN do is purchase Disney toys and top the cakes with these toys. This would be a fair use falling under the first sale doctrine as long as the cakes available for commercial sale do. not use the Disney trademarks or copyrights to promote the sales, as this would imply an affiliation with Disney that does not exist.

That said, Disney vigorously pursues anyone using their rights-protected material so the cake maker is likely to receive a cease and desist and threat of infringement suit anyway.

It is almost always best to avoid using the copyrighted goods and trademarks of big powerful companies with big powerful legal teams.

 

[Mass_Shyster]

What cake makers CAN do is purchase Disney toys and top the cakes with these toys. This would be a fair use falling under the first sale doctrine as long as the cakes available for commercial sale do. not use the Disney trademarks or copyrights to promote the sales, as this would imply an affiliation with Disney that does not exist.

These appear to be similar to Disney toys, but made of sugar instead of plastic and specifically designed and sold BY DISNEY to be placed on top of cakes.

Since these are being sold by Wilton (sorry about the previous misspelling) as well as amazon, I suspect they are actually licensed and not knock-offs.

It would seem pretty strange to me that Disney would produce an item intended to be placed on the top of a cake, then claim copyright infringement when the product is used as intended.

I do not disagree with the warning to avoid the use in the promotion of the items.

 

[FlyingRon]

I'll disagree with Qunicy on this. The courts do as well. If you purchase a material: a sticker, a cake applique, a peice of fabric, there may be a license between Disney and the manufacturer of that material, but that license has no bearing on the downstream customer. The first sale doctrine applies here. You buy it, you can do what you want with it including reselling it. No copy is being made so Disney's copyrights are not being infringed. Just making a product out of another legal product with a trademark on it is not infringement either (even if sold). You do have to be very careful however to not infringe the trademarks in your attempt to place the item in commerce however.

 

[quincy]

These appear to be similar to Disney toys, but made of sugar instead of plastic and specifically designed and sold BY DISNEY to be placed on top of cakes.

Since these are being sold by Wilton (sorry about the previous misspelling) as well as amazon, I suspect they are actually licensed and not knock-offs.

It would seem pretty strange to me that Disney would produce an item intended to be placed on the top of a cake, then claim copyright infringement when the product is used as intended.

I do not disagree with the warning to avoid the use in the promotion of the items.

The product can be used as it was designed to be used - as a cake-topper. The infringement comes from using the cake-topper on a product available for sale to the public. These licensed goods are to be used as directed, the directions of which will generally include a copyright/trademark notice informing the consumer that the goods are for the personal use of the consumer only and that commercial uses require a license from Disney.

I suspect that anyone who uses ANY Disney product on their own product that is available for sale to the public will run into problems with Disney. If the product is advertised as a cake, and does not use the Disney trademark in the advertising, then a notice of infringement may be less likely. But a cake maker should NOT use the Disney trademark to promote the sales of the cakes. Using another's trademark in this way infringes on the trademark holder's rights and needs to be avoided.

 

[quincy]

FlyingRon, the problem comes from using the licensed products to create a new product bearing the trademark of the original. This is not a fair use of the trademark or the copyrighted material.

I posted not all that long ago cases filed against the sellers of clothes made from NFL/NCAA fabrics. The fabrics are licensed for personal use only and the consumer is notified of this on the fabric itself.

It is the commercial use that is problematic, not the personal use for which it is sold.

 

[Mass_Shyster]

FlyingRon, the problem comes from using the licensed products to create a new product bearing the trademark of the original. This is not a fair use of the trademark or the copyrighted material.

I posted not all that long ago cases filed against the sellers of clothes made from NFL/NCAA fabrics. The fabrics are licensed for personal use only and the consumer is notified of this on the fabric itself.

It is the commercial use that is problematic, not the personal use for which it is sold.

There's a case ongoing in Florida (I think) where Disney is suing someone for making knock off cake toppers. I think that these cake toppers may be an effort by Disney to provide a legal alternative to cake makers who receive numerous requests to make Disney themed cakes. There's clearly a market for these.

I looked on all the sites where I found these for sale, and could find no disclaimers that these are licensed for personal use only.

 

[quincy]

There's a case ongoing in Florida (I think) where Disney is suing someone for making knock off cake toppers. I think that these cake toppers may be an effort by Disney to provide a legal alternative to cake makers who receive numerous requests to make Disney themed cakes. There's clearly a market for these.

I looked on all the sites where I found these for sale, and could find no disclaimers that these are licensed for personal use only.

Here is a link to an older thread on NHL hockey jerseys. It addresses the laws involved in creating something from rights-protected material. https://forum.freeadvice.com/sports-arts-entertainment-law-86/selling-reconstructed-hockey-jerseys-legal-506442.html

Again, the problem does not come from reselling what you purchase. You can purchase licensed fabric and then resell it. You are not altering or modifying the product. As soon as you create something with this fabric, you have created a derivative and the right to create derivatives rests solely with the holder of the rights.

With the sale of licensed goods to others, you also need to be aware of the trademark rights of the manufacturer of the goods. The manufacturer (Disney, in this case) has a reputation that is extremely valuable. Their copyrights and trademarks are valuable. If anyone takes the copyrighted material or the trademarks and creates something crappy with them, this dilutes the value of the copyrights and trademarks.

Disney is always embroiled in lawsuits over their rights. It is almost a given that if you use a Disney product to create your own product, you will be sent a cease and desist notice or you will be sued. Right now there are several counterfeit Frozen goods being marketed to the public. Disney does not want to, and legally does not HAVE to, permit these inferior goods from being marketed under their trademark using their copyrighted material.

Maybe the link provided above, which discusses this issue rather thoroughly (although it was discovered late in the thread that the poster was from Canada ), can answer some questions?

 

[TigerD]

The Mouse traps anyone that messes with its cheese.

If you can't afford a six-figure court battle, find your own cheese.

TD

 

[quincy]

The Mouse traps anyone that messes with its cheese.

If you can't afford a six-figure court battle, find your own cheese.

TD

Disney is definitely not a company that takes infringement (real or perceived) lightly. None of the big companies do. They have too much invested in their names and reputations. It takes the rare person who can match the money and legal expertise of these companies to successfully challenge an infringement notice or suit.

 

[ast124]

Thank you all! Appreciate it! Yes, the package does not mention that it is for Home Use only. The Home Use only notice is on the pans, but not on these. Kind of conflicted on what route to take? Do you think contacting an Intellectual Property lawyer would be a good idea?

How much do lawyers charge for giving advice? Haven't done this before!

Edited to add: The package does say that Wilton has license from Disney to make these toppers. It also has the Disney copyright notice on it, saying All Rights Reserved.