Copyright infringment

I am a cake decorator and have dealt with copyrighted characters quite a bit, I even know fellow cakers who received cease and desist order from Disney for putting 3 circles of fondant in the shape of a mickey head! Anyhow, I know how to skirt around the copyright laws for cakes (make a cake with all the colors of a them and accesories without actually replicating the character itself, and then have the customer buy a toy/topper with the character...the company that owns the character gets paid, and I don't receive $$ for THEIR character). I was just curious how this applied to face painting? Specifically where spiderman and batman are concerned (since they're so popular w/ the boys), how do you all skirt around this and remain lawful? I was told by Disney's lawyers (they have TONS) that even if I make an "Elmo" and color it purple instead of red and call it Emlo or Purple monster..it's still copyright infringment if it looks anything like their character! So obviously when a kid wants to look like spiderman you're going to do it similar to spiderman...even if we call it arachnid boy or whatever, its still infringment right??? How do you skirt around that and still keep the designs???? Thanks for your help!

I am marking this because I have NO idea---hope someone can have more info!

The way it is GENERALLY skirted is by calling it "Parody" which is easier to get away with provided you do not advertise these parodies in print or on the web. Often you will see characters referred to as "web man" or "Angry Green" or some such, to get around it.

That said, ANYONE can still send you a cease and decist letter- so it is best not to place photo's of copyrighted images on your web site or printed nomenclature- even if they ARE "parodies."

Now, would the mouse have won a lawsuit against your friend? Maybe, maybe not depending on how she had advertised the fondant circles.... BUT would she have been able to defend herself against it?

BTW- in the case of the 3 circles- it was PROBABLY not copyright they were persuing, but Trademark Infringement, which has a much broader easier to meet burden or proof.

This is something that has been discussed many times over the years in our industry( and quite heatedly at times!)I personally do not display any photos of superheros on my website , or the twice a year that i use pictures as a display. I also won't do Disney characters as cheek art when requested. besides it takes too long

Nick and Brian Wolfe went through a years long court battle over this sort of thing because they were selling kits and books and stuff with super heroes and stuff in them. What they told us in the class that I took with them was, court is expensive and generally not worth it for either side with this stuff. If "you" have a problem with what's on my face, I'll wash my face. Basically, their message was, don't worry about it.

Don't display, don't publish... that's my rule of thumb. Sure, I'll paint the spider person, but if I do any of the mouse's stuff it is NOT for pay... competion or fun only.

My main job, is as a mass-market costume designer. I have designed the "official licensed" costumes for many well known characters, including all the superheros, disney, Barbie, Star Wars, Hello Kitty, on and on. These were always for the larger costume companies who pay for these licenses. However....many other smaller clients in our industry ALL do all of these characters and call it something else, like "Storybook Princess" or "Purple Dinosaur". Everyone KNOWS what costume it is meant to be though. Sometimes they're sued, mostly they're not. A copyright design only has to be changed 10% for it NOT to infringe on the licensor LEGALLY. This is very easy to do by a good designer. It's called "paralell designing". You keep the "elements" that make it what it is, you slightly change the elements that don't really matter to the design. After, at a quick glance, the copy will look very recognizable as the character, yet not infringe LEGALLY. Of course, the licensor can still try to scare you. I was once asked years ago, to design a lookalike for a famous stuffed animal. Tonka Toys tried to sue and it actually went to court (the client, not me, as I sell all rights, which makes, legally, the "client" the designer). My client wasn't mad at ME, it happens all the time in our industry. He spent over $200,000 in court. Tonka said I had "parellel designed it". In the end they lost and had to pay my client all the money back plus more. Most will NOT go to court, they'll just ask you to stop using it. I also had an airblown lawn ornament of Santa sued - that one was ridiculous, as you can't make a santa without a red suit. They lost too. And...my own designs have been stolen if they were good sellers. One famous lingerie company took 3 of my designs and put them in a full page ad in a big trade magazine. The biggest point is DON'T CALL IT BY NAME!!!!! Personally, I have dealt with this stuff so much in my 30 years of mass market designing, my opinion is this...no one's really going to care or bother a face painter, unless you're somehow making a national showing and making a LOT of money off it.

I haven't worried too much about it. I've painted for large entertainment companies at a couple big amusement parks in my time and they have all done copyrighted stuff for years and years with no problem. I figure if Disney is going to go after anyone in my area, it would be the larger companies who are making a lot more money on the designs, rather than little ol' independent me. However, I've been told that "the mouse" is the big face painting taboo...nobody paints him!

I paint the characters & make the design look different enough to avoid copyright infringement. I say Spidey Dude. For obvious ones... like the mouse... I paint it, but never display it.

I just got a little worried since I personally know 2 little suzy homebakers trying to sell cakes out of their homes who were presented with legal documents from Disney. I don't want to do anything I know to be illegal either. Thanks for the information guys, I really appreciate it!

Great information... thank you everyone!

Am I going to get sued??? Yesterday our local paper ran a picture of me painting at a festival and they even said I was doing a Hello Kitty face, and they showed the child....You know the face I mean, I'm sure. I'm petrified now that it's in print and in their ONLINE edition, that the Hello Kitty company will crush my dream. I'm losing sleep over it!

At worst, you might get a letter telling you to stop.

I agree. Sanrio are notoriously protective of their big moneymaker, but I can't imagine they'd do more than tell you to stop doing it. It simply wouldn't be worth their while, or their money, to make a big deal about you right now. I'm sure it'll be OK. x

Pinky1249 wrote:Am I going to get sued??? Yesterday our local paper ran a picture of me painting at a festival and they even said I was doing a Hello Kitty face, and they showed the child....You know the face I mean, I'm sure. I'm petrified now that it's in print and in their ONLINE edition, that the Hello Kitty company will crush my dream. I'm losing sleep over it!

I'm sorry you are losing sleep, but congratulations on the great publicity!

LOL yea, two edged sword for sure.

It's not worth worrying about, most likely they won't even notice.

Disney owns Marvel now too....
I personally removed all copyrighted designs from my choices and it feels amazing! It's a challenge now to create original designs and hopefully nobody will miss the superheros and such. Who needs the big D!