Copyright cops crack down on cooks over cakes

Clay Shirky says:

Here's the sign I saw yesterday morning when getting the daily bread at College Bakery, our beloved local purveyor of pre-Atkins goodies.

Now the decor and ambience of College Bakery are echt Old Brooklyn, so it's an unlikely front in the copyfight, but the staff said they had to bust out the magic markers because they'd been roped in as the front line of defense against non-licit images of Dora the Explorer® and Thomas the Tank Engine®. I was struck enough by the sign to Flickr it immediately, and it's stuck with me since then, for several reasons.

First of all, disappointing children is a lousy tactic for a media company. If a child loves Nemo so much she wants a clownfish birthday cake, it's hard to see the upside in preventing her from advertising that affection to her friends. Second, and more worryingly, this is the very sort of chilling effect that has always been recognized as a significant risk in First Amendment protections. How cool would it be to do a drawing with your kid and have it show up as a cake the next day? Well forget it.

What College Bakery is saying with that sign is "The risk of being sued is so high that we'll give up on helping paying customers create their own cakes." This is Trusted Computing for frosting.

Creativity, in this world, is for Trained Professionals, whose work is owned by BigCos. Loss of amateur creativity is a small price to pay for protecting commercial IP holders. Finally, and perhaps most revealingly, the industries fighting for encumbrance of digital IP have often raised the 'restoring analog balance' argument, which is, roughly: "The natural difficulty and generational loss in analog copying made cassette tapes and VCRs bearable. We just want to bring those checks to digital copying." And yet this case -- printing a digital image on a cake -- has exactly those checks, since the image is designed to be eaten by children within hours of its creation. No risk of unlimited copies. No longevity issues. No easy transition to other media. And what happens? The same grab for total control, and the same weak regard for side-effects on non-commercial creativity. The 'analog balance' argument is, of course, a lie. Those industries have fought for total control wherever they have been able to, questioning the very existence of core public rights such as fair use or limited copyright terms, and the magic-markered sign at College Bakery is yet another example.

As Cory said "There are days when the gormlessness of the other side of the copyfight generates a great deal of unintentional hilarity." Now this is more sad than hilarious, but when the control grab extends to the enlisting of neighborhood bakeries in disappointing children for the making of one-off and short-lived copies, the gormlessness quotient is running high.


Counterpoint: Comments from Boing Boing reader Tshaka, who is a law clerk:

I am no fan of the RIAA, and some of the stances big companies take on copyright. With that said, I find a lot of the posts on copyyright issues to be myopic. Companies don't run around trying to enforce their copyright because it brings them joy, they do it because they have to. Once a company allows people to use an image or trademark without their permission, it can quickly slip into the public domain. If they allow this to happen, they lose all control over that image forever.

Companies spend a lot of money not only developing characters like nemo, dora the explorer and thomas the tank engine, they also spend a lot of money so that kids will want to put those characters on their birthday cakes.

I'm fairly sure that College Bakery wasn't giving away their cakes for free. They weren't just providing a nifty service to tykes, they were profiting on the efforts of others. I have serious problems with the Recording and Movie industry making it difficult for people to use their product fairly, but what you have here is one company (even though it is a small one) stealing from another company (even though it is a large one). Telling College Bakery to stop using their images without their permission isn't just an industry fighting for total control wherever they have been able to, questioning the very existence of core public rights such as fair use or limited copyright terms...,

College Bakery's use wasn't fair use. Conflating it with fair use doesn't help the argument. This isn't a creativity issue. I am sure College Bakery would be allowed to negotiate with each of the companies involved to pay for the right to SELL the image those companies created. Its called licensing, and companies love to do it, not just for the money involved, but for the extra goodwill it can create for their product.

(To put into context there are probably companies that paid a lot of money for the right to put those images on cakes, and by not paying for the right not only was College Bakery infringing on the copyright holder, it was unfairly competing with companies that obeyed the law.)

(An example of the effect of not enforcing your copyright is what almost happened to Xerox. For years everyone called a photocopy a "xerox copy." Instead of being a brand name, their name was turning into a generic term. If Xerox had allowed that to continue, it would have lost the right to enforce their copyright on the name of their corporation! All the time, money and effort spent building up whatever goodwill they had associated with their name would have been lost because of their lack of diligence. Companies can lose control of images in the same way.)

Boing Boing reader RYaN says:

Tshaka is wrong that companies "have to" defend copyright, or risk losing it. That's only true for trademarks, as the Xerox example illustrates. Xerox couldn't have "lost the right to enforce their copyright on the name of their corporation" because it's not possible to copyright a company name at all! That's a trademark, which is governed by completely different rules.

Ben Giddings says:

Trademarks must be enforced or they risk becoming generic, and not protected. This isn't the case with copyrights. The issue with the cakes is really a trademark issue, not a copyright issue. The cake-makers aren't copying a particular "Dora" or "Thomas" image, they're making original creations using that character.

An example is the common sight of Calvin (from the Calvin and Hobbes comic) pissing on various logos, etc. Bill Watterson never made any cartoons with Calvin peeing on things, so this isn't violating his copyright. It is, however, using the character he created (and presumably trademarked) to sell stickers.

There's a big difference between selling these Calvin stickers and selling cakes. It's really about who is choosing the images. On one side there's someone creating Calvin look-alike images and trying to sell them to everybody. On the other side there's a bakery that makes cakes to order, and is now being forced to judge whether or not the person asking for the cake has the intellectual-property rights to make that request.

And Tshaka replies:

RYaN is absolutely right. I have crossused terms that do not mean the same thing and possibly added to some confusion. (In my defense, it often appears that discussion in this forum generally refers to all intellectual property issues as "copyright issues," in deference to the discussion I didn't make a sufficient effort to discuss the difference for an audience that is probably not as interested in the minutia of legal terms of art as I or others might be.) As right as RYaN is, however, about my misuse of the word he has also entirely ignored the point I attempted to make. Whether trademark or copyright, College Bakery was taking the intellectual property of other people and selling it to gain a profit (I am fairly comfortable in asserting this because I am pretty sure that College Bakery wasn't offering to put any image you bring in on any cake you bring in for free, THAT would have arguably been fair use, if this assumption is wrong I would love to be corrected). Now that RYaN has so carefully addressed my poor (and arguably lazy) semantics, I would be pleased for him to address my arguments.

Glenn Fleishman says:

See also this Brad Templeton essay on copyright myths -- Link.
It's a classic in that it exposes fallacies so completely that I often won't begin to discuss copyright without reviewing it and often refer those who want to make what appears to be a broken point (such as this law clerk--obviously not a copyright law clerk) to the essay without further comment. In this case, point 5 is the right one to read. Brad should be well versed on copyright as the founder of ClariNet, which brought us early Dave Berry over Usenet, and other wonderful informational services and ideas.

Patrick Fitzgerald says:

One simple workaround is to buy a plain white frosted sheet cake, have the photo frosting shipped right to your door, then lay it on top of the cake yourself. I don't know if they perform a copyright check (like recent reports of WalMart photo processing), but Club Photo is one Internet store that offers this service.

And a final reader comment in this looooong thread, from the EFF's Jason Schultz:

As an actual copyright and trademark attorney, I feel this sort of discussion highlights exactly where our notions of "property" and "culture" cause confusion and tension between what the law is, what our intuition is, and what we wish the world was like. Most of us probably wish that we could easily go into our local bakery with our favorite comic or cartoon character and have it put on a birthday cake for our child or best friend. Sure, we wouldn't mind paying a bit more, if it were easy and relatively cheap. However, because the copyright maximalists have been able to frame copyright in terms of "property", this reality is increasingly difficult to achieve. Property rights are generally thought of as absolute and impenetrable, e.g. my favorite San Francisco anti-parking sign that says "Don't even *think* about parking here!"

Yet kids love culture, as we all do. And their love of copyrighted and trademarked characters helps make those characters valuable, just as the creators' inspiration and skill have. Consider if no child loved Dora the Explorer; how valuable would the copyrights and trademarks in the character actually be? Not very. Yet the love and obsession of fans do not garner any "property rights" in the character or any rights at all, according the maximalists. Even those willing to pay to use their favorite characters are often chilled from doing so because the maximalists argue they must come and beg permission from the copyright owner or face up to $150,000 in fines for their sins and indiscretions.

Does this mean the creators of the character should have no rights?

Certainly not. But it may mean that they shouldn't have absolute rights. In theory, that is what "fair use" is for, to balance out the rights of the creator with the rights of the public to enjoy that creation, especially in a private world that does not compete with the creators' business. In the case of Dora, that is the making of commercial cartoons and books, not cakes. The fact that Dora is popular on cakes comes from her popularity among her fans, not the skill of the hand that draws her or the voice that speaks her words.

Finally, all too often, we see a perspective like Tshaka's, where the
argument is made that if you don't enforce your rights, you lose them.

Nothing could be further from the truth in this context, even for trademarks (i.e. the only time you lose your trademark is if it becomes generic for the class of goods you sell; no one would ever start calling cartoons "Doras" and birthday cakes aren't even in the same class of goods). What Tshaka is really worried about, it seems to me, is a loss of *control* over the use of one's creations. The idea that someone other than the creator might actually make use of the character without permission is what drives copyright maximalist authors, owners,
and advocates crazy, not loss of rights or even, often, compensation.

It is this battle for control that is at the heart of the copyright wars and little else. From the perspective of consumers and fans, characters like Dora have become part of our lives and we shouldn't be ashamed or intimidated from enjoying that fact, even if it involves putting their image on a birthday cake. From the perspective of the Copyright Maximalists, however, even a "Let them eat cake" policy is far too lenient and infringing of their rights.