Copyright

Andrew Nickerson
Web Site Publishing
10/27/98
pr.2

1. Sally is an 18 year old senior at JHS who will be graduating in 1999. She is planning on joining other students on a trip to Mexico. This event is being organized by students and is not school sponsored. To raise money, Sally decides to bake and sell cakes. Using frosting, she decorates the cakes with designs of well-known Disney characters. She sets up a table outside Albertsons at the Mill Creek Plaza. Her programming teacher from JHS notices her and comments that Sally should check with Disney on using the characters. Upset, Sally says, "Well, fine then," and she packs her things and comes to see you, a recently graduated lawyer, for advice.
Please answer her questions and state your reasons.

(a) Can I use the Disney characters on my cakes?

The use of these Disney characters is limited to non-profit causes. If you would still like to use these designs you would first have to buy them from Disney, or at least the buy a partnership of some sort. I will have to discourage you from further using these designs, or you will be sued by the Disney Corporation.

(b) Isn\'t it like fair use or something since I am doing this for a school trip?

Using the designs for money making programs, even if it is for a good cause. It is not legal for you to use Disney’s characters but if you create your own and copyright them it will be acceptable.

2. Sally decides to sell the cakes at a JHS auction that is raising money for the school-sponsored senior party. She sets up her table with the Disney-decorated cakes and hands out flyers with pictures of the cakes and the Disney characters. Her web publishing teacher questions whether she should be selling cakes with Disney characters on them. Frustrated, Sally responds, "Well, all righty then," and throws a cake at her teacher. Fortunately, he steps out of the way; unfortunately, the cake sales over a railing, down a stairwell where it hits Ralph, causing injuries. Ralph\'s dad, a wanna-be lawyer, sues Sally for copyright infringement. Frightened, Sally comes to you for help. Please respond to her questions.

(a) Why isn\'t this fair use? It\'s a school fundraiser, right?

Your uses are not fair use because you are making a profit off of Disney’s reputable designs. If it is for a school fundraiser, you should have a donation box that would help aid your purpose but you wouldn’t be making money directly from the cakes you have made.

(b) Can Ralph sue me for copyright infringement?

Ralph cannot sue you for copyright infringement because he is not the real owner of these characters. It would be different if Ralph owned part of Disney and their characters but he does not.

3. In order to defray her mounting legal bills, Sally decides to offer her cake decorating services over the Internet. She puts up a web site and posts pictures of her Disney cake designs and offers to make the cakes for a fee of $15. She receives an e-mail from a Disney attorney demanding that Sally cease and desist from using the Disney characters or pay royalties of $3 for each cake sold. In a "flaming" response, Sally angrily denounces the "evil Disney empire" and tells the attorney to "go eat cake." Worried about another lawsuit, Sally seeks your advice.

(a) Those are my pictures. I can do what I want to with them, right?

Technically you can have your pictures of the cakes posted on the internet. On the other hand you are still selling the cakes for profit, and that still is and infringement of their copyrights.

(b) What is a license?

A license is an agreement in which you say that you will follow certain
guidelines and rules. So as long as you are producing these cakes you will need to either pay the Disney company there appointed three (3) dollars per cake sold or risk being sued by the company.

4. Although Sally apologizes to the Disney attorney, Disney refuses to give her a license. Sally then makes up her own design, a neon-blue button-shaped character with arms, legs, and a face. She names the character HotLink. Her advertising of HotLink cakes on the Internet draws no responses. But she does