Can a business use a photo of a wedding cake that I baked inan advertisment without my permission?

UPDATED: Apr 24, 2011

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Can a business use a photo of a wedding cake that I baked inan advertisment without my permission?

I baked a wedding cake for a family member. The wedding was held at a Bed & Breakfast. In a recent advertisement, they used a photo of my cake without my knowledge in their magazine ad.

Asked on April 24, 2011 under Business Law, Georgia


MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

Did you have an agreement with the location at which the wedding was held? Did you have an agreement with the photographer or with the wedding couple about the use of your product in photos for commercial purposes? Do you know if the wedding photographer took the photo of your cake or if was a someone at the bed and breakfast or another way the bed and breakfast obtained a photo? If you don't have specific agreements, the fact you made a cake may not be sufficient onto itself to obtain copyright protection. While your cake is copyrightable (the minute something is created and is tangible or viewed with an aid of a device), the issue becomes whether in your situation the work is considered a work for hire, in which case you pretty much don't have the right to bring suit. Further, food itself is not copyrightable so you will lose on that argument as well. Consider working with the bed and breakfast and ask them to place a note somewhere readable and conspicuous that the cake is made from you. Free advertising is always good!

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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