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

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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

Answers:

MD, Member, California Bar / FreeAdvice Contributing Attorney

Answered 10 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!


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