# legal question



## eeyore (Nov 26, 2000)

Hi, As some of you may know I recently quit my job to spend more time in the volunteer work. I gave 1 1/2 months notice. My boss has been quite mean to me since I gave notice...sometimes cruel but mostly just sarcastic. Well, I finished my time, however I did agree to work today because they were so busy this weekend. So I just had to get through one more day. But I didn't make it. For the first time in my life I just left. 

Here is the issue: She says that I cant display pictures of cakes I did while working at her shop. As a gift a coworker had set me up a personal site with some pictures of cakes I had done. I have added to it. I added notes to the photos saying the name of the shop where I did them and the name of the owner. If there was any part of the cake that someone else added I said so--with their name. So far I have told mostly family and friends about the site...and a couple of people I know in the industry.

At first I didn't care if she was legally correct or not...I was just hurt that she was being so selfish and vindictive. Ive worked so hard for her...why? When I spent my money and flew to FL and paid $600 to take a class from Colette Peters, and brought back 3 cake ideas we'd never done at the shop, I suggested she display the dummy cakes I brought back with me so maybe she could get some orders off of them. Well, we've done lots of them. Even reproduced one to be published in a national magazine. I was happy for her and the shop. 

So Ive been feeling hurt and angry. But now Im just starting to wonder what the real legal issues are. Do any of you know?

Here are the basic questions:

When working for a bakery, do the owners of the bakery own any ideas or designs you come up with while being paid by them?

Can you legally show pictures of the work you did (while being paid by them) in a public setting ---if you dont own a business? ---if you DO own a business? 

If so, must you give them credit i.e.--say that the work was done while working for them? 

Does it matter if the pictures were taken with your camera or with theirs?

I had permission from them to take pictures of the cakes, does this, then, give me the legal right to display the pictures however and wherever I want?

I once asked if I could have copies of pictures they took of a few of the cakes I did. They said "yes" I asked how I could get them and told them I would pay them. They said that would not be necessary, for me to just tell them which cakes i wanted and they would print out pictures for me. Well they never got around to it. So I just e-mailed them to myself since I obviously had permission to get them. Does the fact that they said I could have copies of the pictures constitute them giving me permission to do what I want with them? i.e. display them on the internet?

I did cakes for them (while on the clock) that have been shown in magazines. Does that make the pictures now "fair game" since they have been shown publicly? Or do I have to get the permission of the mag? I have copies of pictures of the cakes themselves and of the magazines pictures of the same cake.

Can I do a cake on my own that is similar or even identical to one done at the shop?

If so, can I then display a picture of it on my website?

Does wheher or not I have an actual business or am just doing cakes for friends on the side matter?

What if I do work for someone else? Can I use the pictures then?

Does it matter if ANY part of the cake was done by someone else in the bakery besides me?

Thanks,
Eeyore


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## eeyore (Nov 26, 2000)

Oh and some non-legal questions:

How do you feel about the issue? What do you think the right thing is for her to do? and what is the right thing for me to do?

If you are a business owner, what is your personal policy on this issue?

If you are an employee: how would you feel if this happened to you?

thanks again
eeyore


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## foodpump (Oct 10, 2005)

Don't know much about the legal aspect. Seems to me the owner is feeling jilted and p.o'd about you leaving, probably having difficulty finding a suitable replacement too. In the future make the goodbyes as brief as possible. If they ask you to stay on after your notice, you know there's trouble brewing and instead of blaming themselves for not acting quickly, there's always you to blame....

The pictures....In all honesty, both as an employer and a employee, snapshots of your work to go in your scrapbook or portfolio are fair game. Of course if you were printing a fancy cookbook with 200,000 editions and earning some serious coin, that would be a different situation, but it isn't the case. Don't think anyone would begrudge you to take snaps of your work for personal use, Might get sticky if the pics found their way on the web or magazines without the owner's permission, but for your own portfolio, I'd say go for it.


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## lentil (Sep 8, 2003)

I don't think she has any right at all to keep you from using the pictures of work you've done. Your work, no matter whether you were employed by someone else or not, is still your work. It's common to keep a portfolio or even a website of work. Does she actually think that everyone who shows their portfolio was self employed when the pictures were taken? You were employed not owned by your ex-vindictive boss.


She's probably very afraid that you'll take your talent to her competition. Good luck!


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## nowiamone (Jan 23, 2005)

Let me share this. In my life "before food service," or another field it was common to have people sign "covenants not to compete" and "proprietary secrets" documents. But we also knew they couldn't be effective, as they were virtually unenforceable. The courts will not remove a persons ability to make a living.

I really wouldn't agonize over this situation for a minute. It sounds as if you have a very inexperienced business owner that now feels threatened. Don't jump in to the fray, just keep going forward and smiling, no reason to fuel the insecurities; and hold your comments to others that might want to carry comments back and forth, stirring things up. 

In the remote case that you get a letter from an attorney, still don't assume that the owner has a supportable position. You can get an attorney to write a threatening letter very easily, to attempt to bluff the other party into agreement, but that still doesn't mean that they have a legal standing........... it only means that they got paid to write a letter. 

On the other hand, don't become derogatory or slanderous to the owner or business here, in this or any public forum. Attempting to intentionally harm a business is much different than you simply, going forward and promoting your skills.

If you are in business, you better realize people come and go, that's the way it is.


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## suzanne (May 26, 2001)

The cakes you did for your employer were "works for hire." Meaning that she owned the _actual cake_, not its image. But (and I'm no lawyer) it's not unusual to keep a portfolio of examples of the work you have done. You probably can't do the exact same design for someone else, but you can show what you did to give potential clients an idea of what you're capable of doing. If you make it clear in your portfolio (online or hard copy) that these are merely examples, and that you would create something similar but not identical, you probably should be all right.

I signed nondisclosure agreements with both a previous employer and a former client. It has been very easy to live with that. There are many ways to describe what you did/made without giving out the precise, detailed information. Fwiw, you can only patent a complete procedure. And I think you cannot copyright an individual recipe. Does that help?


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## rat (Mar 2, 2006)

I would tell your former boss to F&%$!!!! off, really. YOU did he cake it is your work, your old boss does not own the cake the person who purchased it does. Your ex-boss had no right to any of that unless you specifically signed an agreement to that effect, no one can own an idea especially in the food industry because chances are someone has done it before anyway. I would still display pictures of the cakes YOU made on YOUR website, I would remove all mention of your old boss and her business. Your old boss sounds like a real tool and I would not give her credit for anything except the opprotunity for working for her thats it.

As for pictures who cares whos camera took them, if you have them can someone really prove what camera they came from? As for displaying the pictues go for it unless the backround had a shot of the bakery or some sort if trademarked identification which places the cake at a certain location. They are pictures of YOUR work right?

As for your work being in a magazine, you are the one who made the cakes so why not be proud of that? You say "here is a cake I made when I worked at "blah, blah, blah" pretty sweet huh? As for copying a cake I do it all the time and so do many other people. I have even had at least one of my cakes copied by someone else, if anything I was flattered. How many brides bring in a picture and say that is the cake they want right? I did 2 this weekend and made 2 brides very happy and made my boss a couple of grand which made him happy which in turn makes my bank account happy.

All the cakes you do should be in some sort of portfolio so you can show people YOUR work when either looking for work or customers, that should be YOUR portfolio forever. Your job does not own you or your talent it is yours to do with as you like. Every job had their own portfolios and pictures but I HIGHLY recommend you have your own portfolio.

As for your last question I would not use pictures of cakes you were "helped" with to me they do not count. All your pictures should be with "the training wheels off" so to speak.

Sorry if I seem angry in this post but this is something that peeves me. Having been screwed myself once or twice, I can't really believe some of the stuff I hear from other people like yourself.
Regards, Rat.


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## kuan (Jun 11, 2001)

I would go ahead and create my own portfolio and try to make peace with your former boss. First of all, you own the talent, and there's nothing she can do to take that. Just be confident that you can do better and just make your own cakes and take some pics. You'll be better off. Maybe not today or tomorrow, but in the long run you might even turn her into a friend. If you don't want anymore ill will, extend the gesture first. It costs you nothing. There's not much she can do but accept. You're in control of this one.


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## foodnfoto (Jan 1, 2001)

OK, let me start by saying that I am not a lawyer and I suggest you have a quick consultation with one just to air out your concerns and see what kind of legal ground you stand on.

That said, I can think of at least two examples of situations that are similar to your position which would back up your ability to use the photos as you wish.

I used to work as a salaried employee of an editorial publishing company. I worked as their test kitchen director and part of my duties was to develop recipes for publication and work as a food stylist when we photographed those recipes. Each issue included credits at the bottom of the page for both the developers and stylists. Once the issue was published everyone who worked on the magazine recieved "tear sheets" of the pages we worked on to use for our portfolios or as we saw fit. These tear sheets were provided to both salaried employees and freelancers. We were not given the original digital images, but that's beside the point. As long as we acknowledge the source of the photo and publisher, we could use the image to show examples of the work we performed.

This also holds true for the freelance food styling work that I do now. At the end of each shoot, the photographer gives me a disk with the images on it and my agreement with the magazine is that I do not use the image until that issue is on the newstands. I can put them on my website or print them out and include them in my portfolio book. I also have a portfolio disk that I send to prospective clients that has a slide show of images that I have styled with credits to the photographer and publisher. Even when I am hired to style shots for packaging and advertising, I can use those images for my promotional materials.

Like others here have said, your former employer owned the raw materials and work space as well as the finished product (to sell to their client) but she does not own your talent and skill. That is your intellectual property-especially if you took the initiative to expand that skill and property at your own expense. Did you sign a non-compete contract with her? If not, she has no legal grounds to threaten you if you choose to use your talent. While she might have a claim if you set up shop next door to her with an identical type of business, she cannot stop you from making a living using your talents and abilities.

Besides, she already gave you permission to use the images. Just because she dropped the ball on her end of that agreement, doesn't mean that she is not still bound by that verbal contract or that she can ammend that contract arbitrarily whenever she wants to.

My hunch is that she's angry at you for leaving her in a pinch. You certainly gave her ample time to hire a replacement. She's really just projecting her frustration on you because she did not act accordingly-now she finds herself up the proverbial polluted creek without a paddle and feels that her business is threatened. I've been in similar situations where I gave more than the necessary notice (thinking it was the right and courteous thing to do for my employer) only to be treated with contempt for affording them that courtesy. It really stinks to realize that someone you may have respected becomes so small minded and selfish in the end.

One other example: there is a woman (formerly a sculptor and art historian) that makes her living making fabulous cakes. Check them out at http://www.pollyscakes.com Her designs are original and copyrighted. The copyright however, does not stop people from using her ideas and selling them as their own. I've seen derivative versions of her cakes all over the place, but none are really as beautiful or accomplished as hers. I know that Polly is not running all over the place filing copyright infringement lawsuits right and left. She just relies on the superlative quality of her designs and product and keeps developing new ones.


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## panini (Jul 28, 2001)

lot's of misinformation posted in this thread.
If you were not contract labor,or assumed total liabilities for the sale, try to work something out with the owners. If not possible, document it and go forward.


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## m brown (May 29, 1999)

I would agree with Panini.
If you want to use the designs, redo and reshoot.


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## eeyore (Nov 26, 2000)

Thanks to all for your comments.

It makes me feel better to at least know that regardless of the law she is going contrary to industry standard.

Panini, I must say I didn't really understand your comment. I do keep in mind that, as most everyone said, they are not lawyers. However you can go to 5 different lawyers and get 5 different answers. So what were you trying to say? Sorry.

M Brown--thanx. You may be right. But they claim I cant use the designs either. (despite the fact, of course, they copy pictures of cakes other people did all the time).

I have no intention of going into the cake business for myself. It sure would be nice though to be able to show what I can do. 

She is bitter because I quit. She just loves her employees....whoever they are...but all her former employees were just awful. lol She will say that "there isn't anyone here that God doesn't want to be here" But then if one of these "godsends" dares to leave.....well, then, Thanks be to God that he got rid of them. She talks bad about everyone that has ever worked there. So I knew it wasn't going to be easy. 

Well, thank goodness that I dont ever have to work for her again. That is worth starting over portfolio-wise.

Thanks again.
eeyore


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## greyeaglem (Apr 17, 2006)

I'm no lawyer either, and laws vary from state to state, but normally an employer would "own" things developed by you only if you signed a document stating that anything developed by you in the course of your work for them belongs to them. It seems to me that the designs you brought back from a class that you paid for yourself would belong to you rather than your employer. I doubt they would pursue anything legally, especially as it seems you signed no ownership contracts relating to concepts and designs. Even if you did, everyone knows you only have to alter it a little, such as changing one ingredient in a recipe to make it no longer proprietary. Very hard to prove "ownership". I don't think I'd worry about it if I were you. As for the magazine pictures, the best thing to do would be to contact the magazine for permission. They own the photos they took, and you probably could not use their pictures without permisssion. However, if they took a picture of a cake, and you took a picture of the same cake, you could use the picture you took, unless the magazine commissioned a particular cake for their shoot and paid for the making of it. Good luck with it.


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## kyheirloomer (Feb 1, 2007)

Coming in late on this one, but thought I'd throw in my 2 cents for whatever it's worth.

First off, we're talking about different intellectual properties here, plus the real property of the cake.

Forget the actual cake. It's gone. What's at issue are the images of the cakes.

So, let's talk about the images. The photos you took yourself are yours, to do with as you like. You can hang them on your wall, display them on the internet, publish them in a book. There is no legal way she can compel you to not display them. Even if you had not had anything to do with the cake, this applies. _You own the images and all rights to them_.

The photos she took are, likewise, hers. In a pinch you'd have to demonstrate that you had permission to use them. If she denies that, you are merely in a pixxing contest; a she-said-she-said deal. In such a case, in a courtroom, she would likely win. We'll come back to that in a moment, as it's not a problem.

The other intelectual property is the design work that went into the cake. Here, again, that is yours. Unless there is a contract that specifically says all design output belongs to the shop, she cannot merely assume rights to your work. This cannot be stressed enough: In the absence of a rights transference document, you own the design!

Technically, what happened was that each time you made such a cake you granted her one-time rights to the design. And if you want to get sticky about it, if she (in the person of the shop) continues using that design, she's actually violating your rights, not the other way around.

Now, returning to the courtroom issue of you using her pix. It will never go that far. But if it did, and she won the case, what does that mean? She has not suffered damage---just the opposite. And she is not a professional photographer, and, thus, will not be awarded the industry standard value of an image. At the very worst, she'll win a cease & desist order, enjoining you from using those images anymore. In short, no big deal.

So, all in all, I would just continue doing what you're doing, and not worry about the vindictiveness of your former employer.


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## izbnso (May 12, 2007)

Also coming in a bit late in the discussion, the crux of the issue is state law. Honey, you're in Alabama (me too) and not only are most non-compete contracts almost impossible to enforce here (most of them are simply to keep someone from setting up shop across the street from their former employers and usually entail that you not practice a similar business within so many miles) there is nothing your former employer can do, except incur legal bills, that will keep you from posting pictures of your work.

The bigger issue is that in the great state of Alabama one thing that our courts take very seriously (and like to award serious damages for) is interfering with the practice of a lawful business. I.E. if someone tries to stop you from making a living how you see fit either through scurrilous legal maneuvers, defaming your character or any other method, they can be sued by you for damages. 

I have a friend in Mobile that had a similar situation in the Insurance industry. Former employers tried to throw big monkey wrenches in her business when she decided to branch out on her own. They back tracked big time when her lawyer mentioned "interfering with business practices." 

If it were me, I'd go ahead and post the pictures and use them how I saw fit. If she wants to make issue of it, she will have to hire a lawyer (who will probably charge her to tell her there is nothing she can do) and then waste her own time and money in a futile attempt to mess with you. 

And anything she does to harass you in your attempt to be self-employed is another point in your favor should you choose to sue her for interfering in your business practices.

I'm not a lawyer, I don't even play one on TV, but I have had friends in similar situations and it doesn't take a rocket scientist to figure out she is just being petty and is worried that the talent you have will hurt her business.


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## kyheirloomer (Feb 1, 2007)

In all due respect, izbnso , we are not talking about right to work laws. What's at issue here is the disposition of intellectural and artistic property. The questions are: Who owns the images, and how can they be used. 

Controlling law is not at the state level, but at the federal level, because we're talking about copyright law. 

Eeyore's ex-boss isn't trying to prevent her from making a living. The vindictive bit_h is saying that only she has a right to any images of cakes produced in her shop. 

As I detailed below, however, she is wrong on two counts. Given the facts as we know them (i.e., no formal contract to the contrary), the ex-boss owns neither the rights to the photos nor to the designs themselves. Eeyore owns both; and can dispose of them in any manner she chooses.


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## panini (Jul 28, 2001)

ok, let's just bash the owner.
If the owner booked the cake, detailed it out, took full liability to complete all the necessary actions to have this cake made and delivered for the customer, the pictures were taken of the owners cake. If you use these pictures to imply that you can preform the same service ( which Eeyore is not) you're abusing your privilege.
I have been in this situation numerous times before as most other posters have NOT. Let's not forget, the assembly and decorating is a small percentage of the contract. If I view someones website, and I see pic's, and I see prices, I assume that that person can book, bake, and take all liabilities it takes to fullfill the contract.
I don't have to have some sort of contract to give me the rights to this work. I can spend whatever it takes to get my way legally, as can the opposing side, that is the biggest problem with our legal society as we know it.
I have NEVER told someone not to use our companies pictures and have worked out numerous agreements to use pic's without the use of an attorney.
It appears that most posts are about common sense, I understand why some may think there is atristic whatever, but remember, someone has taken huge risks to let the work be performed.
I can't count the number of websites that use our products as their own, not from former employees, but just plain covered. There are two companies in my city that are posting that they are the number 1 pick for the year in the Knot Mag. So bogus!!! Makes one want to dump the whole ball of wax, mainly from the thinking of as most..
Just a view from the other side.:suprise::smiles::talk:
had to edit caus that didn't make sense.
What I guess I'm trying to say is post something to show people what you have done, not implying that you can do it.


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## izbnso (May 12, 2007)

In the mean time I re-read all the posts and called my friend who has her own private attorney at her beck and call: if he wants clean underwear he must do her bidding.

Insert disclaimer on legal advice given over the Internet. (HA-HA)

#1 copyright law and the Internet is a bold new frontier legally speaking and can be very murky until tested. Do you really want to be the test case? Who took the picture and where it was taken figure in. Any photograph taken in a public place falls under a different set of rules than pictures taken in the employer's kitchen. If there are people in the photographs you need permission from those people to "publish" their image.

#2 since she is not planning on opening a business with these pictures and just wants an on-line "scrapbook" for people to look at the issue is entirely different if she were using the images for profit. A not for profit portfolio is something the former employer probably couldn't stop if she wanted to, even with an army of lawyers.

Here is the totally unofficial advice from a practicing attorney (through his wife, through me): If you want to put these pictures on the internet to bolster a for profit endeavor and the former employer has issue, and might have a second cousin twice removed who is a lawyer and will harass you for free, bake another cake and take a picture of it because she can cost you more money in legal fees than the time, energy and cash you would be out. Even if you are in the right.

However, she cannot stop you from seeking the permission of the magazine that published your cake (that you made while you worked for her) and using that image which they hold the copyright on. She cannot stop you from contacting professional photographers who took pictures of cakes you made (like at weddings and such) and getting their permission. Sticking to professional photographers who took the pictures is safer because they firmly hold copyrights of their work. In fact some local photographers might like the exposure that being credited on another web-site might give them, or not.

It is "right to work" laws that protect your former employer, not you. (These laws are written to favor the employer. The laws have little to do with your right to work and everything to do with their right to fire you without cause and retain the fruits of your labor.) On the other side of the fence is if she slanders or defames you or tries scurrilous legal maneuvers to keep you from making a profit, she opens herself up to legal action and hefty damages. You would of course incur legal bills of outrageous proportions and at that point it is a "you know what" contest. 

Which is why the advice of an actual lawyer is: the cost of a lawsuit would exceed any amount of money you would make in a cake decorating business. Bake and decorate a fabulous cake for a charity, take photos and write the entire thing off on your taxes. 

The answer is six of one a half dozen of another. If she is a nut who likes to sue, even if you are right, back down. If you are not intending to make a profit, and she's just full of hot air (and quite possibly fecal matter) post them and you are probably okay. 

And yes, the entire thing bites. I am all for protecting intellectual property, but this is ridiculous. It almost makes one long for the guild system.


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## eeyore (Nov 26, 2000)

Quote from Panini:

Thank you. That is exactly what Im trying to do. I have only given the address with my cakes on it to family and friends.

Thank you so much for your input. Ive never wanted to take credit for what I didn't do. I just would like to have a portfolio to show for my years of learning and experience.

I appreciate your experience.

eeyore


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## eeyore (Nov 26, 2000)

izbnso,

thank you so much for checking on that and typing it all out. I dont think I would ever go to court over posting pictures on the internet so I could show my friends and family. lol 

I did just want to know where I stand legally before I decide whether or not to post the pictures. So I really appreciate you doing that. Now I need to decide if I want to go through all the trouble of getting in touch with magazines and photographers (who I dont know) to see if they would help me out.....even though it might upset my boss who is possibly a good contact for them. hmmmm. 

thanks again.
eeyore


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## risque cakes (Apr 20, 2007)

I don't know what the fuss is about, I know that the Baking and Pastry world is not as "sweet" as it sounds..it's very competitive and cut throat...but if we do not share the art..it will "DIE".

I call SUGAR, the "LIVING" art form because it is constantly evolving..to the point that it actually folds back onto itself and the old becomes new.

That said..lol

I had a very talented young man helping me out in my shop, and we worked so well together that all I had to do was explain my vision or do some chicken scratch on a piece of paper and he would make my "vision" come to life.

I tried to hire him as my apprentice, but he was snatched up as an assistant pastry chef by some trendy restaurant.

I, in no way would stand in his way and his chef jacket is still hanging in my shop. All of the cakes that he worked on, he is welcomed to use in his resume portfolio even though they are MY artistic visions, they are HIS manifested talent.

When we take classes, don't we bring back our methods from celebrated teachers to use in our shops? 

I don't know, it just sounds like Sour grapes and you need to just make like a duck and let this run off your back like water.

It's your talent, right? The next person won't be able to reproduce your cakes. 

Change a couple of key design elements and take new pictures if you can't use the old ones, don't we do that all the time with each other's work anyway?

Good luck in your new venture and keep us posted!


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