Superheroes on cakes: infringement?

Dear Rich: I am a cake decorator and sell my cakes to the public. I would like to use some vintage images of superheros on my cakes by means of printing them in edible ink onto rice paper creating an exact image. Would this be considered a breach of copyright? Also, many cakes are created, marketed and sold through many cake companies around the world in the likeness of cartoon and superhero charactors etc. How do so many cake retailers get away with it? Your question reminded us that the Dear Rich Staff is related to someone who decorated cakes --  actually they were ice cream cakes so there was that extra layer of pressure when she created them--the melting factor. She made them for celebrity parties (like I think she did one for Sarah Jessica Parker) and she was super qualified -- a graduate of Cooper Union. Anyway, she was really good at it but gave it up one day to train seeing eye dogs. You gotta admit that's a heckuva leap for an artist, to go from creating things that people see, to helping people who cannot see. We think she's so admirable that yesterday we gave her all our frequent flyer miles. 

Right, you had a question. We'll avoid our typical wishy washy disclaimer in which we explain that we don't practice law in Australia. From what little we know we're going to assume the rules are similar for the U.S. and Australia--unless of course Australia has passed some major cake exception to the copyright law. Yes, you are infringing copyright by reproducing the copyrightable image of the superhero on the cake. You are also likely infringing the trademark, assuming the comic book company (or whoever owns the rights) is claiming trademark rights. The owners of most superhero rights have licensed the use of their money-makers for cakes. It's possible that your use of "vintage" superhero imagery may exempt you from infringement claims if the work is old enough to be in the public domain. Trademark rights on vintage superheros are unclear -- it really depends whether someone is stil exploiting the merchandising right for the vintage character.

How do others get away with it? The big cake companies probably have a license to use the imagery. The smaller cake companies may be just getting away with it because the licensing companies haven't noticed or don't care enough to sue. If you're a small to tiny operation that's not likely to get noticed, then you can probably proceed with caution. Of course, there's always the possibility that by the time you proceed to a lawsuit, the evidence will have been digested.