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COSPLAY and Intellectual Property: Navigating the Legal Landscape

Intellectual Property

COSPLAY and Intellectual Property: Navigating the Legal Landscape Cosplay has become popular again as a form of pop culture activity since the COVID-19 pandemic restrictions ended. Malls in all corners compete to host various events featuring Cosplayers to increase visitors. But not many people know that Cosplay is an activity on the “edge of the cliff” when viewed from an Intellectual Property (IP) perspective. How come?   Definition of Cosplay Taken from the words “Costume & Play,” Cosplay is the activity of playing using character costumes, whether from films, TV series, video games, comics, or characters from other popular culture. People who carry out Cosplay activities are called Cosplayers. We can easily find them at pop culture-based events, such as “Comic Conventions,” dominated by IP from America, or “Anime Conventions,” dominated by IP from Japan.   Cosplayers proudly wore their favorite character costumes at these events, socialized with fellow fans, or participated in competitions. Yes, Cosplay is also regularly contested with quite big prizes. This is one of the factors why the number of Cosplayers continues to increase. Because Cosplay has become a place to earn money, increase popularity, and expand friendships. The rise of Cosplay activities has also given rise to various derivative professions. Starting from Costume Makers with their respective specifications, whether for costumes made from cloth, foam, resin, or leather. Then, the Prop Makers make costume-supporting equipment such as armor, swords, or other weapons. Also, trained Performers with acrobatic or martial arts skills are specifically hired to play certain characters. Then we have Cosplay Judges who are staffed by “seniors” with high-flying hours and have won many competitions at home and abroad. Unfortunately, all of these professions receive payment for using characters without the permission of the creator or owner of the character. This factor causes Cosplay to become an activity on the edge of Intellectual Property violations.   Every Popular Character is Copyrighted Every character, realized in various media, whether considered popular or only known to a few people, is included in the “Creation.” According to Article 1 of the Copyright Law, this Creation is a creative work in science, art, and literature produced based on inspiration, ability, thought, imagination, talent, skill, or expertise expressed in concrete form.   The Creator is given exclusive Economic Rights, so only the Creator has the right to obtain financial benefits, including commercial use of his Creation. It is also important to remember that the Exclusive Right to Copyright arises automatically based on the Declarative Principle after a work is realized in actual form, without the need to go through a registration process as with Trademarks, Patents, or other Intellectual Property.   In other words, if another party wants to use or utilize a Creation commercially, they must first obtain permission from the Creator, as regulated in Article 9, Paragraphs 2 and 3 of the Copyright Law.   Sanctions for Violations Unfortunately, the various professions derived from the Cosplay activities above can specifically be categorized as forms of Copyright Infringement. For Costume and Prop Makers violating Article 9 Paragraph 1 letters (b) and (d) regarding the Duplication of Works in all their forms, as well as Adaptation and Transformation of Works; Meanwhile, Event Organizers who invite costumed Performers or Cosplay Judges may be deemed to have violated Article 9 Paragraph 1 letter (f) regarding Creation Performances. Criminal sanctions regulated in Article 113 of the Copyright Law as follows: Costume & Prop Maker: Prison max. 4 years and/or fine max. one billion rupiah. Cosplay Event Organization: Prison max. 3 years and/or fine max. 500 million rupiah.   The sanctions given to costume makers could be more severe if they deliberately sell themselves as sellers of costumes made from characters with registered Trademarks and/or parts of their costumes take designs from products with registered Industrial Designs. So he could be subject to sanctions from the Trademark and Industrial Design Law simultaneously!   Copyright Restrictions But fellow Cosplayers or all related derivative workers don’t need to worry because there are restrictions or exceptions for actions that are still not considered Copyright Violations. Namely, if the duplication and/or performance is free of charge, provided that it does not harm the reasonable interests of the Creator.   In other words, if the Cosplay activity is designed as a paid show where the audience must buy tickets, or Brand X pays a Cosplayer complete with the costume to promote a product from Brand X, then it is inevitable that there has been a Copyright Violation.   However, because the criminal provisions on Intellectual Property are a complaint offense, there must be a direct objection from the Creator to all activities carried out by the Cosplayer and any derivative work thereof. What can happen is, even in a free Cosplay show or free costume making, if the Creator finds out, objects, and does not give permission for whatever reason, a lawsuit can still be filed.   Cosplay Practice in the USA and Japan Even though it is considered a fun activity without limits and upholding freedom of expression, Cosplay still has to comply with several pretty strict rules. For example, if done privately, Cosplayers must abide by the norms of decency; neither their costumes nor their behavior must disturb public order. In this personal activity, Japan has stricter rules than America. In Japan, it is impossible to find people busking in character costumes in the middle of the street. Apart from disturbing public order, it could be considered to damage the image of the character he presents.   Street Performers In America, Cosplayers are categorized as Street Performers. They are free to express themselves even if there is no event, but the area is minimal if they take to the streets or public spaces for activities. A famous example of this restriction is the streets painted Light Blue around New York’s Times Square. If they act outside that area, they can be immediately arrested by the police. Indonesia also has regional regulations that prohibit busking or…

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Exploring the Intellectual Property Game in Basketball

Intellectual Property

When we think of basketball, the first things that come to mind are slam dunks, crossovers, and buzzer-beating shots. But did you know that the world of basketball also involves its fair share of Intellectual Property? From iconic logos to innovative technologies, the game has its own unique IP game. Let’s take a jump shot into basketball and some of its Intellectual Property.        1. Trademark for Team Logos: Just like the game itself, team logos are integral to the identity of basketball teams. The LA Lakers’ iconic logo or the Chicago Bulls’ fierce emblem aren’t just symbols; they’re also protected Trademarks, ensuring their uniqueness and preventing unauthorized use.        2. Patents for Innovative Footwear: Basketball shoe technology has come a long way. From Air Jordan’s game-changing cushioning to Adidas’ Boost technology, Patents often protect these advancements. These Patents encourage innovation and safeguard the hard work of creating performance-enhancing gear.        3. Copyright for Broadcasts and Analytics Software: The exhilarating dunks and clutch plays would be the same with the broadcasters who capture the moment. These broadcasts are subject to Copyright, ensuring that the creative work involved in producing them is acknowledged and protected. The modern game is heavily influenced by data analytics and software. The algorithms and software tools used to analyze player performance and strategy are valuable Intellectual Property assets.   As we cheer for our favorite teams and players, remember the ‘behind-the-scenes game’ of Intellectual Property that contributes to the excitement on the court. From Trademarks to Patents and Copyrights, basketball is more than just a sport; it’s a field where innovation and creativity are valued and protected.   Should you require further information and assistance regarding Intellectual Property in sports, please get in touch with us at [email protected]. Source: World Intellectual Property Organization FIBA Basketball

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ASEAN Launches “IP Register” to Boost Intellectual Property Protection

Intellectual Property

The Association of Southeast Asian Nations (ASEAN) and the World Intellectual Property Organization (WIPO) launched the ASEAN Intellectual Property (IP) Register on August 20, 2023, in Semarang, Indonesia. The IP Register is a one-stop technology developed by the ASEAN Intellectual Property Office to facilitate the exchange of data on Patents, Trademarks, Industrial Designs, and others that have already been registered.   The launch of the IP Register is part of a Memorandum of Understanding (MoU) signed by ASEAN and WIPO in 2022. The MoU aims to expand cooperation between ASEAN and WIPO in specific areas through a future-focused and impact-driven approach. It also seeks to complement the ongoing partnership under the ASEAN Intellectual Property Rights Action Plan (AIPRAP) 2025.   The specific areas referred to in the MoU aim to meet the new and emerging needs of underrepresented stakeholders from the business and creative communities, such as small and medium enterprises (SMEs), startups, creators, and other IP-related parties.   The IP Register is expected to boost intellectual property protection in ASEAN by providing a single portal for stakeholders to conduct seamless Patent, Trademark, and Industrial Design searches. It will also help to facilitate the registration of IP Rights in ASEAN, which can help businesses and creators to protect their innovations and creations.   The launch of the IP Register is a significant milestone in ASEAN’s efforts to build a more conducive environment for innovation and creativity. It is also a testament to the strong partnership between ASEAN and WIPO in promoting Intellectual Property protection in the region.   Here are some of the benefits of the IP Register: Provides a single portal for stakeholders to conduct seamless Patent, Trademark, and Industrial Design searches. Helps to facilitate the registration of IP Rights in ASEAN. Help businesses and creators to protect their innovations and creations. Boost Intellectual Property Protection in ASEAN. Create a more conducive environment for innovation and creativity in the region.   The IP Register is a valuable tool for businesses, creators, and other stakeholders in ASEAN. It is expected to play a significant role in boosting Intellectual Property protection in the region and promoting innovation and creativity.   Should you require further information and assistance regarding IP Protection in Indonesia or abroad, please contact us at [email protected]. Sources: ASEAN.org Directorate General Intellectual Property

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Bootleg Toys v Third Party, Which One is Illegal?

Intellectual Property1 Comment

The toy industry is one of the most promising businesses for IP businesses. Of the total circulation of money, which has reached USD 107.4 billion in 2022 alone, more than 80% is Intellectual Property (IP) based toys. The best sellers were toys from IP Barbie, Disney Princess, Marvel, Star Wars, Pokemon, Minecraft, and Harry Potter.   Because basically, the buyers of these toys are not only children but also adults who collect various action figures (toy characters that can be posed because they have multiple points of articulation) and statues (toy characters that are large without articulation but have super accurate details), worth hundreds of dollar.   The large community of toy fans and collectors, with different purchasing power from a popular character, overwhelms toy manufacturers in presenting various toys that are in demand. This potential is then filled by other toy manufacturers, ranging from cheaper versions of toys to those with different designs that are not officially licensed.   Bootleg Toys Because they have official partnerships with IP owners, big toy manufacturers such as Hasbro, Bandai, Mattel, and LEGO must maintain quality by presenting products that match the original characters’ appearance— from the suitability of the color to the packaging with the official logo. With maintained quality, the selling price of these original toys is costly. But on the other hand, we can also find toys with low prices, of course with a low level of accuracy, messy paint, no official logo, and the name of the company that made it needs to be clarified.   That criterion is what is referred to as a bootleg or pirated toy. Because it is clear that its presence does not go through an official collaboration process, paying for a license, nor is there a Quality Control (QC) process that should be present to maintain the quality of an IP. Unfortunately, there is also a high interest in pirated toys, especially from low-budget collectors or collectors who deliberately buy toys to modify, repaint, or use some of the parts to replace the original toys.   Third-Party Toys As previously explained, each popular IP character has huge fans with high purchasing power. The characters Batman, Spider-Man, Iron Man, Darth Vader, Optimus Prime, and Kamen Rider are examples of popular characters whose fans always buy a new version of the toys. Seeing their enormous purchasing power, a third category of toy manufacturers emerged: toy manufacturers who make toys based on a character but with a different design, never before made by other toy companies but still attractive to the fans. These are what fans classify as “third-party” toys.   While true fans can feel guilty when they buy pirated toys, that’s not the case when they buy “third-party” toys. Because they think buying toys with new variants which have never been produced before by design is acceptable. These “third-party” toy manufacturers also do not pay royalties to IP owners. This is indicated by the absence of official logos and character names on the packaging of “third-party” toys.   Industrial Design Rights on Toys Several types of Intellectual Property are attached to a toy, namely Industrial Designs, Trademarks, and Copyrights. If the Copyright protects the packaging design, while the Mark protects the IP name and its characters, then the Industrial Design protects the core product.   According to Law Number 31 of 2000 concerning Industrial Design in Indonesia, the definition of Industrial Design is a creation of the shape, configuration, or composition of lines or colors, or lines and colors, or a combination thereof in a three-dimensional or two-dimensional form which gives an aesthetic impression and can be embodied in three-dimensional or two-dimensional patterns and can be used to produce a product, goods, industrial commodities or handicrafts.   In producing a toy, these toy manufacturers usually buy a license for a character from the IP owner, then make an attractive design and register it as an Industrial Design. However, this Industrial Design only has a protection period of 10 (ten) years from the application date and cannot be extended. This is what makes toy manufacturers have to keep creating and keep making new variants so they can continue to get the maximum benefit from the characters that have been licensed before losing the exclusive rights to the designs they made ten years later.   Penalties for Industrial Design Violators From the explanation above, it can be concluded that pirated toy manufacturers who make similar toys with the same design but lower quality have violated Industrial Design. Because according to Article 9 of the Industrial Design Law in Indonesia, “Holders of Industrial Design Rights have the exclusive right to exercise their Industrial Design Rights and to prohibit other people without their consent from making, using, selling, importing, exporting, and/or distributing goods that are given Industrial Design Rights.”   Then Article 54 of the Industrial Design Law provides for a maximum imprisonment of 4 (four) years and/or a maximum fine of Rp 300,000,000.00 (three hundred million rupiahs) for violations of Article 9 above.   Then what about “third-party” toy manufacturers? Do they not commit any violations?   Because Industrial Designs are specific according to the designs registered, “third-party” toy manufacturers may be able to escape the legal snares stipulated in the Industrial Design Law. Still, they cannot run the Copyright Law and/or Trademark Law because it is not impossible that the toy manufacturer still uses a similar name on the packaging and character design which still has similarities in principle to the character whose copyright has been recorded at the Intellectual Property Office.   Therefore, if we are true fans who support the development of our favorite IPs, we must start leaving the habit of buying toys from manufacturers who do not pay royalties because there are still forms of violation there. On the other hand, if you are interested in getting into the toy industry, it is better to start by establishing official partnerships with IP owners.   If you need further information about Industrial…