Copyright infringement by pop culture-themed restaurants or cafés

You can have a very intense relationship with fictional characters because they are in your own head.
– J.K. Rowling

The current generation has grown up obsessing over the coming-of-age movies that they’ve been saturated by. One of the best things about these fictional stories is that there is little hiding space. One is made to see the fictional characters’ motivations, triumphs, and defeats. Simply put, one can relate to these characters completely. Hence, in a world where all brands are trying to stand out and become noticeable to appeal to modern society, there is indeed something to take from these movies and character tropes that society knows and loves.

One of the ways to relive these shows and these characters is to recreate a popular place from the shows or the movies. Therefore, various pop culture-themed restaurants or cafés have started coming up to make the customers relive the same situation and same lives that their favorite fictional characters lived.

However, what are the intellectual property laws that govern this reproduction? Are restaurants/cafés allowed to reproduce these popular places from the shows? If yes, then what are the laws behind the same? Whether these cafés are copyrightable or not? Or are they infringing any intellectual property rights of the producers of these films or tv shows? The author will answer all these questions and analyze the governing law in this paper.

There can be multiple intellectual property rights violations that the setting up of these restaurants could have resulted in viz., copyright, trademark, right of publicity, etc. However, for the purposes of this paper, the author will only talk about copyright infringement.

Many restaurants and cafés these days have been using themes from different tv shows or movies and decorating the ambience of their restaurants accordingly to attract customers. Some well-known cafés include the “Central Perk café from F.R.I.E.N.D.S.”, “Harry Potter inspired café in Australia”, etc.

Let’s talk about the central perk café from FRIENDS. Here, the owner of the restaurant has not merely taken up an idea from the show but rather has completely replicated the elements from it. For instance, the orange couch on which the six friends sit, Joey and Chandler’s big ugly dog statue, Phoebe’s pink bicycle, the distinctive purple door, a picture of the words ‘Central Perk’ written on the window the same way it appears on the show and various other elements. This replicating of elements is what constitutes copyright infringement.

Had the owner taken up the theme of the restaurant, the situation would not have been problematic. Theme implies the concept/idea which defines the general ambiance of the restaurant. The law only protects expressions. The TRIPS Agreement also stands on the same line while granting protection to expression only, and not ideas, methods, or concepts. The World Intellectual Property Organization (WIPO), in consonance with TRIPS Agreement, also lays down that it is the expression that is protected under Copyright laws and not ideas or concepts.[1] Therefore, in India also, The Copyright Act of 1957 does not protect the ideas rather only the expression is protected.[2]

Therefore, had the idea been developed in a different manner implying that the elements used were only similar to those in the show and were not the exact replica without being distinctively identifiable, the same would not have infringed the copyright of the producers.

However, since the café’s expression is substantially similar to that of the café in the show, and the elements from the show have been used exactly to decorate the interiors of the café, it is a literal imitation of the sitcom and violates the copyright of the producers.

Let’s take another instance of the Harry Potter movie series-inspired café. Here, if the owner of the café uses a wizard theme to decorate the interiors of the café then the same would not be considered copyright infringement as there are no identifiable elements that provide a direct resemblance to the Harry Potter elements or characters. Therefore, unlike the above cafés, this will not constitute copyright infringement. However, if the owner uses direct references from the movie series like Voldemort or Hogwarts reference then it would necessarily constitute an infringement.

Similarly, if we draw a comparison with the “Game of Toast café of Abu Dhabi”, here the owner of the café has not copied the expression of the elements of Game of Thrones but rather has created a place that is similar to the theme of Game of Thrones. There are no identifiable elements that provide a direct resemblance to the Game of Thrones elements or characters. Therefore, unlike the above cafés, this will not constitute copyright infringement.

In the Indian context, the principle of infringement of copyright is the same as that of the US which is the idea of expression dichotomy. If such cases come up before the courts in India, then the same principle will be looked at i.e., if there is substantial copying of the expression of the tv show or movie then it will constitute an infringement of copyright, however, if a similar theme has been used by the owner of the restaurant or café then the same will be protected and no rights of the author will be said to be infringed.

There were two Friends’ themed cafés which came up in India. One was opened in Kolkata and the other in Delhi. The two restaurants did not incorporate only the theme of the café rather they have entirely duplicated the expression that has been showcased by the NBC in the show. Assuming the possibility that they have not acquired any copyright license, there is a huge possibility to be sued by the production house for copyright infringement.  

It is pertinent to note that this adoption of themes of restaurants or cafés can also come under the concept of Adaption[3] under Section 2(a) of the Copyright Act. According to the said section, adaptation means modification or alteration of the original work to create a new work. Adaptation is one of the exclusive rights of the authors and if a person wants to adapt and modify the said work then appropriate authorization, i.e., a license, is required from the owner of the work. If the required authorization is not taken then the work is said to be an infringement of the original work.

In the present scenario also, if the owners want to set up a themed restaurant based on a pop-culture then the required license should be taken from the owners of the tv shows or movies so that no intellectual property rights violations occur and no rights are infringed are vested with the owner of the work. Subject to the agreement, appropriate royalties should also be paid to the producers.

Paramount Pictures Corporation v. JMC Pop Ups LLC

The famous movie ‘Coming to America’ which was released in the year 1988 has been one of the favourite movies of many people. Having copyright disputes which relate to your favourite movies or tv shows is undoubtedly an interesting experience.

Recently, a very interesting case[4] was brought before the Copyright Claims Board [“CCB”], which was launched earlier this year by the Copyright Alternative in Small-Claims Enforcement (CASE) Act, 2020.[5] It is a tribunal located in the copyright office and available as a voluntary alternative to federal court.[6]

Coming to America, released in the year 1988 by Paramount Pictures Corporation [hereinafter, “Paramount”], grossed $350 million worldwide, and was even nominated for two Oscars. It is a story of a fictional prince, Akeem looking for love in New York city while working a minimum wage job at a fast food restaurant named ‘McDowell’s’. In 2021, the sequel of the film was released titled ‘Coming 2 America’ and while it was a shell of the original, it further captured the characters, locations, merchandise, and branding. Over the years, it has become something like a cult classic like the ‘Central Perk Café in F.R.I.E.N.D.S.’ and ‘MacLaren’s Pub in How I Met Your Mother’. This inspired JMC Pop Ups LLC [hereinafter, “JMC”] to open its own ‘McDowell’s’ in New Jersey in the spring of 2021.

In February 2021 as the film was preparing to be released, JMC announced that it would host a McDowell-themed themed pop-up in April. However, as Paramount learned of the event it sent a cease and desist notice to JMC requesting them not to go ahead with the event.

JMC in reply stated that they were within their rights to host the event and went ahead with it. The restaurant not only featured the ‘McDowell’s’ name but also countless other copyrightable materials from the movie, including but not limited to the menu, the character names and likenesses, and the recreations of well-known McDowell’s restaurant from the Coming to America and Coming 2 America Universe.

However, no action was taken after the first event, and in February 2022 JMC began promoting another event which was to be held in May and June 2022. Paramount got to know about the event in April 2022 and they expressed the same concerns to JMC stating that they do not want them to go ahead with the event.

However, JMC did not pay heed to any of the concerns expressed by Paramount and went ahead with the event which resulted in Paramount filing a suit with the CCB against JMC for infringing Paramount’s intellectual property rights.

JMC, in its response to Paramount’s claims put forth an argument of fair use. Fair use is described under Section 107 of the US Copyright Act[7] which gives the right to use a copyrighted work without permission.  

JMC claimed that the fundamental nature and ongoing comedic theme of using McDowell’s concept in the film is the infringement of McDonald’s intellectual property.[8] The elements which are claimed by Paramount to be infringing are the claimed elements of McDonald’s and their intellectual property rights are vested in those elements. Though the film uses McDonald’s elements and goods in a satirical manner which gives them protection under fair use, however, it does not give Paramount their own intellectual property rights over the use of McDonald’s property.

Similarly, JMC’s use of McDowell’s and any element thereof merely reiterates the same satirical fair use undertaken by Paramount in the films.

Analysis

Fair use is defined under Section 107 of the US Copyright Act. It states that the fair use of a copyrighted work, including such use by reproduction in copies … for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright.[9] Further, the section goes on to give certain factors which can help determine whether a work in any particular case is fair use or not. The factors are:

1. The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
2. The nature of the copyrighted work;
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. The effect of the use upon the potential market for or value of the copyrighted work.[10]

Fair use is not a straight-jacket formula or existing in a watertight compartment. Its parameters are not defined as such. No bright line test exists for determining whether any particular use is fair use or an act of infringement, so each use requires a case-by-case determination.[11] It is like an open-ended legal doctrine.

In the present case, JMC claims that Paramount’s use of the elements portrayed in the film is protected under fair use as they have used it in a satirical form. The same reasoning applies to JMC also. However, JMC did not have any intention to use the elements in a satirical form. This has been abundantly clear from the posts made on social media pages of McDowell’s.

For instance, in one of the posts, it was stated  “McDowell’s will be a multi-room installation that includes not simply the restaurant’s order counter (which serves actual Big Micks), but also re-creations of the dingy apartment where Prince Akeem lives, and Mr. McDowell’s office (guests can sit at his desk, don his blue blazer, and pick up the cheeseburger phone)”.[12]

This clearly shows the intention that there was no parodical or satirical motive behind the reproduction of the work. The entire elements from the film have been copied so as to recreate the scene of the café in the film. This was done to give the customers the same experience that the characters of the film have when they are in that café. This shows the clear intention of reproducing the exact replica of McDowell’s which constitutes infringement.

Further, if we clearly analyze the situation, it can be inferred that McDowell’s use of the elements of McDonald’s did not infringe on their copyright. There are several differences between McDowell’s and McDonald’s elements. There is no similarity in the ambiance, the menu is not the same, and the items on the menu are different. This cannot constitute a copyright infringement as there is no substantial copying and Paramount has only taken the theme to create a fictional café in the film. However, in JMC’s recreation of McDowell’s café, the entire expression has been copied. Everything has been recreated as the purpose of JMC was to make the customers realize that they are in the McDowell’s café itself which is shown in the film.

Therefore, there is a clear intention and motive of copying the elements entirely which constitutes copyright infringement.

Conclusion

There are unfortunately several ways in which entrepreneurs unknowingly infringe upon someone else’s intellectual property. However, the infringement would not be deemed as an innocent infringement when it comes to the use of well-known copyrighted works or marks as themes in businesses.

The failure to respect Intellectual Property rights can have steep consequences for businesses, including reputational and economic damage. Therefore, it is important that such businesses as cafes obtain licenses from the respective IP owners if they choose to rely on an existing or fan-based concept. Further, if not, then an appropriate amount of royalties should also be paid to the producers of the work.

Here, it is pertinent to note that the idea to give a wholesome experience to the public is always welcomed, but such ideas should not be utilized to infringe upon the IP of other creators.

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[1] Anjana Gopinath, ‘Intellectual Property Protection and Theme Based Food Businesses’, Navarre Roy Law. Available at https://navarreroylaw.com/updates/intellectual-property-protection-and-theme-based-food-businesses/.

[2] R.G. Anand v. Deluxe Films, AIR 1978 SC 1613.

[3] Section 2(a), The Copyright Act, 1957.

[4] Paramount Pictures Corporation v. JMC Pop Ups LLC, 22-CCB-0112.

[5] Copyright Alternative in Small-Claims Enforcement (CASE) Act, 2020.

[6] CCB.gov, Copyright Claims Board, available at https://ccb.gov/about/.

[7] Section 107, Copyright Act (17 U.S.C.), 1947.

[8] Heather Antoine, ‘Paramount Brings ‘Coming to America’ Claim Before Copyright Claims Board To Shut Down McDowell’s Pop-Up’, Forbes, August 30, 2022. Available at https://www.forbes.com/sites/legalentertainment/2022/08/30/paramount-brings-coming-to-america-claim-before-copyright-claims-board-to-shut-down-mcdowells-pop-up/?sh=5ad1cff45202.

[9] Supra note 6.

[10] Supra note 6.

[11] United States v. Elcom Ltd., 203 F Supp 2d 1111, 1121 (N D Cal 2002).

[12] Sylvie Mcnamara, ‘A McDowell’s Pop-Up is Coming. No, it’s Not “Coming to America.” It’s Coming to Virginia.’, Washingtonanion, March 29, 2022. Available at https://www.washingtonian.com/2022/03/29/mcdowells-pop-up-coming-to-america-springfield-virginia/.