F.R.I.E.N.D.S Show: IP Infringement and Legal Controversies

The F.R.I.E.N.D.S Reunion episode has definitely set an admirable example of how a brand never dies. All one needs is the right kind of storytelling to get your audience nostalgic and curious to find out what happened thereafter. Have you ever been curious about the fact that there have been cases of infringement in the name of taking advantage of the popularity of the show in the past 27 years?

Have you come across the famous F.R.I.E.N.D.S graphic tees and the show’s famous dialogues merchandise which are available at various top notch ecommerce websites like Amazon.com, H&M, Bewakoof.com, Ajio.com, Forever21? The major question which arises is that are these websites and sellers registered under these websites authorized to use such graphics and obtain profits in lieu of the show’s popularity. And have you ever come across some headlines in the past decade like “There’s actually a Central Perk Cafe right here in our very own Delhi! One visit here and you’d be able to imagine yourself sitting in the same ambiance, the same quirky and eye-catching interiors, the same kind of furniture – eating, chilling and having a good time – just what you used to fancy while watching the sitcom!” or “Cafe Friends- Did the name itself bring a smile to your face? We know it! This cafe, located in Gurugram, doesn’t all-out incorporate the F.R.I.E.N.D.S. theme”

It has become increasingly common and popular for cafes around the world to adopt a particular theme from a fictional character, a book, or a sitcom for that matter for creating overhype in the fans’ heart– but how genuine are they? What is the law that surrounds the foundation of such cafes and are they infringing any copyright? And is it okay if your cafe is just merely inspired by such shows?

Can a theme of the restaurant be possibly copyrighted? The theme here essentially implies the concept or idea that defines the general ambience of the restaurant. The Copyright Act, 1957 does not rigidly mention whether the ideas are protected under the law. But it has been observed that ideas are not copyrightable, only expressions are. Even the TRIPS Agreement grants protection to expression and not ideas, methods, concepts. WIPO, in consonance with TRIPS Agreement, even specifies that it is the expression which is protected under Copyright laws and not ideas or concepts.

The idea-expression dichotomy has also been discussed in various judicial pronouncements and in case R.G. Anand v. Deluxe Films (AIR 1978 SC 1613), the Supreme Court has laid down propositions in consonance with idea-expression dichotomy that:

1. There can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts.
2. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work.
3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to seeing the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.
4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.
5. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying various relevant tests.
6. Even though the work appears to be similar and the intention to copy the original is quite evident, the coincidences appears that the two works are clearly incidental so no question of infringement of the copyright comes into existence.
7. The perspective plays a major role. Where however the question is of the violation of the copyright of stage play by a film producer or a director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader perspective, a wider field and a bigger background where the defendants can by introducing a variety of incidents give a color and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved.

Also, to put it simply, this also comes under the concept which is known as Adaptation. Adaptation usually means a modification of the original work in order to produce a new work or the process of recasting.

Sec. 2(a) of Copyrights Act, 1957 says that Adaptation means, i) conversion of the dramatic work into a non-dramatic work; ii) the conversion of the work into a dramatic work by way of performance in public or otherwise in respect of a literary work or an artistic activity; iii) in relation to a literary or dramatic work, any abridgement of the work or any version of the work in which the story or action is expressed solely or mainly by means of images in a form appropriate for reproduction in a novel, or in a newspaper, magazine or the like periodical and any arrangement; iv) transcription of a work relating to a musical work.

Adaptation is one of the exclusive rights which the Author has in wherein, he can himself recreate or give permission in the form of licenses to others to recreate his creation in different forms.

Copyright, however, is both a positive and a negative right as it allows its owners to exploit it on the one hand, and prevents others from exploiting it on the other which empowers the original creator.

It is pertinent to note that Adaptation would infringe the original work under the basis in the absence of a license from the copyright owner of the original work that means one needs the permission of the Author to use hosh work; however, the adaptation author has its own copyright in derivative work which fulfills the protective conditions. Adaptation is very common and can be done by anyone with due diligence. Whereas in the US, the subject-matter of copyright as set out in section 102 [17 USC], Copyright Law of the United State includes compilations and derivative works, but protection for works using pre-existing material in which copyright does not extend to any part of the work in which such material has been unlawfully used and Copyright in a compilation or derivative work is limited to the material contributed by the author of such work, as distinguished from the pre-existing material used in the work, and does not imply any exclusive right in the pre-existing material.

Hence, for instance, if inspired by the FRIENDS series, somebody started a bistro that had a such themed set up, they wouldn’t be liable for infringing Warner Media copyright just because the ideas behind the two were striking similar – however, if they used distinctive visual specifics (like a direct six main characters- Chandler, Joey, Monica, Phoebe, Rachel and Ross reference) from the series, it would necessarily constitute an infringement.

What has happened in such cafes is that the cafes do not merely bear some sort of vague resemblance to the Central Perk coffee shop and the characters in the TV show – both basically duplicate them, and rather explicitly, in the utmost manner; the famed orange couch, umbrellas from the show’s theme song. Taking into consideration the aspect of trademark, there can be a situation that such cafes and brands selling merch could be able to set aside from copyright issues but the trademark violation is a bigger concern.

Like, in 2009, a UK food blogger who ran an underground restaurant decided to launch a Harry Potter themed dinner. Within days of announcing it, Warner Bros’ legal department sent a letter stating that the dinner would infringe Warner’s rights and that while they had no objection to a generic wizard night theme, the mention of Harry Potter was an infringement.

While it has not been substantially observed that the FRIENDS mark is registered, the authority might take into consideration the aspect of well-known mark and trans-border goodwill and reputation and even after the show went off-air its usage in merchandise in ample quantity has further strengthened it as a distinctive mark.

It is though valuable to note that as the word ‘FRIENDS’ is in itself a common dictionary term, but it is the use of the word as a ‘logo’ in the specific style that it appears on the show that would render it really worthwhile to pursue the claim as the business is trying the fame of the show to profitise its business. Even though they might have just an intention to offer F.R.I.E.N.D.S ardent fan an opportunity to live life in the coffee shop like the characters of the series but in the absence of a legitimate license from the authority, these definitely represent individual instances of intellectual property infringement and hence, it is liable to action by the production house.

Author: Mannat Sardana
Executive Assistant (Research)