New copyright decision gives hope to artists
Fabiola Rossy and Andrew Diamond, Januar Jahja and Partners
*This article originally appeared in Managing IP (May 2021), https://www.managingip.com/article/b1s0mdrrzhdxyv/indonesia-new-copyright-decision-gives-hope-to-artists
In a country where copyright enforcement has been historically difficult, a recent Indonesian court decision is making headlines for all the right reasons. In April 2021, the Central Jakarta Commercial Court announced its decision in the closely watched ‘Rabbit Town’ case and found for the estate of American artist Chris Burden as the plaintiff against a local theme park and its owner, making it a potential landmark copyright infringement case for both Indonesian and foreign artists alike.
Here, the case focused on Urban Light (2008), an art installation created by Burden composed of 202 historic streetlamps arranged in a grid that has been installed outside the Los Angeles County Museum of Art (LACMA) since 2008. He passed away in 2015 and his estate filed a lawsuit in June 2020 alleging that Burden’s copyright in Urban Light had been infringed by an installation called ‘Love Light’ located at a selfie-theme park in Bandung, Indonesia called Rabbit Town, approximately three hours from the capital of Jakarta. ‘Love Light’ consists of 88 streetlamps also arranged in a grid as one of a number of installations at the theme park, having first opened in January 2018.
It appears that the controversy began soon after, when in March 2018, an Instagram account called @Diet_Prada posted the following message—along with comparison photos of the two installations—that received widespread attention online: “Hey @rabbittown.id … it’s cool you wanna bring some LA flavor to Indonesia, but blocking the people tagging @lacma in the comments doesn’t really go with chill West coast vibes… Chris Burden’s ‘Urban Lights’ installation is pretty iconic lol.”
Two years later, after private negotiations between the parties failed, the estate of Burden filed a copyright infringement lawsuit against Pt. Pasti Makan Enak as the management of Rabbit Town and Henry Husada, as its owner. In their suit, the estate alleged Urban Light qualified as a copyrightable work that had been copied and modified without the holder’s permission, constituting copyright infringement under the Indonesian Copyright Law of 2014. The estate requested approximately $750,000 in material damages and approximately $3.5 million in immaterial damages.
To date, there is not yet an official publication of the complete court decision (Case No. 31/Pdt.Sus-HKI/Hak Cipta/2020/PN Jkt.Pst), but the decision was read aloud in open court on April 20 2021, which has been widely reported on and the Burden estate has also issued a formal statement. From these sources, a clear picture of the case and the court’s decision can be formed.
The defendants had argued, among others and backed by expert testimony, that Urban Light is not well-known in Indonesia so it would have been unlikely for the defendants to have any prior knowledge of Burden’s work. It appears that this argument was severely undercut by a picture of the defendant’s daughter posing in front of Urban Light that was submitted into evidence and referenced by the court in their decision. Another issue that was raised focused on the plaintiff’s lack of official copyright recordation for the work with the Indonesian IP Office.
Indonesia follows a declarative system whereby an author’s exclusive rights in a work arise automatically once said work has been produced in a tangible form. However, in practice, official recordation of copyright is almost always required in order to enforce such rights. It is therefore interesting that the court seems to have found that an official recordation with the IP Office was not mandatory to enforce copyright in Indonesia, though as a threshold issue the plaintiff still had to prove that the work fell within the scope of copyrighted works under Indonesian law.
That threshold was met here, as the court concluded that Urban Light qualified as a copyrightable work and thus the defendants infringed this copyright by copying and modifying the artwork without obtaining authorisation from the plaintiff. The court imposed strong penalties against the defendants, though they still fell short of the plaintiff’s requested remedies. Most significantly, the defendants were ordered to demolish the ‘Love Light’ installation and any goods containing the words and/or images of ‘Love Light’ within 30 working days from the court’s decision.
Furthermore, the defendants were ordered to publish a public apology both in Indonesian and English through national daily newspapers. As for damages, the defendants were ordered to pay approximately $69,000 in material damages, while no immaterial damages were awarded. Under Indonesian law, compensation for copyright infringement is limited to material damages only and there is no specific statutory formula or method for their calculation, though the law provides that it can be a portion of or the whole revenue generated from the infringing activities. Here, the court awarded the plaintiff less than 2% of their requested damages, though nominally the amount is quite high for a copyright case.
The defendants have the right to appeal the decision, though it is not yet known if they will do so.
Perhaps recognising that this case was about more than just the damages award, Yayoi Shionoiri, executive director at the Burden Estate, stated that “This is a landmark case for the Indonesian court system, and a win for all artists globally. We believe this decision sets a precedent that artist rights can be protected internationally through the application of the copyright framework.”
It may be seen sooner rather than later whether this is an astute assessment or wishful thinking as it is already known that Rabbit Town also has a banana and ice cream installation duplicating various rooms from the Museum of Ice Cream in Los Angeles; a Patrico Sticker installation highly similar to Yayoi Kusama’s Obliteration Room; and an angel wings mural that is nearly identical to Colette Miller’s Wings located in Richmond, Virginia.