It has become increasingly popular for cafes to crop up that have a theme inspired by a fictional character or setting, whether it’s from book, movie or TV show. Sydney received its own Hello Kitty Café in November 2015. Melbourne has George’s Bar, inspired by Seinfeld’s George Costanza, which opened at the start of 2016. Outside of Australia, Philippines opened its Harry Potter-inspired café late last year. No stranger to character themed cafes, Singapore has just opened a new Pokemon-themed café to join others including a DC Comics Super Heroes Café and The Little Prince Creamery.
So what’s the law surrounding these cafes? Do they breach copyright or infringe trade marks? If you opened one of your own, would you need consent from the IP owner of the characters? Is it okay if your café was just merely inspired by it?
Under the Copyright Act 1968 (Cth), Copyright in Australia is the right to:
- Reproduce the work in material form;
- Publish the work;
- Publicly perform or communicate the work;
- To make an adaptation of the work.
The key thing to note with copyright laws is that they do not protect ideas or themes, but rather the expression of it in books, on the screens, in music, etc. If you ran a Harry Potter themed café, for instance, and you printed and photocopied pages of the novels and used them as wallpaper, this arguably infringes copyright. However, a café that is just inspired by Harry Potter and expresses ideas in Harry Potter based on the café owner’s interpretation is unlikely to have violated copyright since it is the expression that is important. It is far easier for a character-themed café to violate copyright for graphic novels or artwork – that is, anything visual – than for written or literary works.
Trade marks for Character Themed Cafes
On the other hand, trade mark violation could be a larger concern for character-themed cafes. To return to the Harry Potter example, where the copyright is owned by author JK Rowling, its trade mark is owned by entertainment company Warner Bros (in Australia as well). In 2009, a UK food blogger who ran an underground restaurant decided to throw a Harry Potter themed dinner, an event that was ticketed. 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.
It is recommended that owners of character-themed cafes do a trade mark search before embarking upon the creation of their café. If the trade mark has been registered in Australia, then it generally will not be a good idea to continue using it without permission of the trade mark owner, as you will be infringing the trade mark owner’s intellectual property rights and can be prosecuted.
If you are considering starting your character-themed café, ensure that you are not using registered trade marks without permission. For example, do not use the Harry Potter logo on your café menus, as this is a trade mark violation. Using visual depictions that are too similar to that in a film or a book may also attract intellectual property infringement accusations, and consent should be sought before this is done to avoid legal trouble. Contact our intellectual property lawyers if you have any questions.