Theme Parks and Intellectual Property

CĂ©line Sieu
Assistant Asia-Pacific
Tejix

Is Intellectual Property a real Chinese puzzle?


Since her childhood, Celine has demonstrated a special affection for the amusing, creative and magical world of theme parks. During her undergraduate studies, she got the chance to fly to California in order to work for Universal Studios Hollywood, and learn more from “behind-the-scenes”. Today, she lives in China, where the fast growing economy of the country allows its population to allocate a growing part of their budget to entertainment, opening up a huge market potential to theme park stakeholders. Unfortunately, the intellectual property is a serious issue that affects many developing countries, forcing license owners to fight against misuses on a daily basis.

Since the industrial revolution, our society has evolved by filling up our everyday lives with new products and services. Families have many choices in terms of entertainment, creating the constant need for theme parks to research new concepts that will attract more visitors. It is normal that their design work – the attraction concept - is legally protected. The intellectual property exists for this purpose. It protects creative people by enabling them to profit from their innovations. Just like all forms of property, the intellectual one can be sold, rented or even passed on. Thus, the legal beneficiaries are completely free when it comes to its utilization.

How a theme park manages the intellectual property

When we talk about attractions, the intellectual property covers the industrial property, as well as literary and art property (copyrights). In an attraction, we can indeed find technological components that are usually patented and where the brand is registered, as well as some artistic elements such as the storyline, the music, the decoration, the characters etc. This is why the real challenge for creative people and their operators is to find new ideas, or to negotiate the rights of existing concepts that they would want to use.

I would like to ask you a question: have you ever been to a theme park where the atmosphere and the characters are unfamiliar to you? Not really? This is simply because the park in itself has been created in a way where you can immerse yourself in a joyful and accustomed universe. This can’t happen without the authorization from the rights holders, who are the only people to allow the utilization of immaterial elements that they manage. Thus, the Walt Disney Company can concede to its parks some licenses that allow them to utilize characters from its catalogue, giving the Disney parks’ visitors a real joy to visit them. The other parks can turn to other characters. For instance, Universal Studios in Orlando has built a universe entirely around the magical world of Harry Potter (Warner Bros and J.K.Rowling). Besides the characters, the decoration and the attractions, the merchandise that is sold in souvenir stores is developed according to specific characteristics. The requirements and specifications stipulated in the licensing contract can quickly become a heavy constraint for the contractor. A park that does not comply with all the terms of agreement, for instance by using merchandise that is not listed in the contract or that does not respect the conformity, risks seeing its license cancelled and even being sued for counterfeit.

Public domain

The acquisition of some brands, artworks or characters can be pricey for a park. An alternative way can be to purchase properties that have entered the public domain.

What does public domain mean in terms of intellectual property? When an author creates an artwork, it is normal for him to benefit from it. A certain period after the death of the author (seventy years for France), the work is no longer protected by the intellectual property rights, and enters the public domain where everyone is free to use it. This status is particularly interesting for amusement parks that will have the chance to integrate freely the classic characters in their theme. Let me give you some examples of characters that can be utilized in your future projects. Let’s start with… Popeye! This famous sea dog with superhuman strength after eating spinach has entered the public domain since January 1st, 2009 all over the world, except for the United States because the character is unionized. What is a unionized artwork? It is a work where rights have been sold to several distributors who benefit the exploitation rights over a definite period of time. Another character in the public domain who deserves our attention is the elephant who wears a green suit and whose impeccable wisdom and morality make all the children happy: Babar. If you too, you were born during the X generation or the 1st part of the Y generation, then Babar has played a big role in your childhood with his countless imaginary stories. Nowadays, it is easy to recreate this fantastic world of Babar in a theme park without worrying about the royalties since January 1st, 2008. Finally, the last character that I would like to share with you is not French, but a Belgian who is very well known in France! Tintin, who has been travelling all around the world as an adventurous reporter, hasn’t entered the public domain yet. Why are we talking about him then? Simply because it can help you prepare a project with him in it for the near future! The year where Hergé beneficiaries can no longer ask for any financial returns is the year of… 2053. Yes, I assure you that several authors and companies have already started to organize projects about the Belgian journalist. Well, there are only 43 years left!

Intellectual property, a concept neglected by developing countries, especially China

It is rather rare to find counterfeit products in developed countries. We are largely protected from illegal copies, and therefore do not have to think about this problem when buying things. When we talk about counterfeit, China is the first country that everyone points at. In fact, this is an issue that can be found in many developing countries, including India, South-East Asian countries (Philippines, Thailand, Vietnam etc.), South- American countries and African countries. The explanation to this problem is simply distressing: the legal arsenal is inadequate. Moreover, the intellectual property is still a very young concept for developing countries. Even though a legal framework seems to exist, the concept of intellectual property rights doesn’t seem to be included in their culture and business thoughts. This is why, what appears as unethical to us doesn’t necessarily mean it is for them. Businessmen from developing countries will be more focused on how to maximize their profits instead of submitting to regulations that rule the intellectual property matter.

Let’s focus on one practical example: China. I know, it seems too simple to just rub salt into the wound, but isn’t it true that most outrageous examples come from the Middle Kingdom? Maybe you have had the chance to see a video on YouTube about an amusement park named Beijing Shijingshan, located near the Chinese capital city? This park was created in 1987 and offers today an anthology of intellectual property rights violations. The art of counterfeiting and copying in all its glory. And yet, the Chinese government is the one who manages the park! Their visitors will get to see famous characters from Disney, including Mickey Mouse, which the park’s general manager describes as a “cat with big ears”. Besides Disney characters, other famous mascots, such as Hello Kitty (Sanrio) or Bugs Bunny (Warner Bros) and others, are also tactlessly duplicated. But the plagiarists aren’t done here. Attractions and some shows are also copied, or strangely resemble to those, which were officially registered by big entertainment companies. Unfortunately, the Chinese government denies any counterfeiting and rejects all accusation of copyrights violation. Recently, another theme park located in the Hunan province has built an attraction based on Angry Birds, the video game from Finland, which has created a real buzz with massive downloads since its launch in December 2009. Obviously, the theme park doesn’t possess the rights, but has seen in Angry Birds a good way to make money and attract visitors.

Gardaland (right) has inspired our Chinese friends (left). Photo : Julien Simon

 

However, it seems that counterfeiting presents at least an advantage: promoting the real artwork. When an amusement park takes over a character or attraction, isn’t it promoting the original work? This should allow more visitors to get to know the property, and even increase their affection of the characters. Unfortunately, the fake character or attraction, without any control, is probably very approximate, making the artwork less attractive and nice to look at, and/or making the attraction more dangerous to ride. The result is not pleasant and sometimes risky, as it surely doesn’t fulfill safety standards. In this case, on the opposite of promoting the original artwork, the counterfeit will pull the brand down and harm its image. It is appalling to see that the short-term vision of several swindlers can destroy the work of talented creative people.

When there is a violation of intellectual property rights, the attention turns to counterfeit criminals, as well as to their victims, the license owners. But what about the public? Visitors / consumers of these copies? What is their perception of the situation? I think it would be interesting to classify the visitors into two groups: the local visitors and the foreign visitors. This is not discrimination, but a rationale demonstrated by the culture differences and knowledge between different populations. Three cases can happen regarding the local visitors from developing countries: 1/ they don’t see the wrong in counterfeiting, it is a general phenomenon in their country, thus a part of their usual norm; 2/ they simply don’t know that the characters and attractions in the park are copies of legally registered characters – this can also be explained by the fact that developing countries’ residents don’t get the chance to travel abroad and get the knowledge of the real characters; finally, 3/ they know that the characters are counterfeited, disagree about this illegal utilization, but can’t be bothered since they don’t have the power or motivation to change things. Regarding foreign visitors, I would say that there are two possible cases: 1/ they very much respect the intellectual property, which makes them outraged by the counterfeits and are they strongly opposed to it; and 2/ they know the negative consequences of copying and counterfeiting, but accept that this is a reality of developing countries, and choose to contribute or not as a (non-)visitor of those “fakelands”.

Sometimes, the counterfeit happens to be so big that medias and international community cannot stay emotionless, so they will show their indignation through Internet regarding some extreme and abusive situations. This has happened in 2007 with the fake Disneyland in China, an international gathering has been created in order to put pressure on the park’s managers. Unfortunately, the penalties are weak and have few chances of being applied because of the authorities’ laxity. Nevertheless, a huge group like Disney has the financial and legal means to sue theme parks that do not respect their intellectual properties. So why did nothing really happen? Regarding China, it is obvious that their current growth and economic power plays a major role. Who would dare to offend the planet’s financial donor? But maybe more than a political level, the situation in a country where everything is different, and especially in the legal matters, can explain the ineffectiveness of the beneficiaries to sue anyone for copyrights violations. I, however, remain convinced that the powerful beneficiaries will not always stay motionless. For instance, the 22 fake Apple Stores, which were all over China, have been shut down by Chinese authorities, because of, officially, an international pressure from the medias, but unofficially, mostly because of Apple’s heavy pressure. Note that the brand has all of its products assembled in China, contributing a very positive economy to the country and to its government… No matter what, it seems that the repression from people who handle this kind of matters is not so strict, maybe this is a strategic laxity necessary for future potential projects on the Chinese territory, or other developing countries.

In short

Nowadays, families allocate undeniably a part of their budget to entertainment. Creative people and theme parks’ managers are always searching for innovations to satisfy their visitors. In order to remain the only owner of a concept – attraction – the park needs to file a patent so that they can avoid any illicit utilization of it by a third party. Thus, the Disney parks are blessed by the fact that they can use freely the attractions, characters and decorations from the Walt Disney Company. However, for those who are not related to a huge parent company, they can utilize the characters and their universe that are in the public domain. Theme parks can use them without worrying about royalties, giving the managers and creative people more freedom to work on the characters in the public domain, such as Popeye, Babar and… Tintin in 43 years. Unfortunately, in a constant manner in poor or emerging countries, local theme parks skip the line by using counterfeited characters in order to attract more visitors. Laws on intellectual property are sometimes nonexistent, sometimes exist but strongly neglected, and anyhow, never used correctly. China seems to be the country where they use the most copies and counterfeits, but probably because the international press talks about it more. For the most curious ones, you can find the Chinese versions of Mickey, Hello Kitty, Bugs Bunny and others in a theme park next to the Chinese capital. Despite the negative critics in the world, visitors of these “fakelands” are conscious about the situation, some of them agree and others don’t, some of them despise it and others enjoy it. On the other hand, many beneficiaries seem to close their eyes while others use their artworks illegally, maybe in order to facilitate a future cooperation between them and a country with high consumption potential. Despite a certain laxity, intellectual property remains a serious issue in developing countries, but hopefully, will be properly regulated to fit the country’s development itself.