This image features the boy group Treasure from YG Entertainment, sourced from Pinterest and used for non-commercial purposes.
Written by Natassja Putri Gumilang
Indonesia is proud to be able to produce talented writers who contribute their masterpieces to the world of literacy. Based on data from the national Literacy Development Index (HDI) in 2024, there was a remarkable increase with a score of 73.52, exceeding the target of 71.4 and last year’s result of 69.42. This figure is in the medium category, based on a survey obtained from 174,226 respondents aged 10-69 years in 38 provinces and 514 districts/cities in Indonesia (National Library of the Republic of Indonesia, 2024).
Factually, so many young Indonesians have begun to spread awareness of literacy through social media that it increases the attractiveness for the community to start a new habit of reading or writing.
Writing is a very fun activity, especially for writers who have a lot of imagination that needs to be poured into a realization, whether it’s through posts on social media or still stored in drafts. One form of writing expression that is often in demand is fanfiction or Alternate Universe (AU) which is also a place for fans to imagine and create new stories based on their idols. By writing fanfiction, we can present a different story from the existing reality, explore another possibility, and express our admiration for our idols in a creative way.
Fanfiction is a form of expression of fans’ creativity in pouring their imagination about idols into works of fiction, such as writing or comics. Through fanfiction, anyone can freely express their ideas and imagination in the form of storylines, characters, and endings that are different from the reality of the original characters. The growing popularity of the Korean industry has attracted many people to follow everything related to their idols. In some cases, fans’ imaginations go beyond the limits of reality, making fanfiction an outlet for their creativity. Since 2019, the trend of Twitter-based fanfiction has been growing and is known as Alternate Universe (AU) (Zarnuji, 2020).
Alternate Universe (AU) is a work of fiction created by using the image of an idol artist (usually a celebrity such as a member of a certain Boyband in South Korea) by changing the name, occupation, background according to the imagination desired by the creator to invite readers and more often in the form of digital writing (Wahyuningsih, 2024).
Basically, fanfiction and Alternate Universe (AU) are part of fan fiction. However, in Indonesia, they are often differentiated based on the platform used. Fanfiction generally refers to fanfiction works published on platforms such as Wattpad, while Alternate Universe (AU) is better known as fanfiction stories written on the X platform (previously Twitter) with visualization formats in the form of images or chat conversations.
Currently, a hot topic of discussion is what if a fanfiction work is commercialized into a physical form by a publisher? This issue raises pros and cons, especially from a copyright law perspective. This article will review it based on the Copyright Law of 2014 as well as various relevant academic literatures.
Fanfiction/Alternate Universe (AU) according to the Indonesian Copyright Law 2014
In Indonesia, copyright is regulated in Law Number 28 of 2014 concerning Copyright (Copyright Law). Based on Article 40 paragraph (1), written works are included in the category of creations protected by copyright.
“(1) Protected creations include creations in the fields of science, art, and literature, consisting of:
a. books, pamphlets, illustrations of published works, and all other written works…”
However, fanfiction that uses characters, settings, or other elements from existing works can be considered copyright infringement for creating derivatives of the original work without the permission of the rights holder (Baharani, 2020).
Still quoted from the same journal-according to Sunia Baharani (2020), that economic rights are exclusive rights owned by the creator or copyright holder to obtain financial benefits from their creation. In the context of fanfiction based on previously published copyrighted works, copyright law does not allow for free commercialization. Fanfiction in its traditional form should only circulate as entertainment for fans and not be sold. Therefore, if there is a practice of commercialization of fanfiction, it can be considered as copyright infringement as implied in Article 43 letter d of the Indonesian Copyright Law.
“d. the creation and dissemination of Copyright content through the media of information and communication technology that is non-commercial in nature and/or benefits the Creator or related parties, or the Creator expresses no objection to such creation and dissemination…”
Then what if this fanfiction is not between fellow written works, but by using the name or visualization of an artist/idol’s face as a character in our AU writing?
In fanfiction, the use of Korean artist characters is related to related rights as regulated in Article 1 Point 5 of the Copyright Law. Related rights itself is defined as “rights related to Copyright which are exclusive rights for performers, phonogram producers, or broadcasting institutions.” In this context, Korean artists are more appropriately categorized as Performers, as stipulated in Article 1 Point 6 of the Copyright Law, which defines a Performer as “a person or several persons who individually or collectively perform and display a Creation.” Although the Copyright Law does not provide a more detailed definition of who can be categorized as a Performer, this is further explained in Article 3 Letter (a) of the Rome Convention 1961. The Convention defines Performers as “actors, singers, musicians, dancers, and other individuals who act in a performance of songs, the delivery of news, the recitation of declamations (rhymes), actors in plays or dramas, or those engaged in other forms of art and literature” (Dewi et al., 2019). Thus, Korean artists used as characters in fanfiction books have related rights that need to be considered in accordance with the provisions in the Copyright Law and the Rome Convention 1961.
Based on Article 20 of the Copyright Law 2014, it explains the moral and economic rights of Performers:
“Related Rights as referred to in Article 3 letter b are exclusive rights which include:
a. moral rights of Performers;
b. economic rights of Performers;
c. economic rights of Phonogram Producers; and
d. economic rights of Broadcasting Institutions.”
In this case, both the author and the publisher gain popularity and promising commercial benefits by utilizing the name and visuals of the artist that were previously used as character visualizations in fanfiction works. However, they do not have permission to market or commercialize something that uses the artist’s name and visuals. From the perspective of basic business ethics, this action is very unethical and difficult to accept, because it involves using elements owned by others without permission, while the results of the commercialization only benefit the author and publisher, then related to the use of visuals or portraits of artists or idols for promotional purposes and obtaining royalties is regulated in Article 40 paragraph 1 letters k and i of the Copyright Law. The law stipulates that all published photographic works or portraits receive legal protection for 50 years from the first time they are announced. Based on these provisions, every individual is prohibited from obtaining profits, royalties, or commercializing a portrait either in the form of duplication, distribution, or other use without the written consent of the person being photographed. Therefore, it can be concluded that if a written work uses a portrait or faceclaim of an artist without written permission with the aim of obtaining commercial gain, then both the author and the responsible publisher can be considered to have violated the law as regulated in Article 115 of the Copyright Law (Zarnuji, 2020).
“Any person who without the consent of the person being photographed or his/her heirs carries out Commercial Use, Duplication, Announcement, Distribution, or Communication of the Portrait as referred to in Article 12 for the purpose of advertising or publicity for Commercial Use either in electronic or non-electronic media, shall be subject to a maximum fine of IDR 500,000,000.00 (five hundred million rupiah)
Many idols or groups have registered their names or logos as trademarks in various countries, including Indonesia. This registration provides legal protection against the commercial use of their names by third parties without permission. In accordance with the provisions of Law Number 20 of 2016 concerning Trademarks and Geographical Indications (Trademark Law), the use of a name that has been registered as a trademark without the owner’s consent can be considered a trademark violation. For example, if the name of a boyband or its official logo is included in an advertisement or used on a particular product without permission, this action can be categorized as a trademark violation. This has the potential to result in legal consequences for the violating party, including lawsuits from the trademark rights holder (Nadhira, 2024).
Thus, every artist under a certain agency is generally protected as part of their company’s trademark. For example, SM Entertainment houses approximately 135 artists whose trademark rights have been legally protected (Trademarkia, n.d). If someone wants to use the name or visualization of one of the artists from the agency for commercial purposes, they must obtain official permission from SM Entertainment as the party that owns the rights to the artist and shares the royalty profits according to applicable provisions. If such use is carried out without permission, then such action can be considered a violation of intellectual property rights, which has the potential to result in legal consequences for the violating party.
Fanfiction/Alternate Universe according to International Laws
Intellectual Property Rights (IPR) in Indonesia have become part of positive law as a result of the ratification of various international covenants, such as the Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Literary and Artistic Works. Based on these two conventions, IPR is divided into two main categories, namely Industrial Property Rights and Copyright (Handoko, 2015; Dewi et al., 2019).
Copyright has a broad scope of protection, distinguishing it from other types of rights in the realm of Intellectual Property. This protection includes original works in the fields of art, literature, and science, as well as related rights, such as those owned by performers, phonogram producers, and broadcasting institutions. Unlike Copyright which is regulated in the Berne Convention, related rights are not included in the convention, but are regulated separately in the Rome Convention 1961. This convention is the basis for protection for parties involved in the dissemination of copyright, known as Neighboring Rights. In addition to protecting original Copyright, this regulation also includes derivative rights, namely copy rights (neighboring rights or ancillary rights), which are specifically granted to individuals involved in the fields of performance, recording, and broadcasting (Kusmawan, 2014; Dewi et al., 2019) Fanfiction has been legally regulated in several countries, including the United States. Based on Section 107 of the Copyright Act of 1976, fanfiction can be categorized as fair use, which provides legal protection for its authors. In many cases, fanfiction is considered exempt from copyright law under the provisions of fair use. However, to avoid potential violations, there are several steps that can be taken, one of which is not trying to sell fanfiction works in any form. By following this principle, authors can avoid legal problems related to copyright (Canella, n.d; Carson, n.d; Dewi et al., 2019).
Then how can we ensure that the Fanfiction/Alternate Universe that we have announced does not violate existing laws and regulations?
The interpretation of Article 43 letter d itself regulates the exceptions to copyright infringement in the context of fair use. Simply put, this article states that the creation and distribution of a copyrighted work is not considered a violation if it meets the following two conditions:
1. It is not done for commercial purposes, which means it is not distributed to gain economic benefit. For example, publishing the Alternate Universe (AU) work to platform X for free and publicly without receiving a single cent in fees/royalties.
2. It is beneficial to the Creator or related parties, or the Creator does not object, which means that the content created provides benefits to the original creator or copyright holder, so it is not considered a violation or the Creator/related party explicitly states that they do not object to the creation and distribution of the derivative work. For example, a Writer allows fanfiction based on his novel as long as it is not sold.In addition to the two main requirements, there are several things that need to be considered to remain in accordance with copyright rules:
1. Citing the source
If using visualization in an Alternate Universe (AU) work, for example by using photos of K-pop idol members, it is recommended to cite the source of the photo and add a disclaimer that the use is not commercial.
2. Avoiding the use of exclusive artist content
Using exclusive artist content without permission is a violation of copyright, as regulated in Article 9 of the 2014 Copyright Law. This action violates the economic rights of the copyright holder, which in this case can be the artist’s agency or the artist themselves.
Conclusion
It can be concluded that the use of copyrighted works, including names, visualizations, and elements related to artists or idols, must pay attention to the legal aspects in accordance with the Copyright Law and the Trademark Law in Indonesia. Fanfiction and Alternate Universe (AU) can be considered legally valid if they meet the principles of fair use, namely not for commercial purposes, providing benefits to the original creator, and not violating the economic rights of the copyright holder. However, if the work is used to gain profit without official permission, both the author and the publisher can be considered to have committed copyright infringement.
In addition, artists who are members of entertainment agencies have generally been registered as trademarks, so that the use of their names or visuals for commercial purposes without permission can be subject to legal sanctions under the Trademark Law. Therefore, every individual or party who wants to use elements related to artists in their work, especially for commercial purposes, should obtain written permission from the copyright owner or trademark holder to avoid legal consequences.
References
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