PROTECTION OF CREATOR'S ECONOMIC RIGHTS TO PORTRAIT COPYRIGHT (A Case Study of Using Nyonya Meneer's Portrait)

Abstract

This case started when PT. Bhumi Empon Mustiko (BEM) uses a portrait of the face of Lauw Ping Nio or known as Nyonya Meneer which is used on the packaging of a telon oil product used in commercial traffic. Nyonya Meneer is the founder of a factory that produces herbal medicine known as the brand logo or marked with a distinctive mark on its herbal medicine product, namely "Nyonya Meneer". This herbal medicine factory was very well known and was established long before independence, namely in 1919, under the company PT Perindustrian Njoja Meneer (PT Nyonya Meneer) however, this company was declared bankrupt by the Court in 2017 through the Supreme Court Cassation Decision Number 1397 K / Pdt .Sus-Bankruptcy / 2017. After being declared bankrupt, PT. Bhumi Empon Mustiko (BEM) then bought 72 Nyonya Meneer's trademarks. In their lawsuit, the party representing Nyonya Meneer as the Plaintiff said that, "the photo or portrait is a legacy of Nyonya Meneer's extended family" which was claimed under Law No. 28 of 2014 concerning Copyright. The problem is; First, does Nyonya Meneer or its heirs still have the rights to the Mark which has been transferred to a third party based on positive legal procedures and provisions under the Trademark Law regime? Second, if under the legal regime the brand no longer gives rights to Nyonya Meneer, Can the copyright law regime still protect its copyright on the poret used as a trademark for the product? By using the method of normative legal research which is followed by a quality analysis of the norms of positive legal law in effect in Indonesia, including the articles contained in Law No.28 of 2014 concerning Copyright and the articles contained in Law No. 20 of 2016 concerning Trademarks and Geographical Indications, Law No.37 of 2004 concerning Bankruptcy and the Civil Code, it can be concluded that Nyonya Mencera and Nyonya Meneer's Inheritance, no longer have economic rights over photographic works or copyrights on portraits. , both under the protection regime under the copyright law, and according to the regime of the Law on Trademarks and Geographical Indications.