– Dick, the Butcher in Shakespeare’s Henry VI
On attending the Centre for Intellectual property and Information Technology Law (CIPIT) World Intellectual Property day at the Strathmore Law School, I was a bit shocked at the turn out. Lawyers easily outnumbered the visual artists, despite the session being based on the film industry and the Intellectual Property Rights therein. As an aspiring film-maker, fine artist, photographer and a former reader of laws I am all too well aware of the legal issues that the creative industry in Kenya faces. Piracy, bullying by the broadcasters who sometimes tweak your script and broadcast your show as their own to your total exclusion, contracts whose terms are not fulfilled under the threat of being blacklisted by industry oligopolies, copycats who change the colour of your painting and then claim it as their own; these are just some of the complaints I come across daily.
I, at least, expected some of these complainants to be sitting in the room ready to raise hell. Instead the crowd was a mix of IP lawyers, some of whom were simply there to show face for their firms, and a sprinkling of industry giants inevitably linked to the Kenya Film Commission, Performance Rights Society of Kenya (PRISK) and Kenya Association of Music Producers all of whom were presenting on the issue. It seems the assumption that lawyers were hoofed animals with wings for ears and horns for noses was not enough to bring even the most curious of creatives to the venue.
In 2007, WIPO (World Intellectual Property Organization) completed a study that ranked the creative economy in Kenya as the fifth largest contributor to the national economy. The total value added of copyright-based industries in 2007 amounted to about KES 85.21 billion, which represented 5.32% of Kenya’s GDP, doing better than the agriculture, forestry, education and health sectors of the Kenyan economy. Assuming the figure has grown, how then do we, as creatives, manage to sit back silently and not push for a cultural policy of some sort or even address our issues?
The answer is simple: we hate lawyers! How else do you explain an event, hosted for the benefit of an industry to enable its stakeholders discuss legal matters pertinent to their work, failing to attract its very stakeholders? We were, either way, invited to an impromptu discussion on the reasons why the creative industry at large was very shy of lawyers or legal protection of any kind, yet so loud when it came to complaining about the injustices they did not bother to protect themselves against from the onset.
The discussion brought some rather interesting points from the creatives:
- I don’t copyright my scripts because it costs money (but I will complain when my script is stolen, tweaked and broadcast as someone else’s)
- I can’t sign a non-disclosure agreement with broadcasters and producers because they have the upper hand and they are doing me a favour by looking at my script so they basically have a right to steal my idea; it’s a backhanded compliment to my artistry
- I can’t challenge a non-performance of contract by a broadcaster or producer because I risk “never finding work in the industry again” (they operate like a cartel/oligopoly anyway)
- I can’t go to a lawyer because they are expensive and lawyers are out for blood, they never leave a working relationship behind after dealing with two parties
- I signed a contract and now they are using my show on more than one channel, more than once a day and I’m not being paid for that; of course I didn’t talk to a lawyer before signing the contract or read that much of it anyway because lawyers are expensive and out for blood
- I acted in a movie and now it’s being shown all over Africa and I’m not being paid for that probably because I didn’t quite look at my contract or feel I had a say in what could go into it and what could not
- The real enemy is the broadcaster and there is no broadcaster present to defend themselves, but then we’re not quite sure we would say anything to the broadcaster because of the oligopoly threatening to blacklist us
- I decided to collaborate with someone and now they are earning more from the project than I am but we’re friends so we don’t want to bring an evil lawyer to break our friendship up with their legal jargon and blood-lust
- If I’m such a “hard head” another actor/director/producer will do the job for less and with less conditions and COTU won’t let us form any kind of guild or union from which we can dictate a minimum salary like lawyers do
- Court processes take too long and cost too much money, even though we know nothing about them and haven’t taken part in any, we just assume they do
- Is there a successful case of a creative suing and winning? Why would we risk being the first?
There was no shortage of problems from the audio-visual creatives in the room. Then it was the lawyers’ turn. Gerry Gitonga of Bryant &Associates advocates made a gruelling statement: “Creatives don’t sue enough!” and as there was no number of laws governing the kind of issues the creative industry faces, then it was easier to leave it to judges to interpret the laws and provide precedent (previous judgements upheld as law).
The solution was simple: use a lawyer. Of course this didn’t sit well and a number of creatives reiterated the points on lawyers “just wanting the little money we have” which is clearly more important than safeguarding the vast amounts of money we lose to piracy, combating bullying by broadcasters and our ever growing list of problems. Liz Lenjo of JGIP consultants then agreed that lawyers wanted a slice of the creative economy…but that wasn’t the main point because they often take on pro bono cases. Once the assumption of all our legal issues being handled for free settled the room, (perhaps we shouldn’t kill the lawyers after all?) the lawyers were free to advise us on what rights there were in film, seeing as IP rights are now constitutional rights under the new constitution of Kenya.
An Actor whose name I didn’t catch (he claimed to run the blog www.actors.co.ke ) then demanded severally for his rights in film, which elicited suppressed laughter from the writers, producers and directors in the room. The hierarchy of film rests with these three people, often with people arguing academically over who is supreme; the writer or the director. Yes, creating an audio-visual work takes a village…but even villages have chiefs! And when he was told that he had a right to equitable (fair) remuneration (payment) for his performance and that was all, he didn’t seem too convinced. Unfortunately, the law doesn’t provide for you to go into someone’s play, get dressed, made-up, directed and given the lines you are to say and then turn around and claim that you somehow own anything there other than payment for your work.
It is an unfortunate turn of events that someone should look into. It is unanimously agreed, world over, that actors are merely props and can depend only on their skill and fanbase to demand for higher pay. This is the norm in Hollywood, and I do not foresee a future in Kenya where actors can claim rights in a character they neither created nor envisioned; A character whose sentences, quirks, personality, world and purpose does not belong to the actor merely performing.
June Gachui of June Gachui Intellectual property (JGIP) Consultants made a presentation, though late in timing, which proved to be most useful with delightful titbits, like the very unique practice of going through a contract before signing it (something that many visual artists have not heard of), how to put a contract together because verbally agreeing to something isn’t the best for legal remedies, and even going to see a lawyer so they can add some fearful words in there so that each party knows this is serious (pursue you to the full extent of the law). She then went on to discuss the different types of contracts, that is Licences and Assignments, in which if you sign a licence you retain property in the work. If the broadcaster decides to show your work on another network then you can veto this decision, whereas an assignment is giving up all ownership of a project for a lump-sum, therefore if your project is going live in Africa after you assigned it to a media house in Cape Town for a measly amount, then you had it coming.
All in all, I felt that this was a useful platform, save for the failings that were the missing crowd and the lack of broadcasters to address the issues levelled at them. I could easily fault the marketing of the session, seeing as I was there via proxy (my friend, an advocate of the high court, received an invite and thought to bring me along) but the public perception of lawyers and legal issues, especially in the creative industry can easily be faulted too. It was reiterated that artists are not seen as professionals for the simple reason that we refuse to treat ourselves as such.
In an industry mired with friendly collaborations that turn sour, contracts that are signed in excitement and almost inevitably regretted, and scripts that are traded on trust and nothing else, you would think that legal recourse would be something creatives would welcome. The resistance to this idea of signing a contract before collaborating or reading a contract before signing it is mere folly. Should the creative industry be free of the mandatory minimum legal involvement that other industries partake in? Should we shun the legal safeguards that would save us millions in losses? Should we dare to trade in our misconceptions of lawyers for the legal protection a basic training could give us? So maybe we shouldn’t kill all the lawyers just yet, though the law firms present warned that going to a lawyer who actually practices IP would be a great start, seeing as some unnamed lawyer used the contract for selling a car as a contract for licensing a movie.
Should the entire industry undertake a behavioural shift? Upon entering the Kenyan Art scene I was at once steeped in the obligatory practice of the oral agreement. It seems taboo to mention a contract, and more so to take your time reading and analysing one when it is handed to you. Whereas businessmen may have expensive lunches over which they haggle through prices and profits, creatives have chill drinking sessions over which they discuss inspiration and prospective projects with the hopes that no one takes your idea and runs with it. Would it be simple to have a mutual understanding that can be upheld in court? Our problem with unwritten conventions, the ones our creative industry heavily relies on, is that there is no industrial action against the people who break them.
A convention is a set of agreed, stipulated, or generally accepted standards, norms, social norms, or criteria, often taking the form of a custom. Certain types of rules or customs may become law and regulatory legislation may be introduced to formalize or enforce the convention. The constitution of the United Kingdom is riddled with conventions that are outdated but still upheld simply because interested parties will take non-legal action against the party that breaks the convention. There is no such reliance in the Kenyan creative industry.
As stated before, if one should pass up on an opportunity, someone else will jump at it. This divisive politics renders the use of conventions useless in the industry and paves the way for legal recourse. If a convention is broken, it is more likely that the victim will be more victimised than it is that the oppressor will face some kind of justice. The fear of being blacklisted for standing up when wronged is a clear indication of this.
In the face of these industry problems, a lack of unity in voice and industrial action, a common enemy and oppressor, and a common inability to determine, uphold and follow through with oral agreements, should we then maturely move on from constantly broken conventions to legally upheld contracts and agreements? Is it probable that we can set aside out popular dislike for the legal fraternity and perhaps attempt to save the profits of a growing creative industry?
 The Economic Contribution of Copyright-Based Industries in Kenya Dickson Nyariki (Main Author), Oliver Wasonga, Calleb Otieno, Eric Ogadho, Charles Ikutwa, Julius Kithinji: page 58, section 5.2 retrieved from http://www.wipo.int/export/sites/www/copyright/en/performance/pdf/econ_contribution_cr_ke.pdf
Awuor Onyango is a former reader of Laws who now has a vested interest in the creative industry with a focus on Fine Art, Photography, Fashion and Film. She is currently studying Fine Art and Film at Kenyatta University while also writing, taking photograph assignments and using her legal background to navigate the complicated arts, culture and societal murk through organizations such as African Art Agenda, which she co-founded, and others.