How to Film in Nigeria and still be human by Niyi Akinmolayan

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MAKING MONEY FROM INTELLECTUAL PROPERTY (PART2 – FICTIONAL CHARACTERS)

Papa-Ajasco-Reloaded

FICTIONAL CHARACTERS IN FILM: THE REAL GOOSE WITH THE GOLDEN EGG

Nigeria is a land with immeasurable creative talent and home to an old but thriving film industry. The industry has been thriving for years, getting stronger and better with each year. A Forbes report from as far back as 2011 gave this impressive review on Nollywood:

“Nigeria’s movie industry is thriving, and it’s about time you took notice… After Hollywood, it is the second largest in the world – even bigger than India’s Bollywood on  per-capita basis. Nigerian movies are immensely popular, particularly in Africa, where they currently outsell Hollywood films. And Nollywood stars are much more popular on the continent than their Hollywood counterparts. Chances are that Kenyans or Malawians will better recognize Genevieve Nnaji and Ramsey Nouah (both Nollywood idols), than Julia Roberts and Denzel Washington.”

In fact, we deserve some accolades.

However, if you are like me, you may wonder why such a “busy” industry is not making enough money to keep our economy afloat. Why can’t our movies make $1.2 billion like Black Panther? Why won’t people buy mugs with pictures of our animations on them? Why, why, why?! Where is our money?!

I have pondered through this long enough to come to one conclusion: we killed the chicken with the golden egg. “And what is that?” you may ask. I’ll try and answer that with a few foreign examples: What does Fast and Furious, James Bond, Spiderman, Frozen and Star Wars have in common? Well beyond the millions of dollars behind these franchises, these projects were built around one thing: FICTIONAL CHARACTERS! That’s the chicken with the golden egg!

Fictional Characters in Nigeria: Our Chickens

I am sure you are thinking – how can I expect a Nigeria franchise to gross what likes of Black Panther are grossing? To that I say, why not?!

Let’s look at a few names that may ring a bell: Binta (from Binta and friends in the 90s), Ms. Pepeye, Boy Alinko, Papa Ajasco, Aki & Pawpaw, Mama G, Osofia, Shegs (from Supa Strikas) and Toyin Tomato. These are characters from our very own Nigerian film industry. They had the influence and could very well have become financially viable assets to their owners.

patience-ozokwor-enyinna-nwaigwe-ali-baba-sola-sobowala-pose-for-photo-on-movie-set-of-the-wedding-party-2

But what happened?!

One primary thing that jumps at me is Dilution. What makes a fictional character valuable is its individuality. The billion-dollar international fictional characters that you see today are distinctive and identifiable, with unique features that are not easily replicable. These characters are treated like the valuable assets they are and protected with all the legal mechanisms available (more on this later) to ensure that their identity is not diminished or diluted by unauthorised persons.

In Nigeria, however, these assets are left unguarded and become susceptible to interferences and use by unauthorised third parties, which subsequently kills the value of the character in the public eye.

A common mistake is movie stars being allowed to play the character, outside of the project or production that created the character. When this happens, viewers are led to think of the actor as an embodiment of the fictional character and it becomes difficult to separate the role actor from the character. This severely undermines any attempt to commercialise the fictional character. For example, Osita Iheme and Chinedu Ikedieze played the role of Aki and Pawpaw (Characters that originated from the Aki na Ukwa blockbuster that was released in 2002) across different unrelated film projects, until the later part of their careers. By doing this, it has become difficult to separate the actors from the fictional characters, and therefore fully commercialising the fictional character is difficult. Dilution also happens when the peculiar features of a fictional character is replicated across several unrelated film projects.

Now that it’s done, what can we do to get it right?

The first step is to properly define original characters carefully, with as much detail as possible. This can be done through thick story bibles from the writers, distinctive costume from the fashion directors, or unique names that no one can miss.

The next step is to protect the characters from use by unauthorized third parties. This has numerous implications and is carefully assessed under the heading below.

Legal Ways to Protect Fictional Characters

There are a number of mechanisms for protecting and securing ownership rights over fictional characters. This is important as, only the true owners of the rights in a character are entitled to use it or license it out for the purpose of merchandising or adapting the work into different formats.

Some of these mechanisms are:

  1. Copyright: Copyright covers the legal rights to exclusively use creative works. For a fictional character to be protectable by copyright, it has to be original and creative with distinctive features and characteristics that can be easily identified. As the law only protects expression of ideas and not just ideas, it is advisable to have a distinct visual representation of the character and for it to be well defined and unique.

The World Intellectual Property Report on Character Merchandising says that “generally, no one may, without the authorization of the owner of the copyright in a work, exercise the economic or exploitation rights in that work or in respect of a work which is substantially similar to the copyrighted work or which contains the essential characteristics of such a work.”

What this then means is that the use of any of the recognizable features of a fictional character (e.g. physical appearance or frame of a character) without the permission of the owner of the copyright is copyright infringement.
Copyright therefore provides its owners with a platform to control the use of the character and preserve its value.

  1. Trademarks: This is simply the registration of the name or likeness of a character as a trademark. Unlike Copyright, the trademark must be registered to obtain protection. This registration grants perpetual monopoly to its owner. An example of this is the registration of the Powerpuff Girls cartoon characters as trademarks with respect to clothing. This provides the owner of the trademark with the exclusive right to use these cartoons on clothing.

It should finally be emphasized that a trademark does not protect the rights in the fictional character or the personality per se, but only their embodiment in a distinctive mark, usually in relation to the goods or services for which the mark is registered.

  1. Contracts: Due to the complexity of ownership rights and identifying the origin of rights in fictional characters, contracts are the tidiest and most efficient way to secure rights in a fictional character.

When it comes to harnessing financial value, it is hardly the creator of the fictional character that does the commercialising. The various property or personality rights vesting in the character will (therefore) be the subject of contracts (such as transfer or license agreements or product or service endorsement agreements) enabling one or several interested third parties to be regarded as authorized users of the character. A perfect example is the Stan Lee, Marvel and Walt Disney dynamic, with Stan Lee being one of the co-creators of the well-known Marvel Characters (Black Panther, Thor, Iron Man, etc) to Marvel which has the production rights for the films with these characters and Walt Disney who owns all (well almost) of the relevant rights as it concerns these characters.

All of this was put together by contracts; contracts of assignment (transferring all the rights), contracts of licensing (retaining ownership rights but giving out rights to use), down to special contracts with the talents (ranging from script writers, animation designers, actors, etc).

An interesting example is the Pierce Brosnan contract with the producers of James Bond. It has been popularly known that on signing his contract, Pierce Brosnan signed off his public right to appear in a tuxedo in any other film. Contracts like this help to preserve the integrity and, in turn, the financial viability of Fictional characters. Without that, you have nothing!

Who owns the IP rights to the fictional character in a film?

The rights attached to a fictional character are in principle owned by the creator of that character, unless the creator has transferred his rights, or created it in the course of his professional activity for his employer or if the creator has died (in which case, the rights revert to the estate of the decease).

So, for instance, the owner of a Nigerian character in a film is the script writer (i.e. if the screenplay is an original work), except there is a contact transferring that right to the producer.

even animated characters are not left out

even animated characters are not left out

AND NOW…

Let’s end with this beautiful picture or dream. One day, there will be a great animation creation out of Nollywood (side-eye Niyi), with international film distribution deals and merchandizing value running into billions of dollars.

We have what it takes, so let’s get to it!

 

joy lawyer

Joy is an Associate in the Intellectual Property (IP) Department, providing general legal support and advice in all aspects of this practice area, including Trademarks, Patent, Industrial Designs and Copyright matters.

She lays particular emphasis on IP prosecution, advisory and enforcement in various African countries. She applies her passion for meeting needs to her service to clients within the practice area.

 

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Comments

  • Posted: July 15, 2018 13:43

    IC Blackman

    Thank you. I'm a fan! Great information once again. I think naive unknowns are at greatest risk of intellectual property theft, unfortunately. This article should by all measures be especially useful for this group.
  • Posted: July 16, 2018 08:19

    Talius Dike

    This was enlightening. Thank you very much, Niyi and Joy.
  • Posted: July 18, 2018 08:09

    bisi

    Thank you for this enlightening piece.
  • Posted: July 18, 2018 13:12

    Tosin

    Wow! by the time i got to the end of this post, I just found myself clapping. Brilliant, and this is really so possible in Nollywood! one GBOSA for Joy, another one for Niyi
  • Posted: August 13, 2018 15:48

    Chidebere

    Very enlightening.. And inspiring too. Thanks a lot.
  • Posted: October 19, 2018 05:14

    EzeNwanyi

    Totally enlightening. I could definitely picture myself doing things right. LET'S GET IT NOLLYWOOD!!