Last week, while we were enjoying the buzz that Nollywood was getting at the Toronto International Film Festival (TIFF), there was another not so pleasant buzz about stolen scripts and story ideas. Okafor’s Law, one of the Nollywood movies screened at TIFF, was also under the spotlight for alleged copyright infringement.
Apparently responding to accusations from the producers of Okafor’s Law, writer Jude Idada, in an interview on TNS.ng made a pretty convincing case for his claim that his copyright had been infringed by the producers of the movie.
Given that Jude Idada had allegedly had a previous bad experience with the same people, he presents documentation to show that he tried to take precautions to protect himself. Unfortunately, being a writer/artist, it seems that he got carried away by the artistic side and forgot the business side. More unfortunate is the fact that, at least going by his interview with TNS.ng, he is unlikely to pursue a formal claim either through the Nigerian Copyright Commission or the courts. Whether he chooses to make a formal claim or not, there are lessons to be learned from his experience (you can listen to his interview on TNS.ng if you are interested).
What is copyright?
Copyright is simply the sole and exclusive right given by the law to the creator, author or originator of works (literary, music, film, poetry, novels, songs, etc.), for a fixed period, to determine and control its use. Copyright is protected by law in Nigeria just like in other parts of the world. In fact, copyright law is not new to Nigeria; the year 2012, marked 100 years of copyright law in Nigeria.
The Copyright Act provides for “the definition, protection, transfer, infringement of and remedy and penalty thereof of the copyright in literary works, musical works, artistic works, cinematograph films, sound recordings, broadcast, and other ancillary matters.”
According to the Act, for a work to be protected by copyright, it must be original, and fixed in a definite medium of expression from which it can be “perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device.” Once these requirements are met, the work enjoys copyright protection and does not need to be registered. However, for added protection or peace of mind for the creator, the Nigeria Copyright Commission has a copyright registration scheme. It is important to note that copyright law does not protect an idea, rather it is the expression of the idea that is protected.
In the current Okafor’s Law allegation, Jude Idada has released a copy of his registration of his script with the authorities in Canada. What this does is it establishes an independent time stamp for when his expression of the story idea came into existence.
How do we “safely” get from a simple story idea to the screen?
From a story idea, a script is researched, developed, edited and finalised. After the script is finalised, the producer’s job begins in earnest—finding the right crew and cast to realise the script, deciding on a location(s), developing a production plan and a budget, looking for financing, considering marketing and distribution options, getting clearances for copyright and intellectual property protected materials that will be used in the production, getting insurance coverage for the human and material resources, etc.
At this stage, when the concept is being shopped for interest, financing etc., and passing through a lot of hands, it is advisable that you take nothing for granted as many problems could arise, like your concept being ‘stolen’.
As the concept outline, briefs and proposals are being sent out, sign written confidentiality agreements with everyone (including financiers) who comes in contact with the documents. It is also advisable to keep good evidence of the dates of creation of a copyrightable form of the concept. This can be done either by registering with the copyright administrators in your country, or posting a copy to yourself or your lawyer who will retain it unopened until an issue arises. Assert your copyright with the © symbol and date in all copyrightable document.
Things to note
A movie production incorporates the skills and services of over 100 professionals, which means that many contracts for services and release of rights are involved and the production company must mine to the very bottom of all rights that need to be cleared or waived. No matter how careful the production company is, Errors and Omissions can occur, and an insurance policy can be used to prepare for this.
Do not take any contributor’s rights for granted particularly those of the director, the scriptwriter and any underlying works, which the production is based on. All details fully describing the relationship should be included in a contract. For instance, using the scriptwriter for example, the following issues must be covered in a contract:
• Fees — for the basic script and any subsequent use fees and mode of payment.
• Type of rights being acquired for use of the work — is it a full assignment of rights or is the scriptwriter reserving some rights for other purposes, e.g., a production can be granted the rights to a script for a movie only, not for a movie, television series, computer game, etc.
• Delivery dates — when the different drafts of the script are due.
• Warranties — protecting the production company from any third party claims to the work (scriptwriter will usually provide an indemnity for breach of this warranty).
• Payment of net profits — will the scriptwriter be entitled to any share of net profits (from box-office receipts, sales of DVDs, or other forms of exploitation such as merchandising).
• Waiver of moral rights — it is advisable that the production company gets a waiver of moral rights from all the contributors to the project, as retention of these by the contributors can seriously interfere with the exploitation of the movie.
When the production is over, depending on the jurisdiction, the producer and/or the director owns the copyright in the movie, which is usually, fully assigned, with a waiver of moral rights, to the production company. The production company is in a better position to exploit the movie and if you have a clause in your contract that gives you a share of net profits, the better for you.
Writing may be fun for you, but if you intend to make a living off your writing you must understand the business of writing. The law understands the business of writing, which is why copyright law essentially says that if you have put time and effort into creating a piece of writing, whether it be a screenplay or novel, then you should enjoy ownership of that work and be able to exploit it for profit to the exclusion of others.