IP Issue Spotting at a Gala Evening

This week, this Leo was thrilled to attend an award ceremony for the Top 40 Under 40 Women, hosted by the Business Daily (Kenya’s local business newspaper). Readers can see some of the tweets [but no pics – explanation below] at #JoinThePride or #Top40Under40Women.

Why thrilled? For one, this Leo considers himself a vigorous supporter of the Feminist movement [and, if it were possible, would call himself a feminist, but that’s a discussion for another forum entirely], so it was great to see and honor such amazing women. Second, the event was prolific in terms of IP issue spotting!

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1. TK misappropriation? The event began with a performance by a local dance troupe. By “local” is meant a group of Kenyans, and they performed dances ranging from the anachronistic (1920s American night club mashed with 20^th c. Kenyan hip hop) to the amazing (Cirque du Soleil-esque gymnastics). They also performed dances from at least two ethnic communities in Kenya. One such dance was clearly Maasai-inspired, complete with Maasai shields. This Leo was 99% sure that the dancers were not all Maasai which raises the question – is this TK misappropriation, and would it be actionable under the current TK bill (downloadable here)? According to Part VI of the draft bill, traditional dance and costumes belong to the holders/owners of Traditional Cultural Expressions, and such owners must provide consent for any display or performance of such dance and costumes. So such a dance would only be allowable if the dancers were themselves Maasai, or if the dance troupe obtains permission from the Maasai community.

2. Event rights. Sadly, just as the evening formalities were getting underway, a very loud and very clear announcement was made that photography and video recording of the event by attendees was prohibited. Tragic! Aside from making Tweets far less interesting, this announcement (to this Leo, at least) really set a negative tone for the evening. Nothing says “you’re under our control, like it or not” quite like telling a bunch of tech-savvy under-40s that they cannot use their various electronic gadgets as they may wish. [The intention may have been to control publicity over the event, but in the process the organizers lost a much bigger advertising and networking opportunity - these are, after all, the most well-networked and influential Kenyans!].  

In any case, it raises the question whether the activities/content of the evening could be so controlled, perhaps via some IPR. IP rights in events have been discussed previously (see for example here, and here), and clearly there are no IP rights in the facts of the evening – e.g., the winners of the awards, or the identity of the group providing musical entertainment. Most events allow photos, and Twitter even provides a user guide for live tweeting pics and videos from sporting events (see here). This event was not open to the public, so this Leo supposes that attendees gave implied consent to abide by the stated rules (such as no photos/videos) of the organizers. On the other hand the event was in a private hotel, so did the organizers need permission from the hotel to make such a restriction?

3. Copyright. Finally, the musician for the evening raised the copyright issues of parody, derivative, and public performance rights. The musician performed (arguably) a parody of Fundamental, a popular song by Kenyan Ken wa Maria (the video seems to be hard to find, but see here for a news article). Clearly the song was poking fun at the original, and had made changes to the original. But is that enough for a parody, and is a parody an exception to the copyright law protection of a musical work? Parody in Kenya has been discussed (see here), and in the UK it is now a hot topic (see the IPKat here). Given the lack of precedence in Kenya, this Leo would venture to guess that the use will go unchallenged, and will be relieved if this guess proves to be accurate. Ken wa Maria gains little by attempting to enforce copyright on every would-be parody of his music, while his popularity certainly gains from it.

Hearty congratulations to all award recipients! Truly they are women who are changing Kenya (and beyond).