By Osiri Ndukwe
Big Brother Naija: Who owns all the creativity in the house?
Housemates’ Creative Acts in the Big Brother Naija House: Who owns the Creativity?
The pace at which innovations develop in our world today could be compared to the speed of light. Ages ago, traveling from Nigeria to UK could take months, but now, you do not need more than 6 hours of your time to get there. Again, in place of using weeks to send loads of documents to a distant location, you could send them via emails within seconds.
If I start listing innovations that have taken place recently, the subject of this write-up may never be touched. It just shows how we now live in a world fully controlled by innovations or intellectual property (IP).
What is IP?
IP is a work or invention that is the result of creativity such as the manuscript or design to which one has right and for which one may apply for patent, copyright, trademark . IP simply put, is the creation of the mind. There are basically four major types of IP obtainable in Nigeria – Trademark, Patent, Industrial Design and Copyright.
Trademark is a distinctive sign which helps consumers identify the source of particular goods or services. It can be in form of text, word, numeral, phrase, symbol, signature, smell, shape, colour, sound, packaging, texture or combination of any of these elements.
The intent behind unique trademark is that the consumer can associate the specific mark with the manufacturer of goods or service provider. For instance, when a consumer looks at a product with the half bitten apple symbol, the consumer would relate the product to Apple Inc.
Patent is an exclusive right granted to an inventor, to exclude others from using his invention in any manner without his permission. Please understand that an invention can either be a product or a process, however, it must be new, result from inventive activity and be capable of industrial application, to be patentable. This creates a monopoly for the inventor over the subject matter of the patent and once the patent is granted, it is valid for a period of twenty years.
On the expiry of the period of registration of the patent, its exclusivity is terminated and the invention enters into public domain for third parties to work the patent.
Industrial design is concerned with the aesthetic and ornamental aspects of an article.It may consist of the shape of the articles, patterns, lines and the colour . The owner of a registered industrial design has the right to prevent a third party from making or selling products bearing the protected design. It is the creative activity that leads to the ornamental appearance of a product .
Copyright refers to the right granted to creators, authors, artists and composers for their creative work or to performers, artists and broadcasters for their related rights. Like patent laws, copyright is also a monopolistic right.It gives exclusive right to control the selling, publishing and reproduction of any literary, musical, dramatic, artistic or architectural work created by the author. It is however, important to note that copyright covers only ‘tangible’ forms of creations and not mere ideas, that is, a mere idea is not afforded protection under the Nigerian law.
Understand that the general rule is that initial ownership of copyright is vested in the author of the work. However, there are certain exceptions provided under the Act :
i. In the course of employment, the copyright of a work authored by the employee vests in the employer as long as the work was done during the course of the employee’s employment;
ii. Where there is a contract. Where parties contract that the copyright of a work would vest in a particular person/party to the contract, such party would own the copyright to the work irrespective of who the author is; and
iii. Where it is a commissioned work under a contract of service. Where the author of a copyright is one who is operating under a commissioned work, the parties can agree that the copyright will vest in the party who commissioned the work and this will eventually be the case.
From the above explanation, I believe you now have a broader understanding of what IP is all about. Now, let’s take a peep into the Big Brother Naija House Season 4, for some of the possible IP issues that may have arisen during the 99 days sojourn.
Big Brother Naija House Season 4: Pepper Dem
Big Brother Naija (BBN): Pepper Dem, is the fourth season of the Nigerian reality television show. It was launched on the 30th of June 2019 on Dstv Channel 198. The winner of this year’s edition goes home with the cash prize of ₦60million as announced by the Chief Executive Officer of Multi Choice Nigeria, Mr John Ugbe.
This fourth edition started with 21 housemates - Avala, Diane, Ella, Esther, Frodd, Gedoni, Ike, Isiloma, Jackye, Jeff, Khafi, Kimoprah, Mercy, Mike, Nelson, Omashola, Seyi, Sir Dee, Tacha, Thelma and Tuoyo. However, in the course of the competition five other house mates – Cindy, Elozonam, Enkay, Joe and Venita, were introduced into the house.
The reality show scheduled to last for 99 days will come to an end today - Sunday, 6 October, 2019. It has been full of creativity, entertainment and intrigues. And the creativity of the Housemates has been outstanding, but the burning question is, who owns the IP rights (IPRs) of these creations? Is it the housemates that created them or the BBN?
That being said, let’s drive through Pepper Dem House for some of the IP issues.
1. Khafi was fond of referring to herself as “a cup of khafi”; while “Warri” became Omashola’s second name. Tacha who was the most nominated Housemate for possible eviction; prior to her disqualification, seemingly composed the anthem “no leave no transfer”, “I pin” as a way of mocking her fellow Housemates for nominating her for eviction. In fact, the anthem was only sung whenever she survived eviction. Some of her other eviction-survival anthems were “I full ground brekete” and “Till 99 days”. Mercy was also known as “Lambo” or “Mercy Lambo”.
I can go on and on with different slangs created by the Housemates. But it should be noted that those words no matter how ingenious they are, have either previously been said or used. An example is Omashola, who would usually get “Street” as a response whenever he shouts “Warri”. Warri is the name of a city in Nigeria and also commonly used by indigents of that locality. Efe, the winner of the BBN Season 2 was also popular with the “Warri” slang, likewise AY, the popular comedian.
It can therefore be said that these slangs lack one of the essential requirements of copyright - originality . Also the general rule that governs copyright is that for a work to be afforded protection, it must have been expressed in some tangible form; that is the rule of fixation . Tangible medium means it should be in a perceptible medium of expression. It can then be said that these slangs or slogans have no protection under the Copyright Act.
However, the slogans can as well fall under trademarks. But the general rule that governs trademark is that it has to be registered in order for it to be afforded protection. Although this general rule has exceptions, I am of the opinion that those exceptions will not apply in the instant scenario, so it will be needless to delve into them.
Consequently, the Housemates cannot claim the slogans as their trademarks since it has not been registered. More so, the slangs or creative words are not used in the course of trade in respect of goods and services which is a major function of a trademark.
Another IP issue has to do with the ownership of the artistic works created by the Housemates in the course of the reality show.
On 22 July, 2019, the Housemates had a task of drawing each other. This task was carried out with the materials provided by BBN. So, the question is, who owns this artistic work?
In answering the above question, recourse must be made to the general rule under the Copyright Act. Which is, initial ownership of copyright is vested in the author of the work, however this general rule is subject to some exceptions, as mentioned earlier in this writing. Where there is an agreement between parties that the copyright of a work would vest in a particular person/party to the contract, such party would own the copyright to the work irrespective of who the author is.
Therefore, the ownership of the drawings made by the Housemates will reside with them in the event there was no prior agreement with BBN, otherwise, the drawings are owned by BBN.
On many occasions the housemates were tasked with making presentations, such as drama, comedy shows, advertorials, singing, etc. These presentations fall under the ambits of copyright. Some of the works eligible for copyright as provided under the Copyright Act are literary works, musical works, artistic works, cinematography films, sound recordings and broadcasts.
From the above, it can be said that these presentations made by the Housemates are capable of being protected since it has been expressed, beyond a mere idea. However, as noted earlier, this will depend on any existing agreement between BBN and the Housemates as well as the sponsors of the various segments where these works were created.
The final point to consider is the ownership of the photographs taken by the Housemates with the Oppo phones, which were provided by BBN. It was customary to provide the Housemates with smart phones during their Saturday nights’ party for the sole purpose of taking pictures.
The general principle is “he who clicks the shutter of the camera owns the copyright” subject to some exceptions. However, employers own the copyrighted work of their employee, where such is created within the course of employment. The relationship between the Housemates and BBN is not of employer-employee relationship, this exception will not apply. It then takes us back to whether there exists any form of agreement between the Housemates and BBN in respect of who would own the copyright in the photographs taken by the Housemates.
It is clear from the above that every creator /author of a work is entitled to enjoy the benefits of his work, provided it is not subject to the exceptions provided. The law allows the Housemates to own their creations in the BBN House, unless they forfeit same through agreement, by assigning their ownership in their creations to BBN or any other person.
*Osiri Ndukwe is an Intellectual Property and Technology Practitioner.
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