Copyright protection in stand-up comedy: Are laughs for free?

It is much easier to make babies laugh than it is to bring grown-ups to laughter. It is even much harder to make a living out of stand-up comedy. Nonetheless, the Ugandan audience in particular has a soft spot for entertainment and has so far been faithful to the stand-up comedy branch of entertainment since it became popular only a few years ago. Even from a Law and Economics perspective, the transaction costs are low for the comedians involved so they attain their efficiency moderately quickly.

As we laugh over these jokes, what comes to the mind of an intellectual property advocate is: what does it take to process these jokes? Considering that copyright law protects the expression and not the idea, we would right away be looking at any written scripts of the jokes before they are relayed on stage as well as recordings of the jokes as they are given. This is the material form that necessitates protection.

However, challenges abide when it comes to tracking ownership through expression. The questions posed are: Whose joke was it in the first place? Is Pablo the author of his jokes or does he pick them from some other source? Originality in composition of jokes is not something that comes about easily for many of the artists in this industry and it is noted that many of them repeat the same jokes over and over again with different audiences. If they cannot successfully lay a claim for originality, then it would be harder still to protect their comedy expressions as Intellectual Property. This is where copyright protection in stand-up comedy loses its effectiveness.

It is also harder to protect stand-up comedy where most of the jokes are concentrated on particular themes. For instance, most themes among Ugandan comedians focus on sex and ethnicity. The originality loses itself somewhere in the process of the expression making it difficult to rely on copyright protection for the joke.

It would be expected that the U.S has a more efficient copyright protection over stand-up comedy which is a very lucrative business but the same challenges towards such protection are evident in this country. Some comedians rely on taking matters under their own hands rather than rely on legal inefficiencies. Comedian George Lopez once confessed to having grabbed fellow comedian Carlos Mencia at the Laugh Factory comedy club, slammed him against a wall and punched him in retaliation for joke-stealing. But is violence or vigilantism the solution?

The Laughs may not be for free, but copyright law has no answers either – at least for now.

My Name, not yours: Concerns over the right to Trademark a name.

A Family Law practitioner shared with me a story about a case he handled some time back. A lady had alleged that her ex-boyfriend was the father of her Son. The ex-boyfriend denied parentage. The Lawyer called for a meeting between members of the lady’s family and the man’s family after which it was agreed that a DNA test would be carried out. A few weeks later, the test results revealed that indeed there was no biological connection between the boy and the man. Naturally the conniving lady had known this all along but had apparently tried to use her son as leverage in getting financial support from the man. She had even given her son the same surname as her ex-boyfriend. The Man, as well as his siblings, was furious that the Woman had even gone as far as having her son baptized with a surname similar to theirs and demanded that she changes the name and abandon use of “their” name. This story is a typical experience for any Family law practitioner but in the world of Intellectual Property it becomes even more intriguing when it comes to discussing the issue of ownership and use of names. When does one have the right to trademark a name?

The question would probably be easier to answer in the western world where most names do not have a cultural significance or origin, but in the African context, particularly in Uganda where surnames are aligned with culture, addressing the issue of owning a name would go as far as that of ownership of culture. As such, I would probably be laughed at if I dragged someone to court to try and stop such person from naming her child KAKOOZA. Much as the name is used to identify me, I have no personal hold over it, so much as to prevent another from using it.

The situation is not so different in the U.S where in October 2012, music celebrities Beyoncé and Jay-Z lost a battle to trademark the name of their daughter Blue Ivy.  Further back, in the case of ETW Corp. v. Jireh Publishing, Inc., when Tiger Woods sought protection over his image rights and name, the court decided that as a general rule, a person’s image or likeness could not function as a trademark. However, in the case of Peaceable Planet, Inc. v. Ty, Inc., the Court stated that what has to be considered is when a name is too common to be appropriable without proof of secondary meaning.

What can be borrowed out of this and taken up as a lesson is that if the name is too unique as to acquire distinctiveness, then it would probably attract protection. This is because it then acquires a secondary meaning in the sense that it would be associated with a source. In any case, in most respects, to have something unique means that there is an element of creativity or innovation, which are strong ingredients in Intellectual property law protection. Trademark protection, in particular, goes with distinctiveness; the ability to distinguish a good or service from another and to associate that good or service with a particular source. Where such distinctiveness has been established within commerce, then protection is warranted.

As such, in the context of the Ugandan surname, the names are as old as culture itself and have no distinctiveness. To call them generic would even be far-fetched. Regardless of how famous a particular name-holder may be, he or she cannot prevent another from using the same name. However, this is not to say that you cannot get protection for use of a name. Ugandan trademark law, as well as in other jurisdictions, protects signs. So if you were to structure your name on a business for goods or services in such a unique way as to generate recognition of source, through say – use of font or other artistic design of the name, the trademark protection would be justified. This is in as long as it goes towards the design of the sign but not the name itself.

Can Trade dress protection thrive in Uganda’s copycat economy?

John Doe decides to open up a fast-food restaurant in a town suburb. He puts a lot of effort into the design and lay-out of the restaurant from color settings on the walls and tiles to arrangement of dining furniture and reception. The general ambiance is designed to perfection and, indeed, many agree that it has a huge role to play in the attraction of large patronage. John Doe rakes in huge profits as a result, until a few more restaurants start opening up down the street and in other parts of the locality. The newer restaurants are of inferior quality. Problem is, however – they have all copied the layout of his own business. Has his branding right been ripped off?  The more accurate issue is whether trade dress can suffice as a claim in Ugandan Trademark law where the copycat syndrome thrives deeply in the commercial industry.

John Doe’s story is a common experience amongst many start-up businesses in Uganda. They all fall victim to copycat businesses due to the limited level of innovation in the country. Most people are inclined to copy something else that is already out there and thriving rather than start something of their own. It becomes a case of unfair competition but does the victim legally have a case against the culprit(s)?

What is referred to as a “trademark” in the legal sense, is looked at as “branding” in the business sense. So, in effect, it is not just about the sign or mark on the product or service, but how well you can establish an identity for yourself so as to be associated as the source of a product or service. It is therefore unfortunate that the present (and fairly new) Trademark legislation in Uganda (Act No. 17 of 2010) does not have an adequate answer for situations where the concept and feel of one’s business is copied by another. Section 4, for instance, only provides for the protection of a sign or combination of signs. On the other hand, however, it is this concept and feel that applies to trade dressing as part of trade mark protection.

This problem is also heighted further by the fact that in jurisdictions in which trade dress protection is recognized, Courts have battled with deciding upon such verdicts. In the United States, for instance, there is no clear-cut position on trade dress protection. It has been argued in some Federal Court cases that a trade dress item which focuses on the image of a business, i.e the entire look and feel of a business or a service (product design and packaging) is purely functional in the sense that it is an essential part of the business that cannot be done away with in order for the business to function – as such, trade dress protection cannot be accorded to a particular individual. Protection of the trade dress would therefore have to go beyond the functional aspects of the product or service. On the contrary, other U.S. Courts believe in protecting the investments that have been put into creating the Trade dress and preventing unfair competition. As such, some of the judgments from these Courts have been in favor of Trade dress protection. Nonetheless, in deciding over trade dress protection, U.S Courts have also faced the challenge of making out a difference between product design and product packaging. In other words, if a restaurant owner seeks trade dress protection, is it so as to protect his attraction of customers who like his restaurant for the layout of the restaurant or those who like it because of the quality of the food?

Courts in the United Kingdom, on the other hand, have not directly addressed Trade dress but have instead passed judgment on matters affecting “passing off” of products or services under trade mark infringement, which are injurious to the reputation of the claimant. This is closer to the provision under section 35 of the Ugandan Trademark Act which creates a claim against passing off of goods or services. This provision, however, does not address the copycat syndrome experienced in the Ugandan economy.

One would argue therefore that our local Ugandan investors that thrive on copying existing businesses cannot and should not be labeled as infringing on any trademark laws – or trade dress for that matter, probably on the premise that they are not using similar signs for their products or services. However, it should also be considered that some of the customers that visit the copycat business may be inclined to believe that it is a branch or extension of the original business. The likelihood of confusion is thus established in this way and negatively affects the original business in terms of reputation and unfair competition. Now, is n’t this what Trademark law is meant to address?

Uganda’s Copyright law: Where are we headed?

Uganda holds its head  high as a founder member of the World Trade Organization – founded in 1994, and pursuant  to that, one of the signatories to the TRIPS (Trade Related Aspects of Intellectual property Rights) Agreement that was drafted to guide member states in coming up with domestic legislation addressing Intellectual Property protection.

It has been a rather slow progress since then in the country’s efforts to live up to its TRIPS related obligations. In as far as Copyright law is concerned; we were stuck with the ghost of the 1964 Copyright law – borrowed from our former colonial masters, until the enactment of the Copyright and Neighboring Rights Act in 2006. This was Uganda’s first effort in addressing its part of the TRIPS bargain. Much as the country has recently come up with new legislation in the area of Trademark and Trade secrets law, a lot more demands remain to be fulfilled with regards to the other branches of Intellectual property, more particularly Patent Law. Indeed our law makers should be applauded for pushing for fresh I.P legislation but going by the growing trend of development in the industry one legitimate question is whether the new legislation effectively cover the rising challenges in the appreciation of Intellectual Property in Uganda.

The 2006 Copyright Act has been criticized for being biased towards the music industry and ultimately ignoring or not directly addressing other branches of what constitutes Copyright works, inclusive of dramatic works, pictorial, graphic and sculptural works, motion pictures, architectural works and the like. Never mind the fact that section 5 of the Act spells out which type of works are eligible for copyright protection and actually includes some of the aforementioned. The focus of this argument is more inclined on the thesis that coverage of the Act is too broad, lacks some much-needed specificity and is premised on offering protection to artists than any other author of copyright works.

As such, this discomforting trend set by the Copyright law, since its enactment, is analyzed through the lens of a few pointers:

First of all, basing on the fact that appreciation of Copyright law, and generally – Intellectual property law, in Uganda is still minimal, those looking into the law are unwittingly sucked into a limited mindset as to how far Copyright law can go. If key players in society, inclusive of members of the legal profession and members of the bench, develop an understanding that the boundaries of copyright protection can only go as far as the Act portrays, then the level of innovation in this branch of Intellectual Property is being affected negatively even before the law allows it to develop to greater heights. Copyright law in the United States of America, for instance, is based on the Constitutional provision that focuses on promoting “the progress of science and the useful Arts, by securing for limited times to Authors and Inventors the exclusive rights to their respective writings and discoveries.” (Article 1, sec. 8, cl. 8).The overriding objective of copyright law in this regard, is the advancement of useful arts. The same should apply to copyright works in Uganda by understanding how much can be protected as copyright and how long such protection can last. This would expand the field for innovation and spread the ensuing benefits to both authors and consumers.

Secondly, enforcement cannot grow if those entrusted to put the enforcement into effect do not know what they are enforcing against. To stretch this point a bit further, even those breaking the law by infringing on copyrights of authors will not know that what they are doing is illegal. Television images in July this year which showed law enforcement officers, backed by the Uganda Performing Rights Society, fighting it out with violators of copyrights were a true depiction of how little our societies are aware of copyright law. The perpetrators of the infringement strongly believed that they were not doing anything wrong. Regardless of the fact that ignorance of the law is no defense, there is still a lot of dissemination that needs to be done in a tactical manner.

Thirdly, is the issue of durability in protecting copyright works.  I am reminded of the phrase: ”let sleeping dogs lie”. Ignorance of the level and extent of protection afforded to works eligible for copyright can stand the risk of affecting the enjoyment that one would have earned from the exclusivity that comes with such protection. The exclusive right of protection given to an author of copyright works, stands as a reward for the efforts put in place by such person in producing the work as well as a form of incentive for others to get creative as well so as to enjoy similar benefits. As an artist, for instance, if you are not aware that your work enjoys eligibility for copyright protection, you stand to lose out on a lot of benefits that come with such protection and, regardless of the fact that the duration of protection afforded under the law may be quite long, your work may fall into the public domain before anyone discovers the potential it holds. This is the present burden faced by Indigenous communities that hold claims to traditional cultural expressions that have been appropriated by certain individuals for personal gain and this is not even illegal especially since the appropriated works are subsequently protected as Intellectual property.

However, there is a very rich potential for a vibrant intellectual property environment in Uganda. All it can take is for us to keep stirring the waters in order to cause a storm that will upset the tide that has been favoring infringers – both the intentional and unintentional infringers, guilty and innocent ones as well. It is exciting when the news headlines scream out about a former mayor suing a leading corporation for using his speeches without obtaining his permission, while another headline also points out a story about a musician suing another for the use of her songs without permission. In the United States of America, a classic “speech” case that stands out involved the law suit over the unlawful use of the famous Dr. Martin Luther King “I have a dream” speech by CBS Inc. in 1994. Judgment was in favor of the plaintiff on the basis of the fact that Dr. King owned the copyright to the speech (Estate of Martin Luther King, Jr., Inc. v. CBS, Inc.). Whereas in the much earlier British case of Walter v. Lane (1900), the judgment was to the effect that the reporters who recorded the speeches of Lord Rosebery were entitled to copyright protection. This is the intriguing nature of copyright law – it takes up a number of interesting dimensions depending on jurisdiction and can still be able to teach the recipient of the information something of value. However, it is of significance that our legal environment is beginning to embrace this challenge through the courts of law.   It speaks volumes about the fact that people are waking up and realizing that they own not only tangible but also intangible property and there are avenues that can be explored in asserting their rights of protection.

More still needs to be done. For instance, there are still musicians out there who are unaware of the fact that even riding on their hard earned work without giving them any sort of accreditation can lead to a law suit under Copyright law for breach of moral rights. We also need to understand that our territorial boundaries of Copyright protection can and need to go further than what the Act envisages. The sooner we address this concern through law reform, the better, so as not to kill the underlying innovations in this field. Our members of the bench and registrars also need to be guided further because they are swimming in unfamiliar waters as they create new jurisprudence for Ugandan case law in areas which lack any strong precedent. The lawyers and academicians also need to do a lot more research as copyright law itself continues to evolve and enlarge its boundaries in a world that is shrinking further into a small global village thanks to the internet. This is creating even more challenges towards cross-border enforcement.