Comedy and Intellectual PropertyIntellectual PropertyLaugh out loud! Comedy and Intellectual Property.

In Nigeria, comedy is no longer a laughing matter as it has become big business generating tons of cash and employs quite a number of people directly and indirectly.

In the early days there was Chief Chika Okpala, aka Chief Zebrudaya of the New Masquerade fame in the 80s. The Enugu State-born actor leveraged on his television fame by performing on the side as a Master of Ceremonies/Stand-up comedian at private and government-organised events. His contribution to the then growing entertainment industry in Nigeria was rewarded when he was bestowed with the national honour of the Member of the Order of the Niger (MON) by the Federal Government.

Then along came John Chukwu. Chukwu’s dexterity while taking charge of proceedings at major private and public events raised his popularity to high heavens. That was in the early 90’s.  Chukwu was a celebrity and he decided to take it one step further when he diversified his craft by floating a nite club, reportedly called Class, somewhere along Obafemi Awolowo Way in the Ikeja area of Lagos.

Does anyone remember Gbenga Adeboye? From the 70s till 2003 when he passed on, Adeboye held sway in the comedy circuit.

Present day multi-billion naira industry
The Nigerian comedy industry as it is today, probably took roots over 10 years ago. Two landmarks heralded rain of prosperity for Nigerian comedians. The first was the famous Opa Williams “A Night of a Thousand Laughs” which gave us Nigerians a good reason to laugh while giving teeming comedians a chance to strut their stuff. In addition it was very strategically scheduled to hold on the 1^st of October (Nigeria’s Independence day)every  year, the programme took a life of its own, with the organiser excelling at brand extension by churning out an increasing number of goods like Cds, T-Shirts and other souvenirs.

The second big thing the industry witnessed was the arrival of Atunnyota Alleluya Akpobome, better known as, Ali Baba. King Ali Baba serves me just fine.
The revolution, of what is today known as the comedy industry in Nigeria, began in the early 93, with Ali Baba as the leading light. He practically rebranded the industry and gave it a new face and direction.
In 1998, Ali registered his company, “Ali Baba Hiccupurathird”. That was the year he erected three billboards in strategic locations in Lagos: Ozumba Mbadiwe Street, Victoria Island, Osborne Road, Ikoyi and the Marina. He paid N150,000 for each billboard per year for two years. The billboard carried a simple message “Ali Baba-Being Funny is Serious Business”.

The days when a stand-up comedy act practically begged to anchor shows are long gone. Comedians are now laughing to the bank as no event, from birthday parties, weddings, corporate functions and government events is said to be complete without a stand-up comedian on duty, stand-up comedy has even found its way into churches with some inviting these ace comedians to make their congregations laugh.

Yet, in Nigeria copyright law fails to protect jokes’ from copycats. More interestingly comedians and other stand up acts have not been very eager to protect the intellectual property inherent in their jokes and their entertainment routines as a whole.

In Nigeria many comedians and entertainers often neglect their intellectual property and its legal power and commercial potential to develop their unique images, fend off competition and maximise profits by commercialising their intellectual property and extending their brand identity.

Key intellectual property in Comedy and practical steps to protect them

There are a plethora of intellectual property assets that are worthy of legal protection namely Copyright, Industrial Design and Trademark and comedians can and should use them to strengthen the value of their brands by the possibility of licensing, franchising and merchandising amongst other options.

Distinctive Names

The first ingredient in any great comedy act is a good name. It should be registered as a trademark. A trademark is usually a word, your name; but it can also be a logo, an email address(folawusu@yahoo.com, a tag line “Just do it”. Whether registered or not, a name is a valuable asset that can be protected under the tort of passing off. In choosing a name, it is wise to consider a name that is distinctive. In Nigeria most comedians have great names, owner-operated comedy shops often bear the name of their founder. But to name a comedian SAkinboye, for example, is to create something that would be virtually impossible to protect, it is advisable to come up with a creative name for your or your company like “Ali Baba Hiccupurathird”.

A strong trademark is virtually mandatory for comedians and other members of the entertainment industry. A comedian should, like any prudent business man at a minimum, conduct a comprehensive name/trademark search in order to avoid choosing a name similar to any known competitor or similar business.

Use of Take away products as a Brand Extension

Nigerian comedians can begin to package and sell signature products outside their shows such as take away packs, bottled water, t-shirts, face caps, cooking aprons, gloves and dish ware.

The furnishing and layout of the comedians show and stage

In this writer’s opinion, the décor and layout of the show as with all ideas and concepts can be protected under industrial designs provided they are distinctive. Nigerian comedians can go ahead to post signs stating that no photography is permitted on the premises of their shows, however in a social media-driven world, this may be illusory and very difficult to enforce.

Websites and Social Media: Connecting with Customers

Social networking is about relationships, you need to have a relationship with your audience, and it will help you fight piracy.

Websites need to be reviewed regularly to ensure sensitive information is not placed at risk.  Comedians must address what information employees can discuss or post on blogs, and prohibit the disclosure of confidential information and trade secrets.  Comedians also need to be careful of what they post on Social Media. If you post a joke on Twitter, don’t get upset if people post that round because you’ve already done it on a public forum and as it were there is an implied license to share in this writer’s opinion.

Consequences of Failing to Register Trademark/other Intellectual property

The absence of trademark registration may limit your expansion into new territories. Trademarks are tied to a geographical location; without a registration, your rights may be limited and you can get boxed in if a third party registers the same name you use.

In addition it also means you have no obvious asset. You may have trademark rights based on prior use (at common law), but banks and other financial institutions are more likely to reckon with trademark registration as a tangible evidence of an intangible asset.

If you want to franchise your business model, not having a trademark registration is a significant risk and your franchisee may just go ahead and register your trademark in their own name and then go ahead to rail road you out of the market.

Building Brand Value with Intellectual Property Registration and Enforcement Strategies

The Nigerian Experience

In Nigeria, it has been reported in some quarters that comedians repeat jokes and that the jokes are tired and worn.

Some comedians put shows together to groom upcoming comedians so as to possibly allow for an inflow of fresh jokes, possibly for general consumption as it is generally assumed that jokes are not copyright protected.

At the very least the average comedian complains about joke theft but seems to be unwilling to do anything about it.

The experience in other climes

Self help

In September 2008, Lee Hurst smashed an audience member’s mobile phone because he thought his stand-up act was being filmed. He admitted causing criminal damage earlier this year and was fined £60 and ordered to pay compensation and costs.

Cease and desist letters

Gary Delaney, an up-and-coming British comedian was embroiled in a row with the comedy website sickipedia.org.

He complained to the site after noticing that several of his one-liners had been posted on its online joke compendium without attribution. He was angered because he believes his jokes were falling flat as fans had already read them online. Since the row with Mr Delaney, Sickipedia has introduced a feature allowing the original author of a joke to be credited.

Copyright protection for your Joke is no joke

Comedy has been transformed from trivial activity into big business. Increasing competition for the attention and money of comedy patrons and comedy lovers has prompted comedians to differentiate their performances by creating unique jokes that they dish out to get their audience to reel over in laughter.

The time and labour that comedians invest into this form of innovation represents a substantial investment, and very few have turned to the law to protect their original jokes from competing comedians, distribution companies and pirates.

Historically, under Nigerian law, a joke spoken by a comedian during a live performance cannot be copyrighted unless it is recorded or has been written down beforehand. Copyright only covers the exact form of words used to express a joke rather than the general idea behind it. The idea behind the joke can also be protected but not under copyright.

The Copyright Act (Nigeria) also extends copyright protection to performance rights which can be defined widely enough to capture not just jokes which are recited from written notes or even off hand, but even improvised routines that come up spontaneously.  A panoply of exclusive rights in the performance gives rise to a cause of action for unauthorized reproductions of the performance.

Short jokes, particularly those based on trite or generic observations or plays on words, may also be insufficiently original or they may fall too close to the dividing line of the idea/expression dichotomy. For this reason, comedians who specialise in “one-liner” jokes which can be easily reproduced verbatim on sites such as Twitter – are far more likely to be subject to plagiarism than those whose humour relies on the telling of long anecdotes, such as Basket Mouth, Julius Agwu,  Jedi and Ali Baba.

There is no reason that a joke cannot be protected by copyright, so long as it meets the generally applicable requirements: the expression must be original and fixed in some tangible form. Jokes which are delivered only verbally will probably the lack the quality of fixation required for protection.

Borrowing of Jokes is not a laughing matter

More established comedians claim that they are getting fewer laughs when they perform because audience members have often already heard their jokes on the internet or from upcoming acts.

They allege that their stand-up routines are being pilfered by upcoming acts; their CDs are massively pirated and distributed without gains for their pockets by pirates and viewers who also reproduce their work online.

So why are comedians not using the legal system?

Copyright law protects original expression, but a lot of the alleged joke-borrowing involves relaying an appropriated comic idea using different words.

The plaintiffs in a copyright suit have to bear the burden of proving that the defendant copied their expression rather than created it independently. As jokes and comic routines often refer to common experiences or the events of the average day, it may be difficult in many cases for comedians to negate the possibility of independent creation (or “parallel thinking,” as it is called among comedians).

Furthermore, the cost of using the copyright system is high: copyright registration, court and legal fees are quite expensive, in most cases; the market value of jokes is somewhat transient in relation to the duration of a court case in Nigeria.

There is no reason that a joke cannot be protected by copyright, so long as it meets the generally applicable requirements: the expression must be original and fixed in some tangible medium. For jokes which are delivered only verbally, the lack of fixation will be a barrier to protection. The law generally shies away from according copyright protection to titles and short phrases for fear that a limited monopoly will be asserted over basic elements of expression — and for similar reasons, short jokes would be unlikely to obtain protection.

Short jokes at risk!

Short jokes, particularly those based on trite or generic observations or plays on words, may also be insufficiently original or they may fall too close to the dividing line of the idea/expression dichotomy. Only longer jokes which are written or recorded are likely to obtain protection. That being said, compilations of jokes, as compilations, certainly qualify for copyright protection.

The Copyright Act (Nigeria) also extends copyright protection to “performer’s performances,” which is defined sufficiently broadly so as to capture not just joke routines which are recited from written notes, but even improvised routines. A panoply of exclusive rights in the performance gives rise to a cause of action for unauthorized reproductions of the performance.

If I had a sit down with comedians in Nigeria I would tell them to write down their material, then type it out as an email and then send it to their own email address so it shows the date and time it was sent, print it out and keep a copy of the printed material, keep it somewhere safe so they had some evidence of originality and fixation.

Intellectual Property Registration is tangible evidence of an intangible asset

It is proof that the goodwill exists. Anytime you make an intangible asset, like goodwill and trademark rights, concrete it helps people understand the value.

Intellectual Property as Collateral For Funding For Comedians

The federal Government under President Goodluck Jonathan in response to these problems released US$200 million as the Entertainment industry Fund. Many artistes have however, complained about their inability to access the fund.

The Nigerian Entertainment Fund is being managed by Nigerian Export and Import Bank, NEXIM, which has since released guidelines for the operation of the Nigerian creative and entertainment Stimulation Loan Scheme. NCEILS as the bank refers to it.   According to the guidelines released by NEXIM, ‘

‘Applicant shall forward in addition to other requirements Collateral security / Intellectual Property Assets that are properly patented, trademarked, copyrighted, etc to be pledged/assigned.’

It is time the average comedian/entertainer structures their businesses properly. With the advent of the Nigerian Entertainment there is a greater for comedians to pay more attention to their intellectual property as same can now be used as collateral to get a loan!

Registering your intellectual property is not going to automatically prevent others from encroaching on your territory. Intellectual Property owners are obligated to protect their own right using governmental apparatus and applicable laws, well that is part of the reason you pay taxes.

Part of any good Intellectual Property protection strategy should include some budget to properly commercialise their IP in other to maximise profit and a willingness to fight any IP infringers.

            Conclusion

Simply owning intellectual property rights does not generate money.
To produce income the owners of these rights must exploit them financially through various types of commercial agreements including but not limited to licensing arrangements and/or
assignments of rights.
In a sense, all of these commercial agreements are an attempt to turn intellectual property into intellectual capital that will then increase your cash flow

Megathos Law Practice  © 2012