Tuesday, December 17, 2013

Intellectual Property

‘I have nothing to declare except my genius.’ - Oscar Wilde

Not too long ago, Britain’s J.K. Rowling was a penniless[1] single mother with a dream to be a writer. She conceived the idea for her first novel, Harry Potter and the Philosopher’s Stone, during a delayed train ride in 1990 and finished it in 1995. Her fortunes changed in 1997 when she published her first Harry Potter book.

Demand for her tale about an orphan (Harry Potter) who has inherited magical powers set the world on fire and she went on to make publishing history! It wasn’t long before Hollywood came calling and the film deal that the single mom made (with Warner Bros.) catapulted her to the highest financial circles. Today, her net worth is estimated to be $1 billion US dollars, making her one of the richest private citizens in the UK (and some say richer than the Queen of England). According a Bloomberg GameChangers documentary, the Harry Potter movie franchise is now the biggest of all time (spanning movies, home videos, toys, clothes and a theme park).

The Chronicles of Narnia blockbuster films based on the novels by Lewis C. Clark also spawned a multi-million-dollar franchise (the creator was dead by the time the movies were made so deals had to be signed with his estate). The movies in the series include The Lion, the Witch and the Wardrobe (2005), Prince Caspian (2008), and The Voyage of the Dawn Treader (2010). As of 3/9/11, the third Narnia movie had made $104,029,149 (Source: Box Office Mojo). The Chronicles of Narnia: The Lion, The Witch and the Wardrobe was made by Walt Disney while the songs from the movie were distributed by EMI Music Group. According to Wikipedia, the series has now grossed over $1.5 billion, making it the 19th highest-grossing film series of all time.

‘Intellectual Property’ is real property, just like land, cars or houses, and - as you can see from the above examples - can be quite lucrative. Intellectual Property is protected under international law. It is also subject to protection according to the Kenyan Constitution (The
Copyright Act, The Trademarks Act et al).

Copyright (basically ‘right to copy’) is branch of Intellectual Property. It refers to a set of exclusive rights to regulate the use of a particular expression of an idea or information. Under international copyright law, a new idea, artistic work or other copyrightable work is automatically copyrighted after being expressed. A book, for example, is an expression of the author’s ideas. If the author/publisher of the book comes across a pirate infringing his copyright, he can make a citizen’s arrest and take the suspect to the nearest police station with the pirated books as evidence.

Copyright subsists in a work from the instant it is expressed (eg. when a book is written) and is enforceable by International Law. The symbol for copyright is © ; in some jurisdictions (c) is also accepted; and is usually followed by a year and the name of the copyright holder eg.

Copyright © 2011 Alex Nderitu

It’s a good idea to place this kind of copyright notice on your poems (eg. when posting them online) and all other literary works (even if you’re giving them away for free). It allows people to know who to contact in case they want to use your work elsewhere or make a derivative work/product from it.

The Kenya Copyright Board keeps a database of Intellectual Property works registered with them. To patent something, contact the Kenya Intellectual Property Institute.

Copyright may subsist in a wide range of creative, intellectual, or artistic forms or ‘works’. These include poems, plays and other literary works; films, choreographic works such as dances, musical compositions, audio recordings; paintings, drawings, sculptures, photographs; software; radio and television broadcasts and industrial designs (eg, a design for a new car, new ship or new airplane.) Copyright law covers only the ‘form of expression’ of ideas or information, not the idea/concept itself. For example, some years ago, pop singer Madonna was successfully sued by a European photographer for some poses that she struck in one of her music videos. The poses included the entertainer sitting atop a running TV set with her legs splayed all the way to the sides. The photographer could prove that those poses were taken from magazine pictures he had previously shot, featuring a female model. The photographer could not have sued Madonna for sitting in a chair or walking down the street, since those are not new ideas that he had expressed. But the concept or image of a woman sitting atop a TV that's on, with legs splayed wide, was unique (unless you’re some kind of freak!) It was an idea from a creative mind and by directing a model to assume that pose while he took pictures, the photographer expressed the idea and therefore had copyright over it.

With so many derivative products now being made from literary works (especially novels), it is paramount that young writers learn all they can about Intellectual Property and know exactly what they are signing away when they get published the traditional way. It might shock some people to learn that if you’re published the traditional way, they publisher might own your copyright (until your book goes out of print in which case copyright reverts to you). What this means is that if a film company wants to make a movie based on your book, or if a foreign publisher wants to publish your book in another language, you might not have any say in the matter!

Admittedly, that sounds rather unfair, but it happens. A book can be successful but the author doesn’t seem to be doing well in the money stakes, especially when you consider that an author usually gets between 10% and 12% as royalties on his Intellectual Property. I once decided against entering a local short story competition, where the prize for the winners was publication and thereafter royalties, because they made it clear that they would own the ‘first rights’ for the stories. I am in touch with a local filmmaker who likes my short stories, especially the humorous ones like the Konkodi articles, and I’d hate to be in a position where I would have to buy back my own Intellectual Property in order to make derivative works. A local poet got a rude shock when she asked her publisher if he could give her several copies of her books to sell during a Spoken Word Poetry session she was performing at, only to be told that she would have to buy her own books – at the same discounted rate as the bookshops!

This issue of rights/Intellectual Property makes self-publishing/independent publishing ever more attractive to the creative writer. If you write on topics such as gardening, interior design, gadgets, motivational or self-help issues, Bible studies/companions, textbooks etc, then a traditional publisher is still the best option for you. After all, no board games, video games, movies, TV shows or other derivative products will ever be made from your work. But a creative writer is different since there are so many rights that could come into play as far as his or her work is concerned. These include:

- Paperback and Hardback rights
- Film and TV rights
- Software rights (video games, computer games etc)
- E-book rights
- Stage rights (Theatre)
- Translation rights (To other languages)

…and so on. And with e-books and independent publishing (such as Print-on-Demand) growing in leaps and bounds, some novelists are starting to wonder why they would need a bricks-and-mortar publisher.

[1] She went on welfare after being fired from a couple of jobs for writing instead of working! (Source: Bloomberg GameChangers)

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