Intellectual Property and the Writer in Nollywood (The Nigerian Film Industry)
Photo Credit: Credit DR
Film , Television , Web Series

Intellectual Property and the Writer in Nollywood (The Nigerian Film Industry)

Credit DR
Credit DR

A disbarred lawyer takes credit for a late friend’s book, which becomes a smash hit; but the tables turn on him sooner than he expected.

That’s the plot for “A Murder of Crows,” a 1999 thriller starring Cuba Gooding Jr. and Tom Berenger. In the film the Russell (Cuba Gooding) is arrested for the real murders of five lawyers just as they happened in “his” book. He then finds himself forced to prove his innocence. Minus the murders, in real life, Russell would probably have gotten away with the theft with no consequence; made a lot of money, gotten prestige , landed on magazine covers, book signings and deals, all while passing off someone else’s work as his. In real life, many people get away with it, while the real writer is alive and well.

Intellectual property theft is a big problem, not only in Nollywood, but in other industries globally, whether it is Copyright Infringement, un-cleared rights or outright theft. Creative people have had issues for many years with people who either don’t understand that IP theft is no different from grand theft auto and embezzlement. For some reason, people assume that all creative output – music, movies, television shows, books and writing – should be free, like oxygen, for their leisure, thus file sharing via torrents, Limewire, Napster etc.

It’s bad enough that people love free creative content, but it’s becoming a disturbing trend in the film industry.

Producers engage a writer on a screenplay, and after the job is done they don’t want to pay them, or claim there’s no money.

For new writers, it’s quite a quandary. They want to get their name out there, by pitching stories, or writing screenplays and, like Charlie, they feel special when selected by Willy Wonka. Sometimes they fall victim to slick-talking producers who entice them with tales of the Promised Land and getting their foot in the door. But the writer never gets paid, or is paid a paltry sum. Sometimes the producer insists on getting writing credit on the project even if all they came up with was the title. A lot of writers are owed large amounts of money and often times, there is no written contract, only verbal agreement and trust. As the industry is largely built on relationships, sometimes an agreement is made over a meal, drinks and a handshake, especially when it’s not between an individual and a production house/studio. Sadly, a lot of people are not honourable with their word, especially when it comes to parting with money. Why would anyone try to claim the credit for something they didn’t create? Ego? The admiration they believe they’ll receive? Why not create your own thing? What’s so hard about sharing credit or acknowledging that you didn’t do it all alone?

A lot of people don’t seem to grasp the concept of Intellectual Property Theft, largely because a lot of people have very little education on it, and it is not something that has a precedent of prosecution and punishment. Rights clearance, copyright infringement, option rights etc. are not factors that many people are aware of.

Many don’t regard creative output like writing and art as a skillset (like architecture) and don’t place a high value on it, so they believe it’s not real work and they shouldn’t have to pay for it (or pay a high amount). This perception needs to change because it’s very dangerous. Writers aren’t valued, and are seen as a necessary evil. Writers have to deal with dismissive responses like “is it not just writing?”, or “anyone can write”, or “I would have written it myself but…”; Basically saying, what you do isn’t special or requires a skill, so I shouldn’t have to pay much for it, and you should actually be grateful.

So how can writers protect themselves? What can be done to avoid such situations?

What happens when a rejected pitch is turned into a festival touring movie, a web series, a hit TV show, or an award winner? All with no credit or acknowledgement of the source. What happens when the thief starts to besmirch the name of the writer? How can a writer protect themselves from these dishonourable predators in the future?

Nigerian playwright, screenwriter and director Jude Idada recently was the victim of IP theft. Reflecting on his experience, here is his advice on how writers can protect themselves.

As a screenwriter who has doubly suffered the blow of intellectual property theft from the same production company, the first advice I have for every artist is ALWAYS GET A CONTRACT. It is the bible you should swear by. It does not matter if the parties you are working with are your friends and if you are working for free, let it be captured in a contract what the terms of engagement are. Let it precede every meeting wherein an exchange of ideas is going to take place so that for everything discussed, all parties involved know clearly who and who owns what and what.

This is necessary if we are to create a structure that lasts. Structures that are transparent, accountable and auditable. Talent must be monetized no matter how infinitesimal it is to the value chain or the final product. And it is up to us to insist that talent is monetized and all parties are held accountable by demanding for a contract. Tools such as Statement of Intent, Non-Disclosure Agreement, Memorandum of Understanding, Terms of Agreement as contractual agreements come into play, whether we are a source of an idea, story or not. The ideation process has to be clearly spelt out, the demands made, services expected and fees involved have to be clearly stated.

This will save any grief that will happen in the future. The guilds should have an arbitration process, wherein cases of intellectual property infringement can be investigated and addressed before litigation is explored. All screenplays should be duly registered with the copyright commission and the guilds should have their own copyright registration processes to make it easier for screenwriters to register their screenplays. Suffice to say that in the following should be the steps taken in the ideation process.

1. A Statement of Intent entered into between the parties before any discussion takes place, wherein all facts are stated. Who is providing what, who owns what, who needs what and who has what? Once this is done, then everyone is clear on ownership and expectation.

2. A Non-Disclosure agreement should in case any of the parties believe the information that would be supplied is confidential and one that protects the story or ideas contained in the discussion.

3. A Memorandum of Understanding (MOU) that states what was agreed in the meeting and the terms of engagement of the working relationship.

4. A Contract, which captures the parameters of the working relationship, timelines, fee payments, ownership, the arbitration process, indemnity clauses e.t.c. This should be reviewed by competent legal representation before being signed. You must have the contract before the commencement of work.

5. Notice of Infringement, which should be sent to the party which breaches the contract to serve them notice of the breach, give them an opportunity to correct or address the breach or announce to them your willingness to pursue an arbitration or litigation process.

These are very important and should be invoked by every person in the value chain, be it pre-production, production, distribution, and exhibition. If we are going to take Nollywood to the next level and engage with the world, then we must understand that we need these contracts and other legal instruments to validate our work and indemnify any third or fourth parties from the litigation involved in intellectual property breaches.

Art is a business, in the final analysis, businesses need structure and structure inform the need of transparent and auditable processes if that business wants to growth to the financial behemoth it can become. A contract protects all parties and should be insisted upon by all parties. We cannot continue to engage artistically in the value chain using parapo business practises, we have to be professional, so that we can get the best of everybody and also attract the best brains and monetary avenues into the industry.

Let us remember that he who is afraid of a contract, has a joker up his sleeve, and that joker is primarily meant to enrich themselves at the expense of you. Protect yourself. No matter how uncomfortable it may be insist on getting a contract for your service. Always. After all in the parlance of Hollywood, no matter how friendly talent maybe, in terms of business, whether charitable or for profit, it is always said, “My people will talk to your people”

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