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Saturday, May 25, 2019

Folklore, Traditional Creativity & (Mis) Appropriation

Except from Dr. Samuel Andrews’ SJD dissertation April 2018.
*(available also at) 1 OAU L.J. 217, 225-29 (2018).
[D] Renegotiating ‘AfroNdise’ Creative Landscape
            [1] Background
This Chapter coins the term ‘AfroNdise’ to describe Africa’s indigenous cultural cinematographic works.[1] ‘AfroNdise’ is derived by merging the word ‘Afro,’ a reference to African or black culture and ‘Ndise,’ an Ibibio term for film, picture and spectacle.[2] The Ibibios are an ethnic community in the South-South region of Nigeria.[3] Chapter Five uses AfroNdise and Afrollywood interchangeably.
Nollywood introduced a unique indigenous creative genre to other parts of Africa. Across Africa, Ghanaians refer to their movie industry as, Ghallywood.[4]  South Africa’s movie industry is either Joziwood, Jollywood, or Vollywood, it is categorized based on the genre and how it relates to a thematic analysis.[5] In Kenya, filmmakers refer to the contemporary genre of movies as Kennywood.[6] This Chapter descriptively refers to Africa and black cultural creative film industries as ‘AfroNdise.’
The international creative communities led by the United Nations have initiated several treaties to regulate the use and compensation systems of cultural materials.[7]  This Chapter will examine the efforts of UNESCO and WIPO, to adopt a legal regime that is globally acceptable for protecting cultural proprietary rights of indigenous people and traditional societies.[8]
The recent Marvel and Walt Disney Studio’s production of ‘Black Panther’ creates a renewed interest in the debate of the proper value or compensation that African communities deserve, for the use of their folklore, art craft, fashion designs, songs and sacred creation in a derivative cinematographic work.[9] The movie, ‘Black Panther’, made box-office record by earning more than $400 million within ten days of its release in the U.S. and $700 million overseas in two weeks.[10]
The movie depicts a fictional Central or Eastern African nation, Wakanda, with abundant reserves of a rare mineral deposit, Vibranium.[11]  Wakanda is a technologically superior country that was not colonized by any Western Nation. Vibranium, has a ubiquitous technological superiority that sets the country above its neighbors. 
T’Challa, who succeeded his father to be the leader of Wakanda, wanted to continue the kingdom’s isolationist policies that he taught kept them safe. However, Erik Killmonger, the King’s cousin questioned T’Challa’s legitimacy to the throne and had a contrary vision as to the use of Vibranium.  Killmonger sets in motion plans to claim the throne from T’Challa and control the mineral resource. He envisaged that Vibranium could be used as a tool to change the political and economic power structure of the world.
[2] ‘Wakanda’: Cultural Anachronism & Cinematographic Appropriations
Professor Arewa contends that ‘borrowing’ certain African cultural works in the context of a commercial exploitation and for profit, just as the song, “The Lion Sleeps Tonight”, may cross the line into appropriation of creative culture.[12] Expounding further on Professor Arewa’s argument, this chapter contends that on the backdrop of Western colonist exploitations of African resources, coupled with the competitive advantages enabled by advanced digital technology.[13] Western creators, traditional communities in Africa and other places should create a new intellectual property regime.[14] This can be achieved by renegotiating with traditional communities in Africa and other continents that recognize the exploitative intersection of a “borrowed” African creative culture, folklore, artwork, songs, sacred institution and native fashion designs.
The movie ‘Black Panther’ depicts and uses both fictional and non-fictional African creative contents.[15] For example, Wakanda’s elite female guard draws on the traditions of Kenya, South Africa and Namibia.[16]  Another example for purposes of Intellectual Property law intervention is Wakanda’s king, T’Challa, wearing a tunic with an embroidered collar similar to those worn by Yoruba men in Nigeria.[17] The producers of “Black Panther,” perhaps for legal and artistic reasons, created a derivative art by combining cultures of different African ethnic communities into a new form of fictional African culture or art.[18] The cultural anachronism however does little to shield the appropriation of the inherent cultures that forms the basis of the screenplay.[19]

[1] See Jyoti Misty & Jordache A. Ellapen, Nollywood’s Transportability: The Politics and Economics of Video Films as Cultural Products in Global Nollywood: The Transnational Dimensions of an African Video Film Industry 46-69 (Matthias Krings & Onookome Okome, eds., Bloomington: Indiana University Press, 2013).
[3]  See Susannah Walker, Black is Profitable: The Commodification of the Afro, 1960-1975, 1 Enterprise & Society 536-564(2000); See also, Gregory U. Rigsby, Afro-American Studies at Howard University: One Year After, 39 J. Negro Edu.  209-213 (1970); This thesis also refers to Afrondise as “Afrollywood.”
[4] See Carmela Garritano, African Movies and Global Desires: A Ghanaian History 1, 154-194 (Center for International Studies; Ohio University Press, 2013).
[5]  See Jyoti Misty & Jordache A. Ellapen, supra, note 219 at 55-60.
[6] See George Issaias, East Africa: The Start of a Booming Film Industry?  True Africa (December 15, 2015),  https://trueafrica.co/article/east-africa-the-start-of-a-booming-film-industry/; see  also Frankline Sunday, Kenya’s Film Industry is in Revival Mode, Standard Digital (October 6, 2015), https://www.standardmedia.co.ke/business/article/2000178722/kenya-s-film-industry-is-in-revival-mode.
[7] See Wendy Wendland & Jessyca V. Weelde, Digitizing Traditional Culture, WIPO Magazine (June 3, 2008), http://www.wipo.int/wipo_magazine/en/2008/03/article_0009.html ;  see also World Intellectual Property Organization, Indigenous Community Goes Digital with High Tech Support From WIPO, WIPO Media Center: Press Releases (August 5, 2009), http://www.wipo.int/pressroom/en/articles/2009/article_0030.html; see generally, Olufunmilayo Arewa, Cultural Appropriation: When ‘Borrowing’ Become Exploitation, The Conversation (June 20, 2016), https://theconversation.com/cultural-appropriation-when-borrowing-becomes-exploitation-57411; see also https://www.huffingtonpost.com/the-conversation-africa/cultural-appropriation-wh_b_10585184.html ; see e.g. §§ 5.6 [A], [B],[C] supra, at 241-251.
[8] See § 5.6 [A], [B], [C] supra at 241-251.
[9] Id.
[10] See Elahe Izadi, ‘Black Panther’ Keeps Smashing Records, Exceeding Box-Office Expectations and Making History, The Washington Post, (February 25, 2018), https://www.washingtonpost.com/news/comic-riffs/wp/2018/02/25/black-panther-keeps-smashing-records-exceeding-box-office-expectations-and-making-history/?utm_term=.44934949e52f ; see also Andrew Chow, “ Tomb Raider” Can’t Topple ‘Black Panther’ at Box Office, New York Times (March 18, 2018), https://www.nytimes.com/2018/03/18/movies/black-panther-box-office-tomb-raider-i-can-only-imagine.html (reporting that black Panther, the movie earned $605million domestically and $1,2 billion globally five straight weeks after its official release).
[11] See Elahe Izadi, supra note 228.
[12] See Arewa, supra, note 225.
[13] See Negativland, Two Relationships to a Cultural Public Domain, 66 L. & Comtemp. Problems  239-62 (2003).
[14] See Paul Kuruk, The Role of Customary Law Under Sui Generis Frameworks of Intellectual Property Rights in Traditional and Indigenous Knowledge, 17 Ind. Int’l & Comp. L. Rev. 67 (2007).
[15] See Mallory Yu, ‘Black Panther, Costume Designer Draws On ‘The Sacred Geometry of Africa,’ NPR.org (Feb. 16, 2016),  https://www.npr.org/2018/02/16/586513016/black-panther-costume-designer-draws-on-the-sacred-geometry-of-africa
[16] Id.
[17] See Zeba Blay, From Zamunda to Wakanda: How ‘Black Panther’ Reimagined African Style, Huffington Post (Feb. 16, 2018), https://www.huffingtonpost.com/entry/how-black-panther-reimagined-african-style_us_5a7730e0e4b01ce33eb3e6d5
[18] Id.
[19] See Jelani Cobb, “Black Panther” and The Invention of “Africa,” The New Yorker (February 18, 2018), https://www.newyorker.com/news/daily-comment/black-panther-and-the-invention-of-africa

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