By Samuel Samiai Andrews
Recently a
Nollywood movie, ‘Dark October’ produced by Linda Ikeji, depicting a
true life event that occurred in South-South Nigeria some years ago became a
subject of controversy and emotional public commentary. The
movie depicts a tragic true-life event, which happened in Aluu, a community in
Rivers State of Nigeria. Four students of a university were murdered by a group
of community vigilantes. Reports claim that the families of the
victims of the killing objected to the release of the movie because of the
sensitivities involved and the exacerbation of existing grieve. The controversy
centered on fact that the producers of the movie did not get the consent of the
victims’ families before releasing and or producing the movie. Although, principal
thematic focus of my research focuses on how the film industry of the Global
South should take advantages of (digital) copyright to impel its
entrepreneurial, creative and economic rights’ growth. The counterfactual thematic
bent of this piece is one of the exceptions where the lack of a law indirectly
becomes advantageous to the filmmaker in the emerging digital industry.
Nollywood’s
continuous trodden path signals an emerging economic force. Therefore, its
vision and trajectory of achieving effective outcomes for stakeholders demand
proper understanding of the legal and economic contours for success. I am using
the movie, Dark October, as a
take-off point for illuminating an unexplored but significant connecting dot of
socio-legal fundamentals of a successful film industry. Copyright does not
protect ideas, emotional-social rights, news events and civic commentaries. A
legal scholar, Andrew Gilden, published an informative and
educative paper on why intellectual property law may not be suitable for
protecting images, likeness and privacies of deceased love ones. I have
attempted in this article to continue the discussion on the death-copyright
theme by narrowing my focus to the making of a Nigerian movie that depicts a
tragic event, which memories could aggravate the grief of victim’s
families.
Grieving and lP
This piece
focuses on the discussions among Nigerian intellectual property (IP)
practitioners, and enthusiasts, on how IP regimes particularly copyright may
intervene to regulate, protect and enforce the rights of victims in event of
death. Losing a family member in a gruesome or natural circumstance evokes complex
emotions and hurt. Therefore, recreating the events that led to such death may
heighten pains and irreparable emotional harm to the grieving family. On the
other hand, creators like Nollywood filmmakers have statutory rights to make
films about current affairs, news events and societal commentaries. In fact,
filmmakers have some may even argue, constitutional rights to express
themselves creatively. The creative rights guaranteed by
Copyright laws and
other IP regimes struggle to balance its significance with socio-moral
obligations at large.
In my legal
research work around the subject of Nollywood and copyright jurisprudence,
particularly the paper, Reforming Copyright Law for a Developing Africa, I had concluded after empirical and
doctrinal work that the Nigerian copyright law, though robust lacks the bite to
support a cinematographic industry of the digital era. Hopefully the recently
enacted amended Copyright
Act 2023 (Nigeria) will bring that bite for creators’ right security. In
another recently published paper, Developing a Copyright Curriculum for Nigerian Universities for the
Creative Digital Space, I also reiterated the need for Nollywood and the supporting creative
institutions, including the academia, to rethink their growth strategies beyond
legal defensive and enforcement tools, to include knowledge capacity for its
stakeholders-filmmakers and public audience
and non-litigation tools. Why? because the fast pace entrepreneurial incidences
of a creative industry of the digital era abhors time wasting and distractive
commercial disputes. Nigerian creative industries including Nollywood should
enhance the adoption of transactional alternative methods of reducing social
and economic conflict resulting from filmmaking.
Other IP
regimes that may come into discussion are moral rights and trademark. Under the
Nigerian new copyright law moral rights protect paternity (attribution) and
integrity (reputational) of a creator’s work. The creator of a work has the
moral right to object to derogative, corruptive and mutilative handling of
his-her work. The creator of a work also has the right to demand that her work
be attributed to her. Facts available in public domain does not show that the
victims of the unfortunate events in Aluu were creators of that event that led
to their untimely passing. There’s no derogatory usage of their creations depicted
in the movie. Therefore, the issues of moral right seem remote in the scenario.
Is trademark right implicated in the Dark October controversy? probably not!
Trademark could have been implicated if members of the public are potentially
confused in connecting the names or images of actors in the movies with the
names or images of the deceased depicted in the movie (if the deceased images
were registered trademark).
Filmmakers’ obligation
In other
climes attempts have been made to extend the traditional objectives of IP beyond rewarding creativity economically, making information available to the
public for further derivative creative works, to a shield to enforce privacy rights and other unrelated innovative and creative
endeavors. So far in
the human-experience related cases, the courts have been reluctant to accept
the sword or shield posture of copyright law for those who assert it. Mostly
because of the defense of fair use or fair dealing or the
statutory exceptions,
limitations and exclusions, which the law grants as a defense to copyright
infringement. Fair dealing, as it is known under Nigerian law are statutory
defenses available to anyone who may be accused of infringing on other’s
copyright. Reportage and commentary on news events are captured under the fair
dealing excuses.
The screenplay
in Dark October translated and
highlighted a news-event. This film may be regarded as a commentary on societal
ills. The creativity that birth this film comes from the copyright
author-owner. In a cinematographic creative work, the Nigerian law describes
the copyright author-owner as the person who makes the arrangement, probably
funding and bringing to virtual life the outcome that the public accesses. Can
the families of the deceased exercise legal rights under the Nigerian law to
prevent the release or production of Dark
October? Probably not, and legally unlikely. However, issues of grieving a
loved one cannot be put on a straight jacket because only the deceased families
know the extent of the hurt.
Succor outside the law
IP law is
not set up to cure such emotional complexities arising from death. Privacy laws
like image rights or publicity right could have availed the deceased
families if actual images (photographs) of the deceased and their private life
or confidences were raised in the movie. In this case, Dark October has not put the deceased images in bad light, nor used
their images in any untoward manner. I do not find where the deceased names or
likeness are exploited for commercial value by the producers of Dark October. The commercial
exploitation of names or likeness of someone forms the classic spheres of
publicity right laws. Publicity and image rights laws doesn’t protect issues of
current affairs or news events.
How do
filmmakers avoid conflict or bring succor to victims of societal malaise and
their families when their creativity tends to collide with people’s right to
grieve? Transactional negotiation skills could be one of the ways to ameliorate
any hiccup in the release or production of a creative work like a movie,
particularly where legal remedies seem remote. Offering the deceased family as
in the Dark October scenario tangible
succor like dedicating the film to the deceased and including their names on
the film acknowledging list of contributors, setting aside a part of the profit
from the movie to promote any social-charity
causes the deceased were associated with in their life time or setting up a
memorial to honor the deceased after consultation-agreement with their families
are some of the alternative route to soothe a grieving family in this
circumstance. Afterall IP isn’t just for monetizing creativity or innovation
but also for promoting utilitarian causes and societal good.
