Naijacomedy: A legit ingenious and traditional entrepreneurial laughter within the digital ecosystems and jurisprudence

 

https://doi.org/10.20935/AL4113 

Nollywood, the Nigerian audiovisual industry is among the world’s biggest film industries currently. Globally, Hollywood of the United States and Bollywood of India occupy the first and second position hierarchically in terms of cinematic impact. One of the derivatives creations of the classical Nollywood is the birth of a subset industry-comedic, which this paper refers to as Naijacomedy. This short paper seeks to analyze the intersection of a strong copyright regime and indigenous creativity using traditional and ingenious Nigerian comedy, that began initially from a place of sheer recreation and entertainment but has become a niche entrepreneurial brand as a focal take-off point in the discussion on an African creative industry.

Introduction

Nollywood filmmakers in the beginning of the millennium produced blockbuster comedy-themed movies.[1] Commercially this genre of movies became successful and well received by the public.[2] Most of the actors with comedic skills that acted in Nollywood films started solo careers in stand-up comedy and later developed DVD production of their stand-up comedy.[3] Mainstream Nollywood industry created a platform for Naija[4] comedians (Nigerian comedians) to show case their talents commercially.[5] Naijacomedy has developed into a stand-alone Nigerian cultural entertainment industry.[6]

Nollywood, for example, propelled the comedic career of Nkem Owoh.  He is one of Nollywood’s renowned comedians, who had a role in Rattlesnake, an early (classic) Nollywood film.  Nkem Owoh later veered into stand-alone comedy films like, the blockbuster Osuofia in London.[7] Nigerians received the stand-alone comedy films with enthusiasm and this genre gained popularity within diaspora audiences outside Nigeria.[8] Naija comedy sketches mostly rely on traditional folklore, current affairs, and gossip about Nigerian entertainment celebrities and public figures.[9] These comedians generally perform in Nigerian Pidgin English, an indigenous form of Nigerian spoken English.[10]

Naijacomedy Threads Nollywood’s Path

The Nigerian comedy industry initially adopted the straight-to-video (STV) format like mainstream Nollywood industry in its distribution methods but quickly switched to online and other digital forms of distribution.[11] The STV format of distribution exposed Naija comedy’s creative works to audiovisual piracy.[12]  Just like in the early days of Nollywood films, pirates openly hawked on the streets unauthorized copies of Naija comedy audiovisual works and streamed online-unauthorized contents of comedy sketches.[13]

Some comedians learnt from the endemic piracy associated with the informal distribution system in Nollywood and switched to theatrical distribution in the form of live stand-up performances.[14] The theatrical live performances did not improve the negative impact of the piracy of Naija comedy sketches, as several bootlegged copies of the stand-up performances showed up on the streets.[15] Film pirates took advantage of Nigeria’s lax copyright enforcement regime.[16] Nigerian copyright law does not protect Naija comedy performances effectively from unauthorized reproduction and distribution of its work.[17]

A common phenomenon in Naija comedy is the incident of direct or indirect copying of comic works by other comedians.[18] Most comedians reproduce comic acts of others without proper license and attributions.[19] Cases of copyright infringement of Nigerian comedy are ubiquitous. For example, Nigerian comedians often reproduce Akpos, a popular urban metaphor for wittiness in their comic act without attribution.[20] The actual originator and proprietary owner of the Akpos brand of comedy is unclear.[21]

Akpos sketch of comedies seems to derive its origin from indigenous culture and folklore of southern Nigerian communities.[22] However, where a comedian creates an original act from an Akpos themed- sketch, such derivative work on its own may be copyrightable.[23] On a recent visit to Nigeria, I watched a comedic performance of a well-received Akpos sketch.  Thereafter, other comedians performed an unauthorized version of same Akpos sketches without modification as if it belonged to the public domain.[24] The unauthorized comedic sketch later floods the Internet without the permission of the original creator of that derivate.[25]

How Nigerian Copyright Protects Comedy

The Nigerian copyright law protects comedy as an artistic work and probably as a performance and audiovisual/cinematographic works.[26] Naija comedy stand-up sketches in audiovisual forms enjoy copyright protection as cinematographic works.[27] Under the Nigerian copyright law, a comedy should be

[f]ixed in any definite medium of expression now known or later to be developed from which it can be perceived, reproduced, or otherwise communicated either directly or with the aid of any machine or devices...[28]

for it to be eligible for copyright protection.[29] Therefore, if Naija comedians spent effort to make an original joke or comedy, copyright will avail the work.[30] The prevailing copyright originality standard in Nigeria is the sweat of the brow doctrine.[31]

Naija comedy online, memes, and other forms of digital-cultural arts are generally in few words, short digital-doctored graphics or short phrases.[32] Short phrases and single words generally lack the originality elements to secure copyright protection.[33] Therefore, traditional copyright may not avail the new forms of tech-savvy creators of cultural and indigenous digital literary works of authorship.[34] Generally, copyright does not protect short phrases or few words except the expression qualifies for an original authorship.[35] Trademarks may protect certain distinctive phrases and short words.[36] However, the focus of this paper is about copyright regimes.[37]

No More A Laughing Matter

Legal scholars have debated the effectiveness of copyright law in protecting comedic works and doubt its economic benefits in protecting creativity.[38] These scholars claim that the high cost of a lawsuit for copyright infringement for an emerging comedian makes it counterproductive.[39] Some scholars suggest industry norms and codes as cost effective way of enforcing comedic copyright.[40] In Naija,  a comedian can license his rights to a copyright management organization (CMO) to enforce copyrights on her behalf. Such CMO can lessen the financial burden of private lawsuits.

The emergence of digital production of comedy on social media and the Internet has increased revenue for owners of websites but left the comedy creators shortchanged.[41] Nigerian comedians have continued creating works despite joke theft and the lack of an effective legal regime.[42]  In the developed comedy industries, the entrenched community norm regulating joke theft has enabled an economically successful comedy industry.[43]

The U.S. comedy industry has instituted social norm systems that prohibits comedians from publicly performing stand-up jokes or sketches, which belongs to others.[44] It is doubtful in the era of digital distribution of visual content on the Internet how effective the norms of the U.S. comedy industry can protect infringement of comedic works outside the geographic jurisdiction of the United States.[45]

Further, most copyright scholars contend that copyright fails to protect comedy because of the influence of idea-expression dichotomy doctrine.[46] Since copyright protects expressions of ideas, it is difficult to protect jokes that are mostly idea centered.[47] The core of this argument is that the expressions of a comedy are limited.[48] The protection of ideas with limited means of expression contradicts the fundamental essence of copyright.[49] Therefore, Is Naija comedic expressions limited? This author avers that the Naijacomedy and comedians have creative and limitless means of expressing their craft judging from the contents available online.

Nigerian comedians have expressed concerns about the high rate of unauthorized performance of their comedic acts online and in live stand-up performances.[50] Naija comedy without legal protection may capitulate under the weight of copyright infringement.  For example, Atunyota Akporobomerere known with the stage name Alibaba, one of Nigeria’s foremost comedians of the Nollywood era emotionally appealed to the former Nigerian President, Goodluck Jonathan on national television for government intervention to save the comedy industry from copyright pirates.[51]

The amendment processes of the Nigerian copyright laws have commenced and the critical stages of Two-readings of the different versions of Copyright Amendment Bills before the Nigerian National Assembly is concluded.[52] The proposed new Nigerian copyright laws have not catered for comedy in any specialized way within its provisions. However, as a creative work comedy is statutorily copyrightable.[53]

Comedic Creativity in the Nigerian Digital Space

Contemporary Naija comedy mostly rely on audiovisual and digital platform for its production and distribution. Under Nigerian copyright law, the available defense for copyright infringement of Naija comedy works may be the fair dealing, “pastiche” (a literary concept included in the Nigerian copyright law), and parody.[54] The Nigerian copyright law makes parody a fair dealing exception for copyright infringement.[55]  Nigerian copyright case law on parody as fair dealing is either unreported or unavailable.  Nigerian courts should adapt the jurisprudential reasoning of other common law jurisdictions like the U.K. and the United States when deciding cases of Nigerian comedy copyright.[56]

In the United States, courts have defined parody as when “[A]n artist for comic effect or social commentary, closely imitates the style of another artist and in so doing creates a new work that makes ridiculous the style and expression of the original.”[57] The United States courts have further granted parody a fair use exception in copyright infringement cases based on the four factors set out under the U.S. Copyright law.[58] All four factors in the fair use provision for parody in the U.S. law are not bright-line rule but a guideline that the court uses on a case-by-case basis.[59]

Naija comedy unlike the U.S. comedy industry does not reside in intellectual property’s “negative space” because the Nigerian laws grants legal protection to its comedy.[60] Rather Naija comedy industry struggles under the negative weight of poor copyright enforcement and film piracy.[61]  Kal Raustiala and Christopher Sprigman, coined “IP negative space” to refer to creative and innovative works or industry like fashion and tattoo that thrive successfully without the protection of IP law.[62] Naija comedy is not thriving because the enforcement of the Nigerian law at the basic level is poor.[63] On the backend of entrepreneurial pursuit piracy threatens the comedy industry in Nigeria.[64]

Conclusion

Would industry comic norms effectively control comedian copyright? Perhaps in a developed industry with sophisticated institutions to moderate and regulate such regimes.[65]  In Naija, an effective and properly organized CMOs for the audiovisual content creators may be the panacea. Furthermore, Naija comedians should engage competent and subject matter experts in digital licensing and general licensing rights to engage in creative transactions on their behalf. A CMO can lessen the financial burden of private lawsuits because of its capacity to fund litigations. The Nigerian creative regimes should enable and promote entrepreneurial laughter so that this art form will continue to humorize the current economic hardships. While at the macro-level creating economic benefits for Naija comedy.

 

 

 

 

 

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[1] Jonathan Haynes, “New” Nollywood: Kunle Afolayan, 5 Black Camera 53, 61-66 (2014).

[2] Id.

[3] Onome Okome, Reversing the Filmic Gaze: Comedy and The Critique of Postcolony in Osuofia in London in Global Nollywood, The Transnational Dimensions of An African Video Film Industry 146-156 (2013).

[4] Naija: the word has acquired a life of its own to denote and refer to the Nigerian culture, persona, character, identity, and person. However, social media and the millennials’ usage of this coinage Naija have become a fashionable trend and gained acceptance globally.

[5] Okome, supra note 4

[6]  This author first introduced Naijacomedy in his SJD Dissertation (2018); see further Samuel Samiai Andrews, Reforming Copyright for a Developing Africa, 66 J Copyright Soc’y U.S.A. 1, 28-29 (2018).

[7] Norimitsu Onishi, Nigeria’s Comics Pull Punch Lines From Deeper Social Ills , New York Times, (December 5, 2015), https://www.nytimes.com/2015/12/06/world/africa/nigerias-comics-pull-punch-lines-from-deeper-social-ills.html?_r=0.

[8] Id.

[9]Id

[10]Id.

[11] Okome, supra, note 4.

[12] Norimitsu Onishi, Nigeria’s Booming Film Industry Redefines African Life, New York Times, November 15, 2021  http://www.nytimes.com/2016/02/19/world/africa/with-a-boom-before-the-cameras-nigeria-redefines-african-life.html?_r=0.

[13] Id.

[14] Id.

[15] Id.

[16] Andrews, supra note 7

[17] Copyright Act (2004) Cap. (28), § 6 (Nigeria).

[18] Ngozi Emedolibe, The Nigerian Comedy Industry, NATIONAL MIRROR NIGERIA November 15, 2021, http://nationalmirroronline.net/new/the-nigerian-comedy-industry/ (describing the paucity of laws and policy to protect comic acts in the digital platforms from being infringed and for protecting copyrighted comic acts on the digital platforms and further reporting further the comments of Ali Baba a veteran Nigerian comedian on the lack of copyright regime to protect Nigerian comedians).

[19]Id.

[20] James Yeku, Akpos Don Come Again: Nigerian Cyberpop Hero as Trickster, 28 J. AFR. CULT. STUD. 245 (2016); see generally Akpos Jokes, http://www.akposjokes.com/

[21]Id.

[22] Id.

[23] Copyright Act (2004) Cap. (28), § 26 (Nigeria).

[24] Emedolibe, supra, note 19.

[25]Id.

[26] Copyright Act (2004) Cap. (28), §1(2) (a) (Nigeria); Copyright Act (LFN) (2004), Cap.28 §.23 (d) & §§26-28 (the current Nigerian copyright law defines performers’ rights to include the exclusive right of a creative to control the “[r]eproducing in any material form ...'' of her work); Another important copyright in comedy is the literary rights in scripts for the jokes. The writers of the jokes or who have acquired license to the script have copyright in the resulting comedy or its performance; Rebecca Tushnet, Performance Anxiety Copyright Embodied and Disembodied, 60 J. COPYRIGHT SOC’Y 209-248 (2013); The distribution and production of contemporary Nigerian comedy works in audiovisual and as cinematic works will qualify it for copyright protection under artistic and literary works.

[27] Copyright Act (2004) Cap (28), §§ 6 & 26 (Nigeria).

[28] Copyright Act (2004) Cap. (28), §1(1) (b) (Nigeria).

[29] Id.

[30] Id.

[31] Offrey v Ola & Ors Hos/23/68 (1969) (Nigeria) (holding that copyright would exist in each product if that product is the result of some large or real expenditure of mental or physical energies of the producer and the laborers skill was not aa negligible or common place one); see e.g. Raconteur Productions Limited v Dioni Vision Entertainments Limited and others, FHC/L/CS/401/2017 FHC/L/CS/401/2017 (Nigeria).

[32] Justin Hughes, Size Matters (or Should) in Copyright Law, 74 Fordham L. Rev.575 (2005).

[33] Id.

[34] Connor Moran, How much is too much? Copyright Protection of Short Portions of Text in the United States and European Union After Infopaq International A/S v. Danske Dagblades, 6 Wash. J. L. Tech. & Arts 247 (2011); Farhad Manjoo, State of the Internet: The Post-Text Future is Here (You Read That Right), New York Times (November 19, 2021),  https://www.nytimes.com/interactive/2018/02/09/technology/the-rise-of-a-visual-internet.html

[35] Hughes, supra note 33

[36] Barton Beebe, The Semiotic Analysis of Trademark Law, 51 UCLA LAW REVIEW 621 (2004); Graeme B. Dinwoodie, What linguistics Can do for Trademark Law, https://works.bepress.com/graem­_dinwoodie/44/ (November 20, 2021).

[37] Catherine Seville, Trademarks, 57 Int’l & Comp. L. Q 955-67 (2008).

[38] Dotun Oliar & Christopher Sprigman, There’s No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand –Up Comedy, 94 V. L. Rev. 1787 (2008) (stating that copyright laws do not effectively protect jokes or comedy); see also Elizabeth M. Bolles, Stand-Up Comedy, Joke Theft, and Copyright Law, 14 Tul. J. Tech. & Intell. Prop. 237 (2011) (citing Foxworthy v. Custom Tees 879 F.Supp.1200 (N.D. Ga. 1995 as the effectiveness of copyright law to protect comedy or jokes); see e.g., Trevor M. Gates, Providing Adequate Protection for Comedians’ Intellectual Creations: Examining Intellectual Property Norms and “Negative Spaces,” 93 Or. L. Rev. 801 (2015) (commenting that comedy industry continues to thrive without copyright law strong support).

[39] Bolles, supra note 39

[40] Gates, supra, note 39

[41]Id.

[42]Id.

[43]Id.

[44] Foxworthy, 879 F. Supp. at 1204.

[45] Jeremy A. Schachter, That’s My Joke… Art…Trick: How the Internal Norms of IP Communities Are Ineffective Against Extra-Community Misappropriation,12 Va. Sports & Ent. L. J. 63 (2012).

[46]Id. at 1802-1805.

[47]Id.

[48] Bolles, supra note 39 at 244-252.

[49] Nichols v. Universal Pictures Corp. 45 F.2d 119 (2d Cir. 1930).

[50] Jordan Abiola, Alibaba Spits Venom as Regards The Piracy in Nollywood and Nigeria in General, (November 16, 2021), https://www.360nobs.com/2015/03/ali-baba-spits-venom-as-regards-the-piracy-in-nollywood-and-nigeria-in-general-must-read/; see also  https://youtu.be/WrNAzjB_jLQ (describing the weak legal protection policy safeguard comedy acts in the digital platforms from being infringed and further reporting  the comments of Ali Baba a veteran Nigerian comedian on the lack of copyright regime to protect Naija comedians).

[51] Id.

[52] Chijioke Okorie, Slow and Steady Wins the Race? -Nigeria’s Copyright Amendment Bill is Finally before the National Assembly, IPKat <https://ipkitten.blogspot.com/2021/07/slow-and-steady-wins-race-nigerias.html> accessed November 19, 2021(This Bill an Executive Bill sponsored and recommended by the executive arm of the Nigerian government. There were two versions of Bills before the Nigerian National Legislature to amend its copyright laws).

[53] Copyright Act (2004) Cap. (28), §1(2) (a) (Nigeria).

[54] Copyright Act (2004) Cap. (28), Second Schedule § (b) (Nigeria); Xiyin Tang, That Old Thing, Copyright…Reconciling the Postmodern Paradox in the New Digital Age,39 AIPA Q. J. 71, 87-88 (2011) (distinguishing pastiche as a parody that has lost its sense of humor).

[55] Copyright Act (2004) Second Schedule (Nigeria).

[56] Campbell v. Acuff-Rose, 510 U.S. 569 (1994) (holding that courts must decide whether the work violates copyright using fair use factors in 17 U.S.C. §107).

[57] SunTrust Bank v. Houghton Mifflin Co.,136 F. Supp.2d1357-1371-72n. 7 (N.D. Ga).

[58] Campbell, supra note 55 at 580-81 (holding that parody is not presumptively a fair use except it fulfils the provisions of  17 U.S.C. §.107 which states the four factors to be: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole and (4) the effect of the use upon the potential market for or value of the copyrighted work).

[59] Harper & Row Publishers Inc., v. Nation Enters. 471 U.S. 539, 587 (1985).

[60] Kal Raustiala & Christopher Sprigman, The Piracy Paradox: Innovation and Intellectual Property in Fashion Design, 92 Va. L. Rev. 1687 (2006) (defining negative space to mean an industry that grows without the exclusivity and monopoly granted by IP laws).

[61] Channels Television (Nigeria), The Alibaba Piracy Question to Nigerian President (April 5, 2015), https://youtu.be/7Yza0iSc008.

[62] Elizabeth L. Rosenblatt, A Theory of IP’s Negative Space, 34 Colum. J. L. & Arts 317, 322 (2011).

[63] Channels Television (Nigeria), supra note 62

[64] Id.

[65] Trevor M. Gates, Providing Adequate Protection for Comedians’ Intellectual Creations: Examining Intellectual Property Norms and “Negative Spaces” 93 Or. L. Rev. 801 (2015) (commenting that comedy industry continues to thrive without copyright law strong support).