Oct 11, 2018

IP ABC—Use of a popular Ankara pattern in a design. Are we liable for copyright infringement? | Infusion Lawyers




Question - 
I am Bode Balogun, a creative artist and CEO of Bright Prints Media, a new startup that specializes in 2D & 3D arts and textile prints in Osun State.

Two months ago, I was contracted by Segun Saka, a staunch supporter of a governorship aspirant in the state to design and make materials for the purpose of boosting the aspirant’s electoral campaign. According to Mr Saka, this design would be a customized Ankara with blue, green, and yellow colour themes, having the portrait of the aspirant in black and white, with a stripe around the circle bearing the party motto above the portrait and the candidate’s name below it. This design is a popular concept used in Nigerian political, religious, and traditional events.My company made over 100,000 yards of the textile to the specification and delight of our client. As campaigns intensified with each passing day, we printed more textiles for our clients. 


But on 27 July, my company received a court process demanding our appearance before the High Court of Osun State. Pink Media, a reputable print-media company in Lagos, is claiming 10 million naira damages against Bright Prints Media for allegedly infringing on their copyright in the design we used for Mr Saka. Pink Media also wants an injunction to stop Pink Media from continuing to print the Ankara materials.

After a quick check, we discovered that another supporter of the governorship aspirant had contracted Pink Media to make customized wax-print. The picture on their design and colour theme is quite similar to ours. They had completed and delivered theirs before ours. But we honestly did not know about their design before we started ours. Is there anything we can do? We are in despair as 10 million naira damages would damage our business.


Answer
You want to know if your design infringes Pink Media’s ‘copyright’ in the Ankara design. The answer is NO. Your design in the textile material does not infringe on Pink Media’s ‘copyright’.

This is because though your work is an artistic work under section 1(1)(c) of the Nigerian Copyright Act, section 1(3) provides that an “artistic work shall not be eligible for copyright, if at the time when the work is made, it is intended by the author to be used as a model or pattern to be multiplied by any industrial process.”
So there is no copyright to infringe on.

 


Since Pink Media’s design—just as yours—is “used as a model or pattern to be multiplied by any industrial process”, it is not protectable as copyright but industrial design.

Section 12 of the Patents and Designs Act is the relevant law. It provides that “any combination of lines or colours or both, and any three-dimensional form, whether or not associated with colours, is an industrial design, if it is intended by the creator to be used as a model or pattern to be multiplied by industrial process and is not intended solely to obtain a technical result.”

And unlike copyright which exists in a work once it is created, industrial designs have to be registered. To be registered, section 13 (1) of the Act requires that (a) the design is new; and (b) it is not contrary to public order or morality.


Therefore, for Pink Media to be successful in its action, it would have to register its design with the Trademarks, Patents and Designs Registry (if it has not already registered the design). But since—as you have mentioned—the design is a popular concept used for different social events in the country, it may not be regarded as new anymore.


Always endeavour to survey the design market before deciding to use any design or pattern already in use in the public.
A ‘popular concept’ is not the same as a public-domain design. If Pink Media had registered the design as an industrial design, the story would have been different, putting your business on the line. Always check, and check again.


By the way, the court vested with jurisdiction to hear the matter is the Federal High Court, not the High Court of Osun State.
Under both the Nigerian Copyright Act, and Patent and Industrial Designs Act, jurisdiction over intellectual-property matters is vested in the Federal High Court—section 38 Copyright Act; section 26 Patents and Industrial Designs Act.

So do not despair as sometimes the difference between despair and hope is just a different way of telling stories from the same set of facts. To properly respond to Pink Media’s claims before the High Court of Osun State, please consult an IP lawyer or law firm.

Best wishes
IP ABC
Follow-up questions, if any, are welcomed.


1 comment:

  1. Genuine Effective Love Spell To Get Your Ex Back My advise reveal you all to contact Dr happy the best on love spell at happylovespell2@gmail.com, here is my relationship story. About a month ago I got back to my ex(after 2 and half years separated).Everything was ok and she was the most adorable woman in the world. she spoke about wedding ceremony, how many kids we would have, said that our relationship was the most important thing in her life and she was 100% sure about it…Then she traveled to work in other country for 3 weeks. she changed his behavior completely. she disappeared every night, was saying she had to do some work and would talk to me later, but disappeared the rest of the day and night… no explanation, when I asked why she was disappearing every night, she stopped answering me. she’s ignoring me since last week, April 15. she ignored even my birthday, that was April 16. Not even a message. I wrote to her a few times trying to understand what happened, she read but just ignored me.I feel so bad cause I couldn’t stop contacting and trying to understand what happened.i loved her so much and wanted to get her back, then i was told to contact happylovespell2@gmail.com who can help out with a love spell to reunite your relationship back, so instantly do contact him and give him a try and trust me he did an urgent effective love spell for me and with in 24hours promise he made to me, my woman was back, today i testify to you all that you should seek and contact Dr happy for his spell result is genuine sure and guarantee unite and get your ex back save your marriage/relationship problem now,
    You can also know more about his spell Blogs site.http://happylovespel.blogspot.com.ng/
    Email him now on.. happylovespell2@gmail.com
    If you want to talk for more info or consultation. Whatsapp/cal +2348133873774
    For more assurance and spell guarantee, visit his website...happylovespell2.webnode.com/

    ReplyDelete