Jan 4, 2018

Tv And The Law- Legal Issues With Film Making In Nigeria

Entertainment on TV is a great form of “decompression”. I personally enjoy cartoons and movies produced in Hollywood, Bollywood, and of course my very beloved Nollywood. Growing up, I vividly remember watching Nigerian Movies like Violated and soap operas like Checkmate and Beyond the Clouds with family. This tradition has obviously continued, as we just saw The Wedding Party, which by the way is hilarious, and we are currently earnestly awaiting The Royal Hibiscus Hotel.

Through this, it’s impossible to miss the fact that the Nigerian movie industry aka Nollywood has and is experiencing an evolution from the home video outfit as we knew it, to a full blown production apparatus. This is evident in the plot quality, script and cast. Without a doubt, Nollywood has emerged to be a vibrant sector in the Nigerian economy. Who would have thought?

In light of these advancements, a lot of opportunities for improvement have consequently been revealed. As is similar with other emerging industries, having an effective and proactive legal frame work has been the major key to sustainability and profitability; hence the purpose of this write up is to point out the various legal issues that may emerge, as various stages of production in Nollywood.

For the purpose of this write up, I have summed the stages of film production into three parts:

1)    The Pre-Production stage:
This is the initial stage where the idea for any production is conceptualized. This stage includes but isn’t limited to sourcing capital, location and crew scouting, development of set.

2)    The Production stage:
This stage involves the actualization of the concept – technically the first proof of concept.

3)    The Post Production stage:
This stage involves the marketing to the target audience, negotiation with channel partners to enable distribution. These channel partners, might be cinemas and actual sales outlets.

Of course, through these stages a number of legal issues arise – I will enumerate a couple below in no particular order;

1)    Protecting the Intellectual properties (ideas and concepts) that are to be used in the production via Intellectual Property Laws.

2)    Developing or acquiring a script. In the case of the latter, effectively negotiating with the script writer about property rights.

3)    Agreement on securing debt to fund the productions and terms on repayment and defaults.

4)    Non-disclosure agreement to secure intellectual property that wouldn’t be featured in the final production.

5)    Acquisition and negotiation of right of use and access to various locations essential to the success of the production. Example, shooting a scene in a government owned airport.

6)   Acquisition of required licenses from original right owners. Example, right to use of songs, artistic works in Gallery.

It’s definitely reasonable to seek relevant legal advice to avoiding actionable scenarios.

Below are some things to put in mind.
Contractual relationship issues:
1)    What to do when contracting with a partner outside the country
2)    Contracts with Actors, producers, Director, and other parties involved in the production process
3)    Contracts with the channel partners
4)    When agreements are said to reached by both parties
Piracy legal issues
1)    Enforcement of Intellectual Property Rights
2)    What constitutes infringement of these rights.
3)    Determine the chain of title in a film – who owns what and how they can be enforced.

Case in point Mike Tyson's Tattoo in Todd Philips' The Hangover Part 2
S. Victor Whitmill, the Tattoo artist who created a distinctive tribal tattoo for boxer Mike Tyson, sued Warner bros to prevent the release of the sequel because his copyrighted artwork had not been properly licensed. Though the tattoo was on Mike Tyson's face in the original film, in the sequel it appeared on Ed Helms Face and was on major posters advertising the film.

Although the artist failed in his attempt to secure an injunction stopping the release of the movie, he proceeded on a copyright infringement suit. In rejecting the suit ,the Judge -Catherine D Perry indicated that she believed Mr. Whitmill suit has a great chance of success , as she confirmed that a tattoo being an artistic work can be copyrighted. She also rejected Warner Bros defense of Fair use.

Although Tyson received the tattoo in 2003, he also signed a document stating that the artist keeps the rights. Warner Bros claims that their rights to use the tattoo is part of the agreement with Tyson, but if Tyson never had those agreement in the first place it will be difficult to claim.

The foregoing case could have been avoided and funds put to better use by finding out what rights are needed and acquiring the proper license from the Artist or persons you believe granting the rights actually owns them.
Having a lawyer on retainer is definitely worthwhile to enable a smooth sail through the various production stages.

Toju Dottie
Senior Associate & Consultant
George Ikoli & Okagbue

Source; Linkedin