By Mr. Amadu Bah, Copyright Officer, ARIPO
Copyright, like any other Intellectual Property Rights (IPRs), can be valuable through various exploitations. The exploitation of works created may vary, which could be through sales, licensing, assignment, merchandise, inter alia. The following are some of the ways to make money from copyright.
Copyright, or aspects of it, may be assigned or transferred from one party to another, creating a “license to use.” One very common example of copyright licensing is when a musician records an album from a record company and agrees to transfer all copyrights in the recordings to the record company in exchange for royalties and other forms of compensation.
Licenses are granted by an authority to allow usage. In the case of the example above, the copyright owner’s use and distribution of resources (i.e. the musician), she/he may decide to offer her/his photograph for free or charge a price; either way, for purposes of album cover or advertisement. The musician can include a license to limit usage and maintain the copyright. Just because someone pays money doesn’t mean they have full control or rights to what they are buying. Licenses can dictate the number of uses, the bounds of use, and even the length of time until the license expires.
Moreover, under “work for hire,” the employer holds the copyright and not the author or creator, unless stipulated otherwise in a contract. In many cases, this applies to creative agencies or its client (by contractual agreement). In such cases, the creator retains “moral rights” to their work, that is, the right to paternity, also known as the right of attribution and right of integrity. This is partly why published articles refer to the author, although authors have rights to anonymity. Copyright laws are incredibly complex, but this should be a good start in understanding how to exercise your right over your copyright and related rights.
Another example could be seeking permission or licensing for films that can be incredibly long and expensive since they are complex works involving copyrights of many contributors (music, script, cinematography, etc.). In films, the IPRs exist not only for script, images, footage and music but also for brand names, logos, fonts, texts, emojis, and design. This often makes the rights clearance process lengthy and complicated. However, it is worth noting that protecting your IPRs ensures that you reap or benefit from your effort and labour.
While in an assignment, the copyright owner has the right to assign his copyright to any other person or organization. The effect of assignment is that the assignee becomes entitled to all the rights related to the copyright of the assigned work. For example, a rightsholder may decide to assign their right to a Collective Management Organization (CMO) or a right holder Association to manage and administer their rights on their behalf. In return, the rights holder should be remunerated as per the agreed terms.
The concept of Merchandising originated from the Roberson v. Rochester Folding Box Co. case in  in the United States of America. This case led to New York State’s enactment in 1903, naming it a tort or misdemeanour to use another’s name or likeness in advertisements or for business purposes without authorization.
Over the years, creators and copyright owners have exploited this route through character merchandising, including fictional, personality, and image merchandising. Character merchandising can be defined as the exploitation of names and images of well-known or famous personalities and fictional characters in connection with a product or service. This can be achieved through the adaptation or secondary exploitation, by the creator of a fictional character or by a real person or by one or several authorised third parties. A typical example can be the artistic works such as Cinderella or Pinocchio or in cinematographic works Mickey Mouse or Batman, inter alia. When put on a product, these characters and their essential elements, like T-shirts’, toys and home decor, attract consumers that want these elements on the products more than the product itself.
It is believed that merchandising, when extended into new products, may eventually increase exposure and increase the appeal of the said product. It is also a relatively low cost of gaining market value. A practical example is a rate at which most kids love the character mickey mouse. Images of artists like South African musician Lucky Dube, Malian singer and songwriter Salif Keita, and Tanzanian recording artists’ Diamond Platnumz’ have also been used in different products to add value and attract fans of these creators to buy such products.
In a recent case in Ghana, Accra High Court ordered Melcom to pay Hiplife legend, Tic Tac, compensation of GHC300,000 ( approximately US$49,710) for breach of contract by use of his image. Nonetheless, Nigerian singer and songwriter Wizkid’s USD3million endorsement with the United Bank of Africa is arguably the biggest in Africa.
Furthermore, personality merchandising involves using an individual’s true identity in the marketing or advertising of goods and services. This may as well include the person who plays the character. A prime example of this is ‘Iron Man.’ The t-shirts that are red and gold can easily be associated with ‘Iron Man,’ and people buy them mostly because of such association. On the other hand, if a famous musician like Nigerian singer, “Burna Boy” endorses a particular brand, then people, owing to the distinct personality acquired by the musician, will buy the product because their favourite superstar is associated with that brand.
Lastly, there is image merchandising in which the actual person and the character he plays are not differentiated. People associate the person as the character itself instead of their real personality. For example, Robert Downey Jr. is more famous as Tony Stark and Iron Man than himself, i.e., his actual personality. Therefore, people would want to buy ‘Iron Man’ merchandise with his face or voice (in a toy).
Similar to the above, merchandising of artistic works is the fourth type of character merchandising. It includes works of art that are used on products such as, artistic work of Leonardo Da Vinci, especially the Mona Lisa, which is world-famous, and various products are merchandised based on it, even in several museums.
Character merchandising does not have one specific legislation that governs it but falls under the scope of protection of many IP laws, mainly trademarks, copyrights and designs. Copyright provides essential protection to the owner for merchandising of products. For example, in the cases of cartoons or animated images and pictures, the artist who creates them becomes its owner and can give others the right to exploit it in a manner that allows for merchandising of the characters or any aspect of her/his work.
Most importantly, a copyright owner may decide to commercialize their work either as one of payment or sell copies of their work. A typical example could be sales of a musical album, book, articles, images, or paintings among others.
Additionally, digital platforms have created a huge market for content creators, like musicians, authors and audiovisual performers. Platforms such as YouTube, SKIZA, Netflix, Instagram and Apple iTunes have created a new window of opportunity for legal exploitation of copyright. This has been more prevalent during confinement due to COVID-19 restrictions.
Before the Covid 19, pandemic artists and performers mainly relied on live performances, tours, gigs to earn money. However, with new technology and diverse digital platforms, they can perform for their fans from the comfort of their homes and be compensated for the performance. Consumers of copyright content can also follow online and live stream performances and purchase artworks from galleries and electronic books.
Copyright is arguably an effective tool for creators and rights holders to leverage on in order to reap the fruit of their labour and skills. The available mechanisms, if, adequately exploited can facilitate compensation for creators and rights holders. Copyright owners deserver compensation for their ingenuity and the value they add to culture and knowledge. They enhance the social, cultural, and economic well-being of the ARIPO Member States and Africa as a whole.