In 2019, The Ghana National Folklore Board stated that it was taking steps to sue the producers of the award-wining movie, Black Panther for using its cultural fabric ‘Kente’ designs in its movie.[1] The Board stated that the unauthorised use of the Kente designs in some of the fabrics used in the movie, Black Panther is an infringement of Ghana’s Copyright laws. It was also reported that the Board was displeased with the producers of the TV series ‘American Gods’ for misrepresenting a popular folk character in the folk story of the Akan tribe of Southern Ghana.[2] Nigeria and Ghana have similar copyright laws, and both laws have provisions regulating the use of folklore.

What is Folklore?

The Nigerian Copyright Act defines folklore as ‘a group oriented and tradition-based creation of groups or individuals reflecting the expectation of the community as an adequate expression of its cultural and social identity, its standards and values as transmitted orally, by imitation or by other means. . .’[3] Folklore includes folk poetry, folk riddles, folk music, folk dances, sculptures, carvings, folk art, and indigenous textiles Every tribe in Nigeria has its own folklore, though there may be some similarity between the expressions of folklore of indigenous community and another other tribes in Nigeria. For example, virtually every tribe in Nigeria has a folk story about how the tortoise got its patchy shell. Folk stories are usually used to teach moral lessons. Sometimes, a folk song may accompany the folk story, to make it more interesting, captivating and to aid easy recall. The Bata dance of the Yorubas and the Atilogwu dance of the Igbos are examples of folk dances. The Aso-Oke of the Yorubas, as well as the Batik and Tie and Dye are examples of indigenous textile which are part of the Nigerian folklore.

Section 31 of the Copyright Act prohibits the reproduction and communication to the public by way of performance, broadcast and distribution, expressions of folklore. It also prohibits the adaptation, translation and other transformations of expressions of folklore for commercial purposes or their expressions outside of their traditional or customary context. For example, the use of a cultural praise song for secular purposes may be deemed offensive and may constitute a use outside of its customary context.Where expressions of folklore are included in a printed publication or where they are contained in any work communicated to the public, their source must be indicated, especially where the source is known.[4]The source is expected to be acknowledged by mentioning the community or the place from where the folklore expression used is derived.[5]The challenge with acknowledging the source of a folklore when it is used,  lies in the fact that it may be difficult to ascertain the exact origin or community from which an expression of folklore is derived, because of the similarity in the expressions of  folklore of different ethnic groups in Nigeria.

Where expressions of folklore are to be used, the consent of the Nigerian Copyright Commission (NCC) must be sought and obtained. The Nigerian Copyright Commission is the body responsible for the administration of copyright in Nigeria.Expressions of folklore are protected as neighbouring rights under the Nigerian Copyright. Unlike works protected by copyright proper, which are created by identifiable individuals, expressions of folklore are not created by identifiable individuals, but are usually communally created and many times, theircreators are unidentifiable, because they may be of ancient origin. It is because it is impracticable to seek permission from an individual creator (since it is not individually, but communally created) that the authorisation of the Nigerian Copyright Commission is required to be obtained by law.

The use of expressions of folklore will be considered unlawful if the permission of the NCC is not obtained. There are civil liabilities and criminal sanctions for the unlawful use of an expression of folklore. An unauthorised use of expressions of folklore is a statutory breach of duty and a person who breaches this duty is liable in damages to NCC.[6]

In addition to damages, or without an award of damages, an injunction and any other remedy which the court deems fit in the circumstance may be awarded by the court.[7]Failure to obtain the consent of NCC before the use of expressions of folklore in any work, the wilful misrepresentation of a source of an expression of folklore and the wilful distortion of an expression of folklore in a manner prejudicial to the honour or cultural interest of the community from which it originates are all offences under the Copyright Act.[8]

An offence committed under the Act is punishable with a fine of #100,000 and/or an imprisonment term of 12 months- in the case of individuals. While a body corporate, will upon conviction be liable to a fine of #500,000. The imposition of a fine or a term of imprisonment is without prejudice to an order offorfeiture of the offending or infringing copies against the offender.

In view of the civil and criminal liability that may arise from the unauthorised use of folklore, it is necessary to seek and obtain the consent of the NCC before utilising expressions of folklore in any work. Where a person is in doubt about whether a work constitutes folklore, it is best to seek clarity from the Nigerian Copyright Commission.

 

[1] Kwame Dadzie, ‘Folklore Board to Sue Black Panther Producers for Using ‘Kente’ Without Permission’ (24 May 2019)  https://citinewsroom.com/2019/05/folklore-board-to-sue-black-panther-producers-for-using-kente-without-permission/ accessed 31 December 2020.

[2] ibid.

[3] Copyright Act, section 31(5).

[4] Copyright Act, section 31(3).

[5]Copyright Act, section 31(3).

 

[6] Copyright Act, section 32.

[7]Copyright Act, section 32.

[8] Copyright Act, section 33.