Mopping through MOPICON

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“Every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.”

Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society – (a) for the purpose of preventing the disclosure, of information received in confidence; maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematographic films; …”

 

 

This is the summary of the provisions of the Nigerian constitution on the right to freedom of expression. The section has become relevant in the light of a draft bill being circulated, seeking to establish a Motion Picture Council of Nigeria (MOPICON). The name seems innocuous enough, but when a look is taken at what the Bill seeks to empower Mopicon to do (see the MOPICON Draft Billor read a review of the Bill here), then it is time to be a little concerned.

 

As is typical with most Bills in our country, there is no White Paper – no summary of the challenges or mischief facing the motion picture industry. There have been a couple of interventions as to why the Council is needed (see here and here), but these only appear to vaguely refer to the “challenges” facing the industry and the fact that some guilds gained traction and others didn’t. At a first glance therefore, it may be that the production of the Bill was driven by a need for validation in a certain faction of the industry old-timers. A review of the law itself doesn’t help either in identifying what mischief the law seeks to cure, or the problems it is trying to address.

 

The Bill seeks to establish the Council for the purpose of charging it with duties that include, amongst others:

“(a) determining who are Motion Picture Practitioners;

(b) determining what standards of knowledge and skills are to be attained by persons seeking to become registered Motion Picture Practitioners and reviewing those standards from time to time;

(e) regulating and controlling professional practice in the motion picture industry…”

 

It may perhaps then be that the industry has been contending with fake practitioners, lacking in knowledge and skills and functioning without professional regulation and control. These charlatans were probably duping unsuspecting members of the public into hiring them and causing the economy to lose billions of dollars monthly. Who knows?

 

The Bill proceeds to segment the industry into Guilds and Associations. Writers, directors, actors, cinematographers, editors, creative designers and sound and lighting technicians will each have their own guild, while distributors/marketers and producers will belong to associations. Each of these guilds must seek accreditation from the Council.

 

The drafters of the Bill appear to have some doubt over which ministry is supposed to supervise the Council. This is very likely to be connected to the dispute between the Ministry of Information and the Ministry of Communication which arises from time to time, over issues where their jurisdictions ostensibly overlap. As such, the Bill frequently refers to a “Minister in charge of motion picture”.

 

The Bill then creates tiers of membership with the Council – associate members, full members and fellow members. Associate members need to be enrolled in training programmes (of not less than 3 years) with full members who have at least 10 years of experience, and who are recognised and accredited by the Council. Full members need to undergo at least a year’s professional training as approved by the Council, or have acquired “skill and expertise in Motion Picture Practice for a period not less than 3 years.” Fellows get so appointed by the “Privileges and Ethics Committee” of the Council subject to the criteria that said committee will lay out. However, a minimum consideration appears to be that the candidate for fellowship must show that “in the fifteen year immediately preceding the date of his/her consideration, [he/she] has been in continuous active practice as a motion picture practitioner.” What is active continuous practice? If I go away for research/participant observation for my next project for, say, 18 months, have I broken my period of continuous active practice?

 

The Bill says you can’t be a member unless you’re 18 years old, so it’s unclear what this portends for child actors (or other teenage apprentices), given the sanctions for being involved in motion picture practice, which we shall get to in a minute. Foreign actors/practitioners too are excluded unless their home country has a reciprocal arrangement recognising and permitting Nigerian actors/practitioners.

 

The Bill then gets even more interesting.

 

You’re not entitled to practice as a motion picture practitioner unless you’re a member of a recognised Guild or Association. You’re not allowed to stay in your lane, never mind that the constitution grants you the freedom to belong to or leave associations.

 

It goes further to say that you cannot take anyone to court to recover your fees unless you’re either a member or a fellow of the Council, in respect of any work you’ve done as a motion picture practitioner. This means that if you take your debtor to court, it will be a defence for him to say you’re not entitled to the fee since you’re not a member or fellow of the Council.

 

Additionally, if you’re not registered as a member with the Council, you are prohibited from producing or making projects for either the Cinema or Home Video Market.

 

Breaching any of these provisions could make you liable to a fine of N100,000 or to imprisonment for a term of 2 years.

 

Also interesting is that MOPICON will furnish the Nigerian Film and Video Censors Board with the list of practitioners to be licensed under the NFVCB Act.

 

Oh, and if criminal proceedings are brought against you under this law, as they pertain to acts that are offences if done by unregistered persons, the law says there is a presumption that you are unregistered unless you can show otherwise. Changing burden of proof in criminal proceedings. Interesting.

 

What does the MOPICON Bill really set out to achieve? I see nothing more than the establishment of an oligarchy within an industry that has thrived in spite of the government’s oil-centred tunnel-vision. A select group of people (most likely the promoters and their affiliates will determine who is a member of the industry and who isn’t, who can be a “motion picture industry practitioner” and who can’t. The question is, why?

 

Is the industry suffering due to a lack of accreditation of individuals and guild membership? That’s not the impression I get. Rather, because the industry has operated under free market principles so far, those who have distinguished themselves are establishing reputations, are able to attract the funding required to execute bigger projects. Certain producers, directors and editors are beginning to be known as the go-to guys because their quality is speaking.

 

MOPICON will effectively become a licensing authority for the creative industry. License to be an actor, license to be a script-writer, license to direct how scripts are interpreted onto film, license to hold a boom mic and work the sounds and lighting, license to collect one’s fees for one’s work. To me, this is absurd and the omnibus, ubiquitous Nigerianism of wanting to “sanitise” the industry cannot hold. In more developed “motion picture industry” jurisdictions, there is no such regulation. There are censors, as there are in Nigeria, but these operate to classify movies as appropriate or otherwise for different audiences. Some might point to bodies like the Screen Actors Guild but those guys (and a few contemporaries) started out as trade unions to negotiate fairer working conditions for actors. They were not and are not a professional licensing authority. Like these “saner climes”, we also have regulations from the Film and Video Censors Board, as well as a Broadcasting Code from the Nigerian Broadcasting Commission. What tangible benefit is MOPICON going to add?

 

Creativity should not be subject to a license from anyone. Imagine if we couldn’t write novels or blog, stage plays, paint pictures, make music, make sculptures, take pictures unless a small group of tsars said it was okay. This is exactly the same thing. Creative people are judged by how much the public enjoys or rates their work. Quality will shine and be rewarded in due course. The same is true of the converse. I personally hope the MOPICON Bill doesn’t pass.

 

So, some guy went and trademarked “Nollywood”…

 

News reached us in Nigeria a few days ago that someone (a man named Nicholas Opara) had applied for and received approval from the USPTO to register the word “Nollywood” as a trademark in the United States. At first it didn’t seem to me like something anyone should worry about but the Nollywood people at the NBA’s Section on Business Law Conference were clearly disturbed. There is a sense that anyone using the expression “Nollywood” in the context of our entertainment industry will owe Mr Opara money. This is incorrect, for the reasons given below.

 

You can see the USPTO report on the NOLLYWOOD trademark here. This tells us that the registration was in classes 35 and 38. (You can find our quick refresher on trademarks and classifications here.)

 

What does this mean? Well, trademarks are registered in connection to goods and services. So you can’t just walk up to the trademarks office and ask to register “TEXTHELAW” in abstract. You would have to tell them what goods or services will be branded with the trademark. In the refresher course link above, you will find that there is a standardised international classification of goods and services, available in most countries. In Mr Opara’s case, he registered NOLLYWOOD in connection with “Advertising; business management; business administration; office functions” (class 35) and “Telecommunications” (class 38).

 

What is the effect of the Class 35 & Class 38 registrations? It means that you can’t set up businesses that provide the services listed under these classes (i.e. advertising, business management, business administration, telecommunications) and use the word Nollywood in the business name or trademark of your company. Mr. Opara can set up Nollywood Telecoms or Nollywood Business Managers and it would be fine. It does NOT mean that anyone operating in our Nollywood needs his permission to use the word or that the industry as a whole is held to ransom by Mr. Opara.

 

Could he have registered the trademark in Class 41? The services listed under class 41 are “Education; providing of training; entertainment; sporting and cultural activities”. This is the class that would have given Nigerian practitioners real concern, as it would have meant that trading in the US as movie industry practitioners under the name Nollywood, would have infringed Mr. Opara’s registration. However, given the popularity and famousness of the term “Nollywood” worldwide and the industry it represents, it is unlikely that the USPTO would have agreed to a registration in this class. And if they did, it would be fairly easy to instruct a US attorney to challenge such a registration as the chances of getting it revoked are very high.

 

Should an actor or the Guild of Actors/Directors register Nollywood as a trademark in Nigeria? No. First of all, a trademark cannot be descriptive of the goods or services it brands. So, for example, you cannot register “PURE WATER” as a trademark to brand drinking water. In the same vein, “Nollywood”, which has come to mean the movie service industry segment of the Nigerian entertainment sector cannot be registered as a trademark for entertainment services, in my opinion. Secondly, the whole point of a trademark is to distinguish your goods and services from those of others. So even if the Nigerian Trademarks Registry somehow approved the trademark application, it would be a trademark of very little value, since the entire industry already refers to itself as Nollywood.

 

Did Nicholas Opara miscalculate or does he have something up his sleeve? My mentors in the legal profession taught us not to comment on speculation so they would probably be disappointed by this paragraph. However, the cynic in me thinks he probably tried class 41 initially and was refused, so he settled for the next best classes. Nonetheless, 35 and 38 registrations will not affect 41 services, especially if it’s clear that you didn’t invent the word. On the other hand, it is quite plausible that he wants to deploy Nigeria-centric services in the US and I guess this isn’t a bad thing. It wouldn’t be out of place, for example, to have Hollywood Drycleaners or Hollywood Barbers in Nigeria. If his plan is something more along those lines, then all the very best to him.

 

 

Coming to America and the Nollywood Igwe

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Igwe Jaffe Joffe, Crown Prince Akeem and the Queen

It may be surprising, but I think that Coming to America may be having its greatest period of influence ever on African entertainment, 26 years after its release in 1988. On Nollywood, in particular. The movie, one of my personal favourite comedies,  follows the story of Akeem, crown prince of the fictional African Kingdom of  Zamunda, who comes to America to find a bride. It was Eddie Murphy at the height of his powers.

Anyway, a couple of weeks ago, I had to take an ABC Coach to go to Cotonou to see a man about a thing. A fairly short distance but thumbs up to the Federal Road Safety Commission and the Customs and Immigration Services with their 10 checkpoints each between LASU and the border, and then at the border itself, for tacking on an extra few hours. ABC filled the intervening journey time with their “in-flight” Nollywood entertainment.

Apart from seeing previews with Funke Akindele basically reprising her Jenifa character in a variety of non-Jenifa-franchise movies clearly aimed at boosting her crossover appeal (our very own Steven Seagal, if you like), there were  loads of “Igwe” films.  Kings and crown princes from various miniature kingdoms, purportedly in southeastern Nigeria, living in varying degrees of mostly anachronistic opulence. It wasn’t out of place, for instance, to see a prince or princess, who lived in a palace with marble floors and modern furniture, go for walks in the forest barefooted. Or for neighbouring kingdoms, whose Igwes both drive 2003+ Mercedes Benzes to gather up their “soldiers”, dress them in animal-skin loin-cloth, arm them with spears and shields and then “go to war”.

More than anachronisms however, were the unmistakable influences from King Jaffe Joffa of Zamunda, with servants in uniform, kings and princes with lionskin/lionhead sashes, right down to even the caps that Akeem and Semi wore. Then, there was the movie where three princesses tried to outdo each other to be chosen by the crown prince of some other kingdom, at the banquet put on by their father (more Disney Princess than Akeem, I’ll admit) and another where the monarch had people throwing flower petals on the ground for him to walk on.

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The Royal Petal Throwers

I’m probably not in Nollywood’s target demographic but I couldn’t help thinking about the differences between  Zamunda and the “kingdoms” in the Igwe movies. Zamunda was a country, so Jaffe’s wealth was more understandable and more likely than the usually unexplained wealth of the movie Igwe. Also, from my understanding of traditional monarchies in Nigeria, succession to the throne is not hereditary, at least not in the sense of passing from Father to Son to Grandson. It more often than not is determined by a council of kingmakers and, as such, crown princes are an unlikely notion. I may be wrong about this however.

I think, more than the inconsistencies, which will surely be eliminated over time, it is truly remarkable, in 2014, to still see shades of Akeem and his father in the carriage and costume of the Nollywood kings and princes. Tribute to an enduring piece of movie magic.