By Stephanie Wanga**

Image Credit: www.garritytraina.com
Beyoncé has had quite the history of being sued for infringing a number of artists’ copyright. Her most recent work, Lemonade is now in question.The trailer Beyoncé released for her visual album Lemonade recently got her into some legal trouble. The plaintiff in the suit against her, Matthew Fulks, alleges that the trailer was copied without permission from a short film calledPalinoia, and has theorized on how Beyoncé’s team might have had access to Palinoia.Palinoia is a “short film depicting the pain of a tumultuous relationship”—and this could also be said of Lemonade. What exactly was copied? Fulks claims that the aesthetic decisions taken especially show the similarity.

These include the elements chosen in Palinoiaand how these were coordinated. He goes on to list 9 visual similarities. These include “graffiti and persons with heads down”, “red persons with eyes obscured”, “parking garage”, “stairwell”, “black and white eyes”, “title card screens”, “the grass scene”, “feet on the street”, “side-lit ominous figures”. These thus apparently created a substantially similar concept, mood (‘heavy, dark, angst-laden’), setting (‘similar environments’), pace (‘progress in a rapid procession of short scenes of montage, interspersed with notable intermittent pauses through exaggeratedly slow scenes’) and feel to that of Palinoia. In the suit filed against Beyoncé, it is noted that Palinoia involves the recitation of a poem used as a voiceover against a distinctive audio soundtrack; this too happens in Lemonade.
The photos demonstrating the claims in the complaint and so in the public domain, are labelled as shown below:
Similarity 1: “Graffiti and Persons with Head Down”
Similarity 2: “Red Persons with Eyes Obscured”
Similarity 3: “Parking Garage”
Similarity 4: “Stairwell”
Similarity 5: “Black and White Eyes”
Similarity 6: “Title Card Screens”
Similarity 7: “The Grass Scene”
Similarity 8: “Feet on the Street”
Similarity 9: “Side-lit ominous figures”
How would such a case fare in the Kenyan copyright scene? How far does our law go to protect things such as the mood, the feel, the aesthetic decisions in a work?
We would have to begin at the beginning by ascertaining that the work is even copyrightable in the first place and that the person alleging infringement owns the copyright. The requirements for a work to be subject to copyright include that the work be, under Section 22 of the Copyright Act, either a literary work, musical work, artistic work, audio-visual work, sound recording or broadcast. For literary, musical and artistic works and broadcasts, there are additional provisions to qualify the work/broadcast as eligible for copyright. Further, the work needs to be original and fixed (in tangible form).
Our subject matter would fall under audio-visual work. An audio-visual work, as per Section 2 of the Copyright Act, means a fixation in any physical medium of images, either synchronised with or without sound, from which a moving picture may by any means be reproduced and includes videotapes and videogames but does not include a broadcast. Under Section 23 of the Copyright Act, we see that ownership in Kenya is established on the basis of either nationality or residence. The owner of copyright at the first instance is the author (qualified by Section 31). An author of an audio visual work in the Copyright Act is the person by whom the arrangements for the making of the film were made.
Copyright in Kenya, under Section 26, is the exclusive right to control the doing in Kenya of acts such as the reproduction, translation/adaptation, distribution to the public, communication to the public and broadcasting of the whole work or a substantial part thereof. There are two kinds of rights when it comes to copyright: moral and economic rights. The economic rights are those that I have just mentioned (reproduction, distribution, adaptation), whereas moral rights would include attribution and a right against defacement of the work.
This might then—and especially in our case—beg the question, reproduction of what? Adaptation of what? Distribution of what? Here we introduce the idea-expression dichotomy when it comes to copyright. Copyright only protects the expression of the ideas, and not the ideas themselves. For example, in Faulu Kenya Deposit Taking Microfinance Limited v Safaricom Limited, the main problem lay in the intellectual property right being asserted. Copyright (which was the right asserted) would not protect the idea. The copyright was in the written version of the idea. Ideas, for example scientific ones, might find protection in other fields of intellectual property such as patent.
In such a case as this one of Palinoia and Lemonade, what exactly is being contested? The idea or the expression of it? What has been reproduced/adapted/distributed—the idea or the expression of it? In determining questions of infringement, covered under Section 35 of our Copyright Act, we need to, as we said earlier, establish that there is copyright, and over and above that, that there is an infringement, and if there is indeed an infringement, we would then need to examine whether the situation falls under the exceptions under which infringement is allowed, otherwise known as fair dealing.
The crux of the matter then is whether there has been infringement, and this is where our question comes up—what has been reproduced—the idea or the expression of it? Reproduction, as per Section 2 of our Copyright Act, means the making of one or more copies of a work in any material form and includes any permanent or temporary storage of such work in electronic or any other form. We do not define adaptation in our Act, but WIPO’s Understanding Copyright and Related Rightsdefines adaptation as the modification of a work to create another work. They give the example of adapting a novel to make a film, or adapting a textbook intended for use by university students to be suitable for use by those at a lower level. The problem in such a case would lie either in the fact that the work has been reproduced or adapted.
On the one hand (and the more convincing analysis, in my opinion), both the notions of reproduction and adaptation envision a substantial, recognizable, even obvious similarity between the original work and the copied work, and this similarity is not found in the abstract elements of the work but rather in the more “tangible” aspects of the work. The same “feel” or “mood” in different novels, for example, would not to me raise the suspicion of copyright infringement as much as it would the simple thought of “these writers are similar”—merely similar; not that this one has robbed the other.
On the other hand, if I read a book about Jill Mwambua killing her cat Rosie Pokes in a town called Bamburaville, and then watched a movie of Jill Mwambua killing her cat Rosie Pokes in a town called Bamburaville, I would immediately say that this is the movie adaptation of the book I read, without doubt. The strongest pointers of infringement are in the exactness of the similarity—found in the more visible, tangible aspects of the work, rather than the “feel” or “mood” which are more fickle and brought about by a vast number of elements that could make similarities purely coincidental. Reproduction in our law is pure copying. Copying confuses one as to which one is the original and which one is the copy. Adaptation would simply be changing the medium in which a work appears to another, but a lot more than merely shifting medium seems to have happened in this situation.Furthermore, aesthetic decisions are pure ideas. Per Kenyan law—with this line of thinking, the case would fail.
Perhaps hope for such a case would come about with an expanded conception of “adaptation”. Person A put X + X + X together in order to give a particular feel; convey a particular message to his audience. Person B, having access to Person A’s work, may be shown to have been inspired to adapt Person A’s work to suit their work and what Person B’s audience expects of her. So Person B puts together X + X + Y + Y + Y. Whether X + X + Y + Y + Y is an infringement of X + X + X in as far as there exists X + X in X + X + Y + Y + Y is a matter of very interesting argument.
It would, to me, be bad precedent in the creative economy to prevent ideas from being borrowed, which is essentially what the latter argument would amount to. Creativity is founded upon building what already exists. If copyright covered creative ideas as well, the latter argument would then stand a chance. However, covering creative ideas with legal protection would be overreaching and would stifle the creative industry as essentially everything is built on creative ideas.
**Stephanie Wanga is a Bachelor of Laws (LL.B.) student at Strathmore Law School.