Intellectual Property (IP) drives the creative industry. It’s an industry that is not based on tangible products, but intangible products, and thus must have a well-crafted and deployed IP protection strategies. Because the products are intangible, it becomes difficult at times to offer protections for these creatives, and thus, they are extremely prone to theft and copyin

The reason for discussing this topic now, is the increased complaints around concept theft or copyright violations, most especially with the emergence of AIs. Currently, there is a trending movie on one of the leading global streaming service that a friend reported to me that it was his concept that was developed into the movie that was eventually acquired as an original. This person alleged that he discussed the concept with a friend, who eventually passed it on to the producers and directors of the movie. I asked if he had any correspondence on paper or recorded voice conversations, or any form of evidence that could collaborate his claim. There was none! He claimed everything took place over the phone, and he was dam sure, because the movie has a sequel. However, after meeting with the person he discussed the concept with, she simply denied passing on the concept to the producer/director. These are common issues we face in the black creative space.

The protection of IP cannot be over or under emphasized. The essence of IP protection is to guard against unauthorised use of our ideas, expressions, or even inventions, which could even prevent the owner from maximizing benefit from his/her creation. Therefore, we must take very seriously the concept of IP protection.

Let’s do a brief breakdown of IP protections available, namely:

1. Copyright: IP protection through copyright is largely applicable to the creative (entertainment) industry, because it’s all about protection of creative expressions against copy-cats. It covers music, writings, publications, books, screenplay, software/technology, etc. It does not cover ideas/inventions, which is covered by patent law. It’s the protection of original literary, artistic, or creative works, and grants the original copyright holder the exclusive right to reproduce, distribute, perform, and display his/her work. This copyright protection is obtained by registering your creative original works with the Copyright Office, in some cases you could still get copyright protection without formal registration. This protects your IP against theft or illegal duplication or performance. If the gentleman alleging the theft of his movie concept above had registered his creation, or even document his conversation with this lady, he would have had some claim against the streaming service and all the culprits. In fact, unpublished works have one of the strongest protection under copyright law.

2. Trademark: Trademark (TM) is the protection of your brand names, logos, slogans, and other marks that easily or readily identify your company or brand. The essence is to offer protection for your brand, thus preventing identity theft or illegal use of your brand or duplications of your products, thereby creating confusion in the marketplace, and/or giving your brand “bad name”. It also helps prevent unfair competition, when some companies or persons want to reap from where they have not sown. There are two forms of protection in TM, direct registration of your name/mark with your country’s regulatory authorities, e.g. USPTO, CIPC in South Africa, etc. the other form of protection is derived from the common law, which arises from the general awareness of your brand, and its uniqueness. Thus, even if Coke is not formally registered in any country, it’s a well-known brand that enjoys protection under common law, and no one can just use it without authorization. TM protection is different from copyright protection. Whilst copyright protects the content (artistic creative) of a magazine, newspaper, journal, music, or movie, TM protects the name (title) of that magazine, newspaper, journal, or musician. For example, in 2008, I had a nasty experience that I had to overcome, which was years before I went to law school in South Africa. Weeks after I started a lifestyle weekly newspaper titled “JoziWeekly” in South Africa, another gentleman launched his publication with the same title. I had earlier registered my publication with the National Library of South Africa, thinking that I was protected. It was until this guy launched his version of “JoziWeekly” that I realized I did not have any protection against another publication with the same name. However, only the specific content of my publication that was protected. What saved my publication was the common law position of the first to be known in that market, combined with my earlier filing at the CIPC, the body responsible for IP registration in South Africa, before this guy filed his TM application. If you need more advice on this, please reach out.

3. Patent: Patent protects original ideas/inventions against illegal use and duplications. Ideas or inventions, though unique and novel, are different from artistic expressions protected by copyright law. Patent’s protection provides the exclusive rights to your invention for a certain period of time, allowing you to prevent others from making, using, or selling it without your permission. Once you can establish a claim over an invention, it’s time to immediately patent the idea by filing a patent application, with full description of the invention, teaching how to make or use the invention, and defining the scope of the patent protection. This protects your novel idea from illegal production, use, and sales for about twenty (20) years.

4. Trade Secrets: Whilst patents protects a novel idea a through registration process, which includes the public disclosure of the inventive properties, trade secrets are protected by its secret nature. Every viable information, mixtures, inventions, formulas, processes, key strategies can be protected against misappropriation. This protection can last forever, whilst patent protection is only for 20 years. The most commonly known trade secret today is Coca- Cola. This Coca-Cola mixture is protected by trade secret, has lasted for decades. If it was patented, it would not have lasted for that long, and we would have had another drink with the same taste as Coca-Cola by now. However, whilst patent protects against reverse engineering, trade secrets does not. Therefore, a Company must critically weigh the options before decide which way to protect its invention considering several factors unique to it and its invention. Speak to your lawyer! Quick observation in my Coca-Cola, which is protected by trade secret. However, the coke brand is protected by TM, and even copyright in some cases. We now see how the various elements of IP can be deployed to protect your company, brand and idea.

How do you protect your IPs? Protecting your IP starts from the moment you conceived that IP. This is possible when black creators are conscious that their creation is precious and must be guided jealously. This consciousness places an obligation on us as black creators to protect what we are birthing, with the ultimate objective of benefiting ourselves primarily from our creatives, and humanity as a whole.

With consciousness comes with association. Surround yourself with professionals that can help give birth to the IP. This starts with a lawyer, who will advise you on steps to take to protect your IP. DO NOT GO AND SPEAK TO YOUR COLLEAGUES ABOUT YOUR IDEA BEFORE SPEAKING TO A LAWYER. Its too dangerous. Ensure you start taking the right steps in IP protection from moment you receive the concept, and you are convinced about it. You must spend time in putting together the concept in your mind, notes and proper documentation, and then approach a lawyer, not even a “mentor”, or a friend. I have heard of “mentors” stealing their mentee’s concepts.

Once you have effectively protected your IP, then you could circumspectly start putting your team together. Ensure you document every engagement you have with your team or anyone about your project. Documentation could include voice recordings, email correspondence, etc. Sign contracts, NDAs, etc., and not just give away your IP without adequately ensuring that you have protection, otherwise, your God given IP is gone!!!