WORLD IP DAY 2018- Powering Change: Women in Innovation & Creativity

On this day, we celebrate women around the world who have made innovations and creations in their respective fields and made an impact in the society. This includes innovations in science and technology, research and development, academics and original creations in the creative industries. Intellectual Property (IP) has played a continuous role in protecting these creations and increasing their value.

A look into history takes us to Mar Dixon Kies- the first woman in U.S.A to receive a U.S patent (in 1809) for "weaving straw with silk or thread to make hats". This patent record was unfortunately destroyed in 1836 in "The Great Patent Fire". Later on, in 1845, Sarah Mather obtained a patent for inventing a "submarine telescope and lamp" which allowed maritime vessels to analyse the ocean's depths. 

In 1902, Marie Curie successfully conducted pioneering research in radioactive theory for which she received a Nobel Prize. She was also the first person to win a Nobel Prize twice and in two separate sciences- Physics (1903) and Chemistry (1911).

Others include Stephanie Kwolek who invented Kevlar fibre in 1965. The unique material is "five times stronger than steel" and is used in making musical instruments, bicycle tyres, frying pans, racing sails and bullet proof vests. In the area of research, Dr Shirley Ann Jackson made her mark as the first African-American woman to get a PhD from Massachusetts Institute of Technology (MIT). Her research on "subatomic particles" paved the way for inventions such as fibre optic cables, portable fax, touch tone telephone and solar cells.

There are certain inventions by women that were either taken or made popular by other parties. A good example is Elizabeth Magie who invented the game "Monopoly" (originally called "The Landlord Game") in 1904. The game was later appropriated and sold to the "Parker Brothers" who eventually found Magie and paid her $500 for it. Similarly, Rosalind Franklin successfully proved Watson and Crick's theory of a "double DNA helix" and took the first "x-ray diffraction picture of DNA". Based on this photograph, James Watson and Francis Crick worked out the 3-dimensional structure of DNA. They received a Nobel prize in 1962 for this, at which time Franklin had already passed.

The Landlord's Game invented by E.Maggie (THE STRONG)

Marie Curie won two Nobel Prizes (GETTY)

In celebration of World IP day, the World Intellectual Property Organisation (WIPO) has recognised some of the female inventors, creators and change agents influencing innovation and creativity around the world.

One of these women is Sandra Mjöll Jónsdóttir, the CEO of Platome Biotechnology. Through her company, she has worked extensively to reinvent the process of growing human cells by "creating life science reagents that are completely free from animal components". This is done by transforming waste blood products into "valuable products" that are exploitable by scientists all over the world. Using her company as a case study, she emphasises that IP should come first for Science and Technology companies as this is what allows companies succeed and gives them "unique competitive advantage in the market." Her message to girls and women around the world is: "Believe in yourself and stand up for yourself. Don’t let the fear of failure get in the way of your success. Your ideas are valuable and they are unique, but if you never pursue them, you will never find out their true potential."

Rhona Eastman Jack is a seamstress, entrepreneur and inventor from Trinidad and Tobago. She solved the portability problem of traditional long sewing rulers by inventing the "Udazzle fashion ruler". According to her, it is important for women to take advantage of innovation and invention to boost their world economic status and build self confidence. She calls on all girls and women to innovate: "Look around you. Invention is a solution to a problem. Let’s use our God-given talent to find innovative solutions."

Even in education, women are making breakthroughs in science in technology. For example, advanced diploma students at the Higher College of Technology in Muscat, Oman (Heba Khalifa Al-Ghafri, Faeza Abdullah Al-Khatri, and Sharifa Hamad Al-Qutati) invented a natural product from a plant extract that enhances hair regrowth. They have gone ahead to register their intellectual property for protection and further development.

Ruth Soetendorp, an academic who teaches IP Management at Bournemouth University, has researched and advocated for IP education for the past 30 years. She believes that women bring a unique perspective to the innovative process through their experiences, history and approach to life.  According to her, "Global economies need the brilliance, ingenuity, curiosity, courage, and diversity of women's contribution to ensure the success of our common future."  Also, there is a dire need for the recognition and encouragement of young women's "inquisitive creativity" in an environment that emphasises the role of IP in "translating natural talents to commercially valuable assets."

Sandra Mjöll Jónsdóttir, CEO  Platome Biotech (WIPO)

Rhona Eastman Jack invented Udazzle fashion ruler (WIPO)

Africa is of course not left out. Ivory Coast's Elisabeth Yoboue is CEO of SOLEEN, which promotes and supplies environmental and energy solutions aimed at reducing pollution. Through IP, the brand "Soleen" is known around the world as a "local change maker with global relevance. She admonishes women and girls around the world to be confident and go for success because the world is theirs.

Likewise, Senegal’s Abibatou Banda Fall runs ARADES (Association for Research Action Development and Environment in the Sahel). This is a non-profit organization which empowers women and young people with the skills to make a living from design and use of organic bread bags, thermal baskets, food processing, crafts, and more.

This list is not exhaustive. There are still many women involved in creativity and innovation in various communities around the world. In the words of Lisa Jorgenson, the Executive Director for the American Intellectual Property Law Association (AIPLA), World IP Day 2018 is about celebrating "the brilliance, ingenuity, curiosity and determination of women who have shaped our past, who are driving change in our world and influencing our future". However more needs to be done to encourage girls and women to invest their time and intellect in creation and innovation with a view to making a difference in their environment. According to WIPO, less than one-third of international patent applications filed in 2015 included female inventors. Although this is classed as an improvement from the previous figure of 17% in 1997, there is still more work to be done in closing the gender gap and eradicating the stereotype of 'male-dominated fields'. The celebration of the accomplishments of these women is not a mere contribution to the feminist rhetoric but seeks to inspire 'would-be' creators and inventors around the world to rise up and make their own contributions to solving problems in the society. Using Intellectual property as a tool, they will be able to protect these creations and maximize the benefits to themselves and to the society at large.

We leave you with the official message of Francis Gurry, Director General of WIPO and wish you all a Happy World IP Day!

LINDSAY LOHAN AND THE FIGHT TO PROTECT PUBLICITY RIGHTS

Photo: Rockstar Games

Lindsay Lohan has lost her latest appeal[1] against Take Two Interactive Software Inc., parent company of Rockstar Games - developers of Grand Theft Auto V (GTAV). This long battle dates as far back as 2014 when Lohan sued Rockstar in Manhattan, followed by an appeal when the case was thrown out of court. The actress contended that her likeness was incorporated into the game and its adverts without her consent and attributed to a game character called "Lacey Jonas" who allegedly looked and sounded like her.  See a post related to the previous case here.

The Latest ruling by the New York Court of Appeal on March 29, 2018, was unanimous.  The court found that the “artistic renderings are indistinct, satirical representations of the style, look, and persona of a modern, beach-going young woman that is not reasonably identifiable as plaintiff.” In reaching its decision, the court reviewed the dispute in the case and concluded that an animated depiction in a computer game can amount to a "portrait" as construed under New York's Statute on Publicity Rights. Nevertheless, upon applying this finding to the present case, the court decided that the character "Lacey Jonas" did not constitute a "portrait" of Lindsay Lohan.

According to the Court; "the Jonas character simply is not recognizable as plaintiff inasmuch as it merely is a generic artistic depiction of a 'twenty something' woman without any particular identifying physical characteristics. The analysis with respect to the Beach Weather and Stop and Frisk illustrations is the same. Those artistic renderings are indistinct, satirical representations of the style, look, and persona of a modern, beach-going young woman. It is undisputed that defendants did not refer to plaintiff in GTA V, did not use her name in GTA V, and did not use a photograph of her in that game. Moreover, the ambiguous representations in question are nothing more than cultural comment that is not recognizable as plaintiff and therefore is not actionable under Civil Rights Law Article 5"[2].

It's quite interesting that the case has gone this far, especially because there is no use of the actual photograph or name of the actress. Even without the preexisting contention, an ordinary man may not determine a connection between "Lacey Jonas" and Lohan because of the similarity of the personality of the character to the stereotype of most young divas. Lohan has also previously unsuccessfully contested the mention of her name in Pitbull's song- Give me Everything Tonight with the lyric "I got it locked up like Lindsay Lohan". However, she was successful in securing a settlement for the mention of "milkaholic Lindsay" in a 2010 Super Bowl E-trade Commercial. 

While one must applaud Lohan for being persistent in protecting her name and image, one must also insist on a limit to prevent a floodgate of litigation in cases of computer generated or other images deemed to look or sound like every celebrity. If there is no significant or clearly ascertainable similarity or any incorporation of an actual image, is it justifiable to rule in favour of an aggrieved party in publicity rights cases? The courts can help by affirming a clear threshold that must be reached before an animated depiction or similar portrayal can constitute a "portrait" in such cases.

We have previously distinguished Lohan's case from Gwen Stefani  and No doubt's case here; the latter being successful due to the California State Appeals Court's determination that Activision's Band Hero game and the ability of users to unlock special features to manipulate the digital avatars of the No Doubt band members were not sufficiently transformative as they were "exact depictions of No Doubt's members doing exactly what they do as celebrities".

In contrast, the California Court of Appeal has reached a final decision in de Havilland v Feud, where renowned actress, Olivia de Havilland, contested her portrayal in the television docudrama- "Feud" produced by Ryan Murphy, without her consent. The court overturned the trial court's finding that this realistic portrayal was not "transformative" enough and that no defense under the First Amendment could be maintained against Havilland's right of publicity claim under California Law. The appellate court held that the portrayal, which includes interview appearances, was in fact "transformative" and that the right of publicity "could not be used to control a celebrity’s image by censoring disagreeable portrayals consistent with First Amendment and free speech considerations."- via the TCMA.  

Additionally, her claim for damages from her alleged portrayal (as a gossip who uses abusive language) was not upheld since she had given similar interviews over the years. Though there may still be a further appeal, the finding helps to further draw a line in the increasingly popular cases of publicity rights claims.

Unfortunately, plaintiffs may continue to feel dissatisfied with the recent outcomes of publicity right cases based on the belief that their likeness is being exploited for commercial purposes. Lohan and others may remain resolute on defending their rights, but continuous appeals in cases where the depiction in question is not clearly similar to the image or likeness of the plaintiffs only seem to promote the contentious material even more and make more profits for the defendants. For instance, "More than 275 million copies of the Grand Theft Auto video game have been sold since its launch in September 2013" and it "topped the UK games sales charts for the 15th time earlier this month"- via BBC News. Meanwhile, Lohan's career doesn't seem to have experienced a similar rise. It would be interesting to see how future cases in this area unfold and how more rulings influence the legal regime in other countries.

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[1] Lohan v Take-Two Interactive Software, Inc., 2018 NY Slip Op 02208, 2018 WL 1524714 (N.Y. App. Ct. March 29, 2018)

[2] Per Judge Eugene Fahey

ANNOUNCING WORLD IP DAY 2017

Photo: World IP Day

On April 26th every year, the World IP day is celebrated with the purpose of "learning the role that intellectual property rights (patents, trademarks, industrial designs, copyright) play in encouraging innovation and creativity."

According to the World Intellectual Property Organisation (WIPO), this year's focus is exploring "how innovation is making our lives healthier, safer, and more comfortable, turning problems into progress." In addition, the organisation highlighted the importance of looking "at how the intellectual property system supports innovation by attracting investment, rewarding creators, encouraging them to develop their ideas, and ensuring that their new knowledge is freely available so that tomorrow’s innovators can build on today’s new technology."

It is the creativity and innovation displayed by people around the world that tackles and solves global issues such as poverty, food availability, health and even climate change. The protection of these innovations by intellectual property rights creates an atmosphere where creativity can thrive and an incentive to encourage more innovation. It also ensures knowledge is shared by attracting investments and inter-territorial cooperation. 

We can all identify at least one way that innovation has changed our lives. Problems are solved by people who think long and hard about creating a solution. From the chair we sit on, to our laptops, mobile phones, light bulbs, cars etc. which are constantly improved on by new technologies; innovation is something that influences everyone around the world. However, depending on location and means, the levels of access to these technologies may vary.

WIPO is asking you to consider the following questions:

• Which innovation has most improved your life?
• What more can be done to make sure new technologies reach the people who need them? 
• What do you think should be the priorities for future innovation?

Join in this discussion by sharing the publicity materials  below on your social media handles using the tag: #worldipday

 

 For more information, see WIPO Website and World IP Day Facebook page.

LINDSAY LOHAN'S GRAND-THEFT-AUTO LOSS AND IMAGE RIGHTS

 

Image: Livemans.com

Earlier this month, the New York County Supreme Court dismissed a lawsuit by Lindsay Lohan challenging the use of her image/ likeness in a video game by the producers of “Grand Theft Auto”.  The American actress had accused Take-Two Interactive Software Inc., (owners of the game developers Rockstar Games) of violating her privacy rights under New York Law by basing the character 'Lacey Jonas' in GTA V (the game) on her image from a photograph of her. It was alleged that the character appropriated her physical features: 'clothing', 'shoulder-length blond hair', 'voice' and 'signature peace pose' from the said picture. Although most people playing the game would have probably assumed the character was a general parody of young Hollywood divas, Lohan’s lawyers argued otherwise. 

Nevertheless, a panel of five judges in the Manhattan Appellate Division dismissed the case on 1 September 2016, ruling that the company did not use her actual “name, portrait or picture” and therefore did not violate her right to privacy. The judges also dismissed the actress' claim that her image was used for the game's advertising because the game’s character was used, and not an actual photograph of the actress. The Judges further stated: "This video game’s unique story, characters, dialogue, and environment, combined with the player’s ability to choose how to proceed in the game, render it a work of fiction and satire.” (via Evening Standard)

 

Meanwhile, the company reportedly earned $1 billion in its first three days and has shipped more than 60 million copies to become one of the best-selling video games. In a highly digital world, where celebrities invest so much into building their image, it is only fair for the law to provide the machinery for protection against unlawful use or misappropriation of such image to endorse brands or boost sales of a product or service. The right of Publicity (also called Image Rights or Privacy in some jurisdictions) exists to provide this. However, just as with every law, there are requirements that must be met and there are also exceptions.

The ruling in the Lohan's case can be distinguished from the ruling of the court in the Gwen Stefani and No doubt case against Activision which was settled in 2012. The band had contended that Activision's Band Hero game featured their 'unauthorized likenesses in digital avatar form.' There was also the possibility to unlock special features allowing the player to manipulate the avatar of Gwen Stefani and her band mates and get them to perform songs. Although No doubt had executed a contract with Activision, the band claimed that the company had exceeded the rights granted therein, by featuring the band performing 60 songs they had never performed in reality and had not consented to perform in the game. Activision counterclaimed that No doubt was actually in breach of contract and argued that its use of the band's likenesses was fair because the game was 'transformative'.  The band disagreed with this, stating that the 'motion-captured recreations' were 'too realistic' to be transformative.  At first, the court agreed with Activision and affirmatively answered the question whether contractual disputes over video games implicated the First Amendment. However, this position was reversed by the California State Appeals Court, which held that while the video games were protected by Free Speech, the First Amendment did not operate to bar a right of publicity in this case. The Court further stated that:

"... That the avatars can be manipulated to perform at fanciful venues including outer space or to sing songs the real band would object to singing, or that the avatars appear in the context of a video game that contains many other creative elements, does not transform the avatars into anything other than exact depictions of No Doubt's members doing exactly what they do as celebrities." (via Hollywood Reporter)

Although it has been argued by many that the No doubt Case was more of one of breach of contract, the decision of the court and determination of the features and effects of transformative works are applicable to Publicity Rights cases. What seems to be clear in right of publicity cases is that the use of a person's image may only be acceptable where the likeness used in the game or devise is altered enough to qualify as an entirely new creation i.e. it must be sufficiently transformative. This test was adopted by 9th U.S. Circuit Court of Appeals from the State Supreme Court in deciding misappropriation of image and likeness cases.

While in several countries, such as Nigeria, there is no clear Right of Publicity, an aggrieved celebrity may still be able to make a case in passing off where their image or likeness is used to promote goods and services; as well as trademark infringement, where celebrities have taken the extra-step of registering their names as trademarks in several classes of goods and services. Actions under copyright law may also arise where pictures owned by celebrities are unlawfully reproduced, published or communicated to the public on or unapproved mediums. However, actions under these areas of law are subject to several requirements for the name, image or likeness in question to receive protection and to be successful in an action for infringement.  Nevertheless, it is advisable for developers of games to take into cognisance these rights and to desist from including the real names, portraits or pictures of celebrities in their games. While people may think that the absence of publicity laws in their country of operation may give room to include whatsoever they wish, it is still advisable to use distinct names, transformative cartoons or images that may qualify as new works such as in the Lohan's case. 

Therefore, there is a dire need to review the current laws to ensure they take into consideration the advancements of technology and new media and provide for actions not contemplated by the Copyright or Trademarks Acts. In 2015, Nigeria enacted the Cybercrime Act[1] to address the issue of Cyber security as well as a draft copyright bill[2] which takes into cognisance some digital realities of the information age. However, there is still room for improvement. The entertainment industry in Nigeria is growing every day, especially as regards merchandising, ambassadorship and sponsorship deals. It will be good for there to be a specific regime that protects the rights of celebrities to the use of their images in various media and forms. 

 © September, 2016 by LAW Afolabi

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[1] The Cybercrime Act <http://www.lawyard.ng/wp-content/uploads/2015/10/CYBERCRIMEACT-2015.pdf>

[2] Draft Copyright Bill <http://graduatedresponse.org/new/wp-content/uploads/2016/02/DRAFT_COPYRIGHT_BILL_NOVEMBER-_2015.pdf>

 

COSON'S REQUEST FOR THE LAUNCH OF A CREATIVE & INTELLECTUAL PROPERTY ECONOMY IN NIGERIA FROM PRESIDENT BUHARI: Implications for Nigeria & Africa

The Copyright Society of Nigeria (COSON) held the NO MUSIC DAY on September 1, 2016, which was reported to be a success. According to COSON, many TV stations complied with the request to desist from airing any music between the hours of 8am and 10am on the said date, and proceeded to broadcast interviews, documentaries, debates and discussions on the rights of creative people and the impact that Nigeria’s creative industries can make to the revival of the dwindling national economy'. The Print Media also complied, with 'special features on issues dealing with creativity and innovation in the national economy'. Musicians, intellectual property lawyers and COSON's top representatives spoke on several issues relating to the theme and importance of the respect for copyright and intellectual property in ensuring the progress of the music industry. A 'command center' was also set up at COSON Headquarters, where the network of activities was being coordinated and the Chairman of COSON, Chief Tony Okoroji, had several live radio and television interviews on the telephone, with broadcast stations.

Chief Okoroji stated that, “Our key objective has been to engage the Nigerian people and the various governments on the potential contributions of Nigerian creativity to the development of the Nigerian nation and the necessity to fully deploy the substantial comparative advantage which our nation possesses in this area, so as to provide hundreds of thousands of well-paying jobs to the teeming masses of Nigerian youth ... ”

The Organisation thereafter held an open house event at COSON Headquarters which was attended by artistes, stakeholders in the industry and media representatives. At the event, COSON stated that 'this period of economic recession in Nigeria should provide important soul searching for the Nigerian nation', as the nation's dependence on oil and gas is in the past with a new era necessitating the building of the economy on the creative ingenuity of the people is beckoning. 

Delivering the 2016 Official Address on the State of the Nigerian Music Industry, Chief Tony Okoroji emphasised that this creative ingenuity of the Nigerian people can be seen in the popularity and wide reach of Nigerian music, movies, literature, fashion, programming, and similar creative products all around the world. Thus, making this an area in which Nigeria has significant comparative advantage.

According to Chief Okoroji, “We believe that President Muhammadu Buhari can give a marching order to both his Vice President, Prof Yemi Osinbajo who has the training and the intellect to fully grasp the issues and his Minister of Foreign Affairs, Mr. Geoffrey Onyeama who for several years was a respected Director at the World intellectual Property Organization (WIPO), to create real change in Nigeria. These gentlemen have the ability to kick start an intellectual property and creative revolution in our country which can change the story of Nigeria forever. Then we can inspire our citizens to create and invent things of value with the assurance that every work of creativity and invention will be protected by the nation and every creator and inventor can enjoy the fruits of his or her labour. We will then have taken a major step in assuring domestic and international investors that Nigeria is no longer a nation of ‘monkey dey work, baboon dey chop’ and that we are ready for the knowledge and digital economy”. He also stated that stakeholders in the creative industry have continuously requested for a proper audience with the government towards securing a knowledge and creatively driven economic future for the nation. COSON hopes that a positive response to this request from the government will be received promptly, so that the important task ahead can be tackled as soon as possible.

This approach by COSON is commended, as the need for investing in and securing the economic future of Nigeria is quite important. It requires a lot more diversity, into other rewarding sectors including Science and Technology, Agriculture, Intellectual Property and Entertainment. 

The President of the United States of America, President Obama previously stated that' if we are to win the future and be successful in an increasingly competitive international market, the United States of America must innovate.' The U.S. Commerce Department's  report titled "Intellectual Property and the U.S. Economy: Industries in Focus" dated April 11, 2012,  found that intellectual property (IP)-intensive industries support at least 40 million jobs and contribute more than $5 trillion dollars (34.8 percent) to the U.S. gross domestic product (GDP). According to the report, Innovation requires the generation of new ideas and putting them into commercial practice which is a key to securing a nation's economic growth. This is because once innovation is protected by a sound IP protection regime; it will create new jobs at every stage of the production process, grow imports, benefit both upstream and downstream sectors of the economy and promote innovative, open and competitive markets. 

Therefore, if Nigeria and other African countries are to succeed in developing their economies, there is the need to invest in a strong IP regime which requires amendment of current legislation on copyright, trademarks, patent and deigns, and enactment of new laws on new media, data protection and privacy, as well as image rights. There is also the need to generate new products and industries, as well as investing in scientific discoveries and technological innovation, in Universities and the nation at large. It is hoped that that the government of Nigeria and other African nations will respond promptly and positively to this need.

© September, 2016 by Lola Agbaje-Williams