Thinking legally on 'Think like a Man"

Jul 21, 2016

Under Copyright law which protects expression of works, there is what is termed as ‘Substantial similarity’.

By Dr. Anthony C.K. Kakooza

The first time I noticed the advert to the musical "Think like a Man" - currently showing at Theatre La Bonita - I thought the title was quite familiar. Indeed it was. It reminded me of Steve Harvey's book - ‘Act Like A Lady, Think Like A Man' and the movie follows up to the book which carried a similar title. This provoked me to look into the copyright infringement concerns drawn from the earlier productions.

Under Copyright law which protects expression of works, there is what is termed as ‘Substantial similarity'. In the United States of America case of Cavalier versus Random House Inc. (9th Circuit 2002), this principle was applied in determining substantial similarity of ideas and expression.

Two tests were employed in drawing out this principle: The extrinsic test focused on the similarities between the plot, themes, dialogue, mood, setting, pace, characters and sequence of events in the two works; while the intrinsic test focused on whether an ordinary reasonable audience would find the works substantially similar in the total concept and feel of the works.

Placing these two tests in line with ‘Think like A Man' showing at La Bonita, the musical show out rightly reproduces the 2012 movie adaptation of Steve Harvey's book , albeit intentionally, with the purpose of recreating it as a musical.

So, clearly, both the extrinsic and intrinsic tests applied in determining substantial similarity from the Cavalier case, portray a strong similarity in the expression of the musical show with the movie. Interestingly, it is not just the musical that copies the movie, the poster advertising the theatre show is also substantially similar to the poster that advertises the 2012 movie. In copyright law, this is what we call having the same "look and feel" as the original work.

So what's wrong with turning the Steve Harvey book of 2009 and the movie adaptation of 2012 into a musical? Well, technically, if permission has been granted to AMK productions (producers of the musical) by the copyright owners of the earlier work, then all is good. On the flip side, if this is another example of Ugandans waking up and deciding to come up with an adaptation of an existing work without consultation or approval, then the law wouldn't be on their side. Section 9 of Uganda's Copyright law is to the effect that the owner of a protected work has the exclusive right to authorize others to reproduce the work.

Copyright law is territorial in nature. This means that if a foreign owner of copyright work claims copyright infringement in Uganda, he or she can only seek court redress from within Uganda. Like I have stated, the musical show is legally in the right standing if it has the blessings of the original owners. However, Ugandans should not think that if they copy a foreign piece of work the foreign owners have no way of catching up with them.

Entertainment news spreads very fast. Copyright owners in the U.S. and other countries can exercise a couple of enforcement options: They could decide to use collecting societies in Uganda - such as the Uganda Performing Right Society or the Uganda Federation of Movie Industry - to enforce their rights in a Ugandan Court.

This is only if there is a reciprocal understanding between the Ugandan and foreign collecting societies. Alternatively, basing on the high value attached to entertainment products, it would not cost much for a foreign movie owner to come over to Uganda and sue local producers of his adapted piece of work. For now, there is nothing stopping us from watching the musical but let us think legally as well.

The writer is an expert in Intellectual Property law and currently the Dean, Faculty of Law, Uganda Christian University.

 

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