Traditional Cultural Expression ("TCE") and Traditional Knowledge ("TK") within IP are each causing a wave of uncertainty within the movie sector. TCE, also known as 'expressions of folklore', is a term used to describe artistic and cultural expressions in relation to, for example, music, dance and art. TCEs are integral to the social and cultural identities of indigenous and local communities and their protection promotes creativity, enhances cultural diversity and preserves cultural heritage. TK is identified as know-how, skills and practices that are developed over time and passed on through generations within a community.
Recently, Marvel Studios has found itself facing a possible copyright infringement action due to critically acclaimed, award winning, production 'Black Panther'. Marvel is reported to have spent a lot of money in production of Black Panther to ensure the movie encapsulates diversity and black culture. In doing so, Marvel Studios used popular Ghanaian designs, known as Kente, as part of the costumes during the movie.
Kente cloth is made by a certain type of strip-weaving which uses distinctive designs and bright colours that portray wealth and celebration within the region of Ghana. There are two ethnic groups in Ghana that produce Kente: the Asante and the Ewe.
The uproar in African communities over the Disney trade mark of a Swahili term meaning 'no worries' has caused other groups, especially in African countries, to rush to implement national regimes to protect their cultural heritage. We have previously reported on this here.
Under Ghana's Copyright Act 2005 ("the Act"), Kente Cloth is recognised as 'folklore' and thus protected from reproduction, communication to the public or adaptation and other transformation. The Ghana National Folklore Board intends to bring an action against Marvel Studios for the use of the Kente cloth without obtaining the consent or permission of the board to do so. However, the Act defines 'folklore' , widely which "includes Kente and adinkra designs, where the author of the designs is not known". This may not cover the Kente designs used in Black Panther if Marvel can identify the author of the Kente. This would take the Kente designs out of reach of the definition of folklore under the Act.
TCEs and TKs are generating significant debate in intellectual property circles, and although the fate of this claim is unknown as of yet, it is promoting the protection of cultural heritage which in turn aids in the protections of TCEs and TKs.
If you have any questions on the above, please do not hesitate to contact the team at McDaniel & Co. on 0191 281 4000 or firstname.lastname@example.org.
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