Attorneys offer help to protect intellectual property rights

Friday, May 25, 2018

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Some vanguards of intellectual property rights in Jamaica have pledged to provide assistance to artistes who have been subjected to copyright infringement.

The pledges were made by attorneys Tana'ania Small Davis and Mikhail Ferguson of Livingston, Alexander and Levy, during a May 17 luncheon organised by New York-based Jamaican Diaspora leader Irwine Clare in association with the Jamaica National Group to discuss intellectual property rights.

The discussion was framed against the background of a US$300-million copyright infringement lawsuit filed by Jamaican dancehall artiste Flourgon against US pop singer Miley Cyrus.

Praising Flourgon's legal team, led by famous US trial lawyer Willie Gary, and Jamaican-born attorney Stephen Drummond, Small Davis called for the establishment of a local organisation to which artistes may go for legal advice concerning intellectual property theft and infringements.

“Because it comes back to what is a very topical thing for us, and that is the protection of Jamaica as a brand, and reggae as a brand,” she said.

Supporting her, Ferguson underscored that part of the problem lies in the fact that Jamaicans undervalue themselves, pointing to many infringement cases that he has dealt with in which foreigners have copied Jamaican products and sell them at higher values.

“Jamaicans don't know their self-worth,” he said. “And because of that we sell ourselves short.”

Both attorneys, who are intellectual property specialists, pledged to provide some assistance at no charge to victimised artistes.

They were responding to an appeal by Lilyclaire Bellamy, deputy director and legal counsel at the Jamaica Intellectual Property Office (JIPO), for partnership in the industry to undertake public education about intellectual property rights rather than leaving the task to the Government.

“Unfortunately, we tend to believe what people tell us, so we still have a high level of trust. So you go to someone and they tell you 'yes, you can do this', and they will give you X, and they give you something to sign,” Bellamy said.

However, she pointed out that in many cases, artistes sign contracts without a lawyer or an understanding of the law. As a result, they end up signing away their rights to their intellectual property.

“Persons tend to believe that attorneys are only thinking about the money that they will earn. They don't recognise that artistes need to earn, so that we can earn, hence we want you to earn,” Bellamy emphasised.

The JIPO deputy director said new artistes are in many instances the victims after being promised of cash in return for their lyrics, arrangement, or any form of creative production, which is valued far more.

“You're an up-and-coming artiste, and you have nothing. Somebody says to you that they are giving you US$5,000, you will say: 'Wow I've hit the jackpot' not understanding that they are going to earn US$500 million from your US$5,000.”

However, she suggested that some instances of intellectual property theft or infringement may be going unreported because artistes, who believe they should know better, may not want to acknowledge that they have been conned.

“Not every respectable person in society is a respectable person,” Bellamy said, warning artistes to be more vigilant.

Reminiscing about his days in the recording industry, as a member of the famed reggae group Third World, chairman of the Jamaica Reggae Industry Association Ibo Cooper, who is also a senior lecturer at Edna Manley College of the Visual and Performing Arts, gave credence to her comments, pointing out that many artistes have been denied their due by well-known executives.

“Some of these persons have received honours when Heroes' Day comes and I look and say on the positive, 'maybe they have done a lot when you look at it', but how much did they pocket in the interim? You'd be surprised,” Cooper said. “They are considered prominent businessmen they are considered respectable citizens.

“We are seeing large properties being built on the backs of people who are now begging on the streets,” he said, using a member of the rock steady group, the Kingstonians, as an example of artistes now destitute after being unable to earn from their music.

Veteran reggae entertainer Tony Rebel noted that many artistes don't stop to think about the business side, and that poses a problem for them.

“Most artistes, when they are creating, they just think about creating things and want to put it out and they are eager to do so and they don't take the responsibility to get into the business aspect of it,” he acknowledged, highlighting that many times artistes are encouraged by their managers to separate themselves from the business side of the industry. However, he said, that is changing.

“A lot of our songs have been sampled all over the world by different genres and different artistes and we are just happy for that because it gives us more popularity; and the understanding is not established that they can really make money from it. But the new generation that is coming, they are not doing that,” Tony Rebel explained.

In March this year, Flourgon, whose real name is Michael May, filed the lawsuit against Cyrus in the US District Court, Manhattan, New York.

Essentially, the deejay is alleging that Cyrus's 2013 hit song We Can't Stop closely resembles his 1988 hit We Run Things.

Flourgon accused Cyrus and her label RCA Records, owned by Sony Corporation, of misappropriating his material, including the lyrics “We run things, things no run we”, which she sings as “We run things, things don't run we”.

He said that last November he won “formal copyright protection” from the US Copyright Office for all musical arrangements in We Run Things.

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