Intersection of Intellectual Property and the Arts Explored

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UKZN InQubate, under the Entrepreneurship Skills Programme (ENSPIRE), hosted an event aimed at exploring the crucial intersection of intellectual property (IP) and the Arts.

Under the banner of ENSPIRE’d Talks, the IP Meets Art event was part of a series of conversations held to equip the University’s students with the entrepreneurial skills needed to run sustainable and viable businesses.

The event brought together various stakeholders and experienced industry professionals to discuss the importance of exploiting intellectual property within the Arts as a protective tool. Issues discussed included IP laws, practical tools and strategies for IP management, brand management and its significance in building and protecting artistic identities, and the emerging IP challenges and trends within the Arts sector.

Facilitated by Mr Ntuthuko Ndebele (aka Mthuthu), InQubate’s Student Entrepreneurship Coordinator and African folk musician, the event featured panel speakers Ms Vanessa van Coppenhagen, co-head of Spoor & Fisher’s transactional/commercial IP department; Mr Sibusiso Mashiloane, UKZN Music lecturer and award-winning jazz artist; Mr Thando Nyameni, Managing Director of the KwaZulu-Natal United Music Industry Association (KUMISA); Zakwe, a South African rapper, songwriter, music producer and event coordinator; and Mr Luyanda Zindela, a South African visual artist.

Van Coppenhagen highlighted the various artistic works that could be protected by copyright law, adding how performances fall under performers’ protection, while designs, branding, distinctive symbols and logos are protected by trademarks, new inventive ideas fall under patents, and heritage or cultural foundations dedicated to the preservation of art, culture or legacies are protected by the law of Non-Profit Organisations and Trusts.

She noted how IP could be managed through due diligence, portfolio management and licensing and assignment agreements, and how litigation could be used as a way to enforce IP protection.

Mashiloane spoke on the importance of claiming time, efforts and IP when collaborating with big artists through split agreements (a written document that identifies all contributors to a song as well as their ownership percentage). He acknowledged his manager for always reminding him of the business aspect of the music ‘because as artists that’s something we often seem to forget.’

Nyameni focused on the bundle of rights when reviewing copyright law and highlighted how it could be divided into two categories of composition and sound. He said sound recording rights protected the recording of the song and used organisations like the South African Music Performance Rights Association (SAMPRA) and the Independent Music Performance Rights Association (IMPRA) to collect revenue on behalf of the owners and or performers; while composition rights protected the music and lyrics of a song using organisations such as the Southern African Music Rights Organisation (SAMRO) and the Composers, Authors and Publishers Association (CAPASSO) to manage revenue collection and cover performing, mechanical and digital rights.

Nyameni noted the importance of music publishers in sourcing opportunities for copyright owners such as sync deals which involve licensing music for use in commercials and films, among others, with a monetary value involved.

Zakwe reflected on his musical journey and his recording label woes with Native Rhythms where he says he signed a 360 deal (in which the label owned everything) and had his first album hit gold status; and Mabala Noise where he also didn’t own his third album that hit gold status. He said he takes every opportunity he gets to educate up-and-coming artists on the pros and cons of recording deals. Having just landed from the United States, where he was part of a jam session that had split agreement sheets available at hand, he noted how the US takes music seriously while South Africans are still largely driven by passion.

Zindela commented on the importance of approaching a craft as a legitimate business. Explaining why artwork was so expensive, he said visual artists understood that they could only make money from their craft once off and that money was still needed to pay the art gallery for exhibiting, cover the cost of the materials used and leave the artist with enough money to live off of and create more art. Zindela said artists were constantly working to get to a brand level where they could negotiate a higher price.

In their closing remarks, van Coppenhagen urged students to value the administration involved in IP protection for the Arts to avoid getting “ripped off”. Zakwe encouraged students to familiarise themselves with KUMISA as an organisation that helped him own the rights to his third album after his contract was bridged by Mabala Noise. Zindela encouraged law and arts students to build relationships that would be useful for future collaborations and learn valuable lessons from the event, while Nyameni spurred artists to understand the power behind IP knowledge in getting more money for their craft.

Nyameni identified four important pointers for navigating recording label deals: ‘Understand the terms and terminology used in the contract; know which territory the contract covers; review assigning and licensing deals - always leaning more towards licensing because with assigning the record label always owns the work; and once in the contract make sure all parties meet their obligations.’

Words: Hlengiwe Khwela

Photograph: Antz Trade Solutions