I’ve been asked by many of you to comment on the Tobore Ovuorie v. Ebonylife Media(EbonyLife)claim of copyright infringement. I have watched the interview Tobore granted to Pulse TV, and the pre-recorded statement Mo’Abudu (Mo) published denying any wrongdoing and that she infringed on Tobore’s copyright right in releasing EbonyLife’s new movie “Oloture.” Finally, I have read letters between their lawyers (those publicly available), and read subsequent responses by both parties as to their positions.
The following is my take. Based on all documentation and statements, including a copy of the employment letter which I have reviewed, my conclusion is that Ebonylife is most likely liable for copyright infringement of Tobore’s work. Specifically, at issue is the derivative/adaptation rights of Tobore’s 2014 investigative journalism piece, “Investigation: Inside Nigeria’s Ruthless Human Trafficking Mafia.” The discussion and analysis is quite nuanced and could flip the other way depending on further facts and documentation that may be presented, hence me saying is “most likely” liable.
Read on to find out how I arrive at my conclusion.
First, there are many legal theories and claims present in this case from contracts, employment, copyright, trademark to tort laws (this includes the right to privacy laws that also affect the discussion on life rights). However, to cut straight to the chase, I am zooming in only on employment/contract and copyright laws since that is where the parties are focused on.
THE FACTS
The reported facts are that Tobore, a journalist at the time in Nigeria, pitched an idea for an investigative piece on human trafficking to Zam Magazine, a publication based in the Netherlands. She pitched the story as a freelance journalist but by the time she completed the assignment, she had signed an employment agreement and was a full-time Senior Reporter in the editorial department of Premium Times Newspaper, Nigeria. See Employment Agreement Below.
During the course of writing her investigative piece, she went undercover for several years investigating the human trafficking story (specific to Nigeria) and in the process was unfortunately assaulted and battered (raped). In addition, she witnessed similar assault and battery on these trafficked victims, and in a few instances murder.
On January 22, 2014, Zam Magazine, with consent from Premium Times, since Tobore was under contract with the latter, published her true life experience. Premium Times republished the same story later in the same year. This is where it gets interesting. About five years later, EbonyLife, a production company whose owner has been said to be the “Oprah of Africa,” decided to create a movie on the topic of human trafficking. According to Ebonylife, in conducting research for the movie, they ran into Tobore’s story. In September 2020, Ebonylife wrapped production and released a trailer titled “Oloture”. By the first week of October 2020, “Oloture” the movie was released on Netflix. Tobore claims she received notice of the release on Netxflix, watched and believed it was a direct adaptation of her story published in 2014 in both Zam and Premium Times. She also claims the published movie triggered flashbacks and a re-traumatization of the assault and battery committed against her and others. She shared her experience of depression, medication, and ongoing therapy. She says what made it worse was that the movie was released without her consent.
Ebonylife tells a different story. Mo’ Abudu, the founder and CEO, in speaking on behalf of her company, says and provides documentation that before the trailer release in September 2020, they obtained clearance rights for the adaptation of the work as a movie from Premium Times. She also claims that Premium Times, who she argues is the sole copyright owner of the work, granted her the consent/license for “Oloture.”
Mo agrees that Tobore wrote the original story of which “Oloture” is at least, in part, based on but claims Tobore did so during the course of her employment with Premium Times, therefore Premium Times, per Mo and Premium Times’ interpretation of Nigerian copyright law, owns the work.
Mo further argues that she is not legally liable because “Oloture” is a universal story and a “work of fiction.” This is despite the fact that EbonyLife’s marketing and promotions of “Oloture” in October 2020 stated the work is “inspired by a true story.” In addition, Mo says despite the fact that they do not own Tobore anything and did not infringe on her rights, on May 30, 2019, she wrote to Tobore and pledged to give her 5% of the net proceeds of the theatrical run of the movie to Tobore’s NGO because of her commitment to help curb/eradicate human trafficking.
Mo also points out that the proceeds from “Oloture” will be used to create awareness for the tragic realities of human trafficking. In addition, Mo claims she agreed to give Tobore screen credit in Oloture “in acknowledging her contribution to the fight against human trafficking in Nigeria,” and that she fulfilled her agreement. She said Tobore signed a contract accepting the 5% net proceeds. She also says that despite the fact that the COVID pandemic derailed the theatrical release, once she concluded plans to stream “Oloture” on Netflix, she still pledged the same 5% net proceeds to Tobore. In addition, she provided a private screening of the film for Tobore to watch.
Tobore responded to Mo’s public statements and continues to insist that her copyright was infringed upon. She has also asked, through her lawyers, for:
- 5 Million U.S. dollars in compensation; and
- open and end credits that make it clear the film is largely based on her life and is an adaptation of her 2014 story in Zam Magazine and later Premium Times.
So who is right? Well, let’s look at the law.
THE LAW
Broadly speaking, Nigerian copyright law, like the U.S., grants an author of a work copyright protection where a work has originality, creativity (minimum creativity required) and is fixed in a concrete form of expression. Literary works i.e. newspaper articles like the one Tobore wrote are works eligible for copyright protection under the Nigerian Copyright Act. Further, an author of a work under the Act has both economic and moral rights.
The economic rights are the author’s exclusive right to:
- reproduce the work,
- adapt or translate it,
- distribute it to the public,
- display the work publicly, or
- perform the work publicly.
The moral right is an exclusive right that an author has to receive attribution (credit) for the work when it is used, among other things.
At issue here is the adaptation right. Under the Nigerian Copyright Act, an adaptation of a work means modifying a pre-existing work from one genre of work to another. In music, think of your samples and remixes. In film, think of this exact case we are talking about where an article is adapted as a screenplay and becomes a movie.
Based on the law above, it would seem Tobore owns the article she wrote in 2014. However, she worked for Premium Times as a full-time employee, and in fact signed an employment agreement in 2013, so how does that come into play?
Under the same Copyright Act, it specifically addresses copyright ownership in the employment context. The applicable law is section 10 of the Act. Section 10 covers the concept of who has the First Ownership of Copyright.
- Under section 10 (1), the author is the first owner of a work. However, note that this depends on the category of work. So under literary, artistic, and musical work, the rule above applies but changes when we talk about sound recordings (master), for example.
Further, there is a specific exception carved out for the media. Section 10 (3) covers the media and this is how the rule works:
- If a media house employs an employee to create literary, artistic, or musical works intended for use in the media house’s publication e.g., its magazine, newspaper, or similar periodical, then as to the copyright, the first ownership of copyright belongs to that employer, the media house.
- The only way the employer does not own that specific work created for its publication is if there is a contract stating that it does not.
- HOWEVER, (and it’s a big however) the copyright granted to the employer must relate to the publication of the work in any magazine, newspaper, or similar periodical;
- or if it is reproduced it must be reproduced with the intent that it is published for use in a newspaper, magazine, or similar periodical.
- However, if the work is to be used for anything outside of the above, then the author of the work is the first owner of the copyright in the work.
In more basic English, this means Premium Times has copyrights in Tobore’s work in a limited capacity as her employer to be used strictly in its newspaper, magazine or similar periodical. It can also grant permission to Zam Magazine, a foreign entity, to publish the work in Zam’s own newspaper, magazine or similar periodical. Any other use outside of that, it does not have the legal right to grant and should send whoever wants to use Tobore’s original story to Tobore for permission. You can read the language of the statute at the end of this article.
Well, Ms. Uduak What About the Contract Tobore Signed for Theatrical Release?
That is a fair point because even if Tobore argues that she never gave consent to Ebonylife for the use of her work, there is no denying that she later received the letter from Mo for the theatrical run, and signed an agreement to receive 5% of the net proceeds. She also received attribution in the end credit of the movie, even if it isn’t exactly in the language she may have liked it. Arguably, she had a chance to tell Mo since May 2019 how she would have wanted her credit read but she did not. She waited until October 2020 to have an issue. So, it is a fair point. But I think ultimately, the pendulum still swings to Tobore because it can easily be argued and convincingly so that the scope of the copyrights Tobore granted was limited ONLY to theatrical release. If Mo needed a more expansive right to include SVOD, VOD, etc. she needed to return and negotiate those rights with Tobore, she did not. Therefore either way you slice it, Mo Abudu needs to go back to the drawing table, renegotiate this deal and end the unnecessary PR crisis so the larger big picture of an important story can be told with the blessings of the person whose life story it is based on, even if it is loosely based.
A FINAL WORD ON CRISIS MANAGEMENT
I say this often whether discussing the music, fashion or film business and the law with you. The fact of the matter is that the industry is relatively new and a lot of these legal concepts are foreign to most creators in Nigeria. However, what we must do better is learn how to really work our issues out without making every single problem a social media headline and crisis. Both parties could have handled the PR aspect of this case much better. But then again, perhaps we won’t all get a chance to learn and grow collectively. So, I guess maybe something good can come out of it for other creatives. But ultimately, for Mo and Tobore, we cannot lose sight of the fact that our girls are suffering and the intended spirit of this story and movie was to shed light on the plight of our girls and women who are victims of sex/human trafficking.
Tobore gave a voice to our sisters. Mo is amplifying that voice. It is a unified front and both ladies can find a way to iron out this mess amicably and get back to the business at hand. We have a lot of work to do in that regard and we haven’t even scratched the surface.
AML fam, leave your thoughts and let me know what you think about my take on the issues presented.
~Ms. Uduak
First ownership of copyright.
Africamusiclaw
