Commentary: Temi Coker versus Imaara Mall

On March 2nd, 2022, a US-based artist, Temi Coker went on Twitter to narrate how Nairobi’s newest mall, the Imaara Mall, had infringed on his work. In his thread, he mentions that the colorful images clearly visible on the mall’s exterior were sourced from his Behance Project. More specifically, the artist asserts that the way in which Imaara placed its shapes on the images bore an uncanny resemblance to his own work.

Generally, Infringement claims like Temi Coker’s are becoming a growing phenomenon as creatives double down on protecting their works in an attempt to reap maximum benefits and gain recognition on the same. Many creatives, however, do not have a proper understanding of intellectual property rights, the thresholds required to register and how they can enforce their rights. This blog post, therefore, seeks to explore this important topic.

Intellectual Property Rights in the Digital Age

The protection of intellectual property rights (IPR) in today’s digital age is as important as it has ever been. This is because technological developments mean that individuals can make an unlimited number of near flawless copies of other people’s work.1 This will almost certainly deprive the creatives of income.

But just what are these intellectual property rights? The broad description is that intellectual property rights are a set of rights granted to authors, inventors and other creatives who own works that are the result of intellectual creativity. These intellectual property rights help determine who can legally use a creative’s work and to what extent they can do so. More importantly, however, they ensure that the people who created those works are sufficiently rewarded for their efforts. Common forms of intellectual property include trademarks, copyright, patents, industrial designs and utility models. Copyright is one of the most popular forms of intellectual property in the country. It protects the expression of ideas in tangible or material form. In Kenya, copyright is covered under the Copyright Act and the Berne Convention ratified by Kenya in 1993.

Does Temi have a case for Copyright infringement over his work?

Different intellectual property rights, including copyright, have varying thresholds that must be met before they are registered and/or before the creator can institute a suit for violation of such rights. In Kenya, as in many other jurisdictions, copyright functions as an “opt out.” This means that any work created (in tangible form) by an author is automatically assigned a copyright and the onus is on the creator to refute an award of copyright.

In particular, no positive action i.e registration, is required by the creator. This is captured under Section 22(5) of the Copyright Act which stipulates that copyright shall accrue automatically to a creator as long as he has reduced his work to a material form. Thus, non-registration of a work is not a bar to a claim by a creator. The implication is that an individual can sue for copyright infringement even where no registration has been done. Nevertheless, the above Kenyan position does not apply in other jurisdictions. In the US, for example, registration is necessary for one to institute legal proceedings against an infringer.2

Virtually any creation can be the subject of copyright including cakes and cake designs, national flags, musical compositions, autobiographies, photographs, letters and films. It is critical to note that a work must itself be original to enjoy copyright.3 Although copyright laws are territorial, there is a general degree of harmony which is largely as a result of the Berne Convention to which Kenya is a party. Any work created by a citizen of one-member state should enjoy protection in another country. In this regard, Temi’s work seems to meet all the qualifications to enjoy copyright protection in Kenya.

How similar is too similar?

Originality in copyright is interpreted differently. Many would perhaps confuse originality with novelty. Original means that the author has spent significant time and effort to create something. By contrast, novelty means something new and possibly not seen before. The rule of originality does not include novelty or an intent to be original.

Simply put, no one has a monopoly of ideas and because of this, copyright does not mandate that the creation be a first of its kind. Two people could write a similar song, take similar photos or draw similar paintings and all of them would be protected by copyright despite their similarity. As long as they were unaware of and did not knowingly imitate the other creations, then theirs are also perfectly legal. What is however forbidden is outright copying of another’s work and trying to pass it off as one’s own.

See Sample artwork by Temi Coker from his Behance Project below.

Photo of Imaara Mall by @trackmann2 on Twitter

To be or not to be infringed?

From an analysis of both Temi’s and Imaara’s works, it would seem difficult to show copyright infringement on the latter’s part. For starters, the images used by the mall are very different and the designers did not make use of any pictures from Temi’s project. The placement of the shapes is also interesting. Temi, in his tweet, stated that the mall had copy pasted his design but that does not appear to be the case. The color of the shapes as well as their placement is uniquely different from his own and the mall’s designer/artist even appears to have some consistency with the placement and colors. This is in contrast to Temi’s which are rather random.

Although there are some similarities between the two designs, the images, shape arrangement and color selection would seem to suggest that the artist who designed the Imaara artwork expended significant effort in creating and designing the art. Remember that a work does not have to be novel, it just has to be original. It is possible that both artists had the same concept and executed it slightly differently. Therefore, both sets of works should be able to enjoy copyright protection.

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Wahome Wilson (Tech Policy Fellow- Lawyers Hub)
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