Ghanaian dancehall artiste Shatta Wale and controversy are like twins. It’s either he loves the controversy or controversy likes him.
The good news out of his controversy is that it leads to a debate about topical and interesting matters. Sometimes, it’s as if, that is where he wants the national and/or entertainment discourse to focus.
Over the weekend, appearing before a showbiz programme on UTV hosted by the darling actress, Nana Ama McBrown, Mr Wale delved into law-accusing bloggers of copyright and privacy breaches of his brand, name, and likeness. He referred to his infamous video on Snapchat in May 2018, in which he was seen flaunting his manhood in a swimming pool.
Our jurisprudence on copyright may not be much because we hardly sue each other. It may be helpful to see some of these cases end up in court. To quote the famous justice Oliver Wendell Holmes; the prophecies of what the courts will do in fact, and nothing more pretentious, is what may clarify these matters even better. I will refer to some commonwealth case law and developments for guidance.
In Ghana, the copyright regime is governed by the Copyright Act, 2005-(ACT 690). This law provides adequate protection for authors and their works. Whatever a person originally creates or lawfully adapts, that person has the sole authority over that works and is responsible for both its publication and any monetary gains arising out of it. In other words, you can’t publish that work unless with permission/authorization and or appropriate compensation or payment for that.
There are many exceptions to the use of a person’s work without getting permission. But for purposes of this article, I will focus on when a person voluntarily makes his or her work public. Public meaning the person published it on either social media, mainstream media, or any other open platform. I will specifically look at section 19 (1) (d) and (e):
(d) in the case of
(i) an article published in one or more newspapers or periodi¬cals on current economic, political or religious topics, or
(ii) a broadcast on current economic, political or religious topics, the reproduction of the article in a newspaper or periodical or the broadcast or other communication to the public where a statement of the source is provided unless the article or broadcast when first published or made was accompanied by an express condition prohibiting its use without consent,
(e) the reproduction or making available to the public by means of photographic works, audio-visual works or other means of com¬munication of any work that can be seen or heard in the course of the reporting of fresh events or new information, if
(i) the work is reproduced or made available for the purpose of reporting by a news medium of fresh events or new information, and
(ii) the use of the work does not extend beyond that justified for the purpose of keeping the public informed of current events,
In summary, (d) deals with published articles in newspapers or broadcast mediums and (e) deal with photographic or audio-visual works, these provisions in effect say a person can reproduce a work already made public with acknowledgement unless when first published it was accompanied by an express condition prohibiting its use without consent.
The next factor to address your mind to is the medium the person has published in. Many of the new media platforms have standard contracts you sign on when you download and use such apps. For instance, when you post on some of the social media platforms like Facebook, Instagram, and Twitter, you grant them and their users a non-exclusive, transferable, sub-licensable, royalty-free worldwide license to use your content although you retain the copyright.
However, the licensing regime under Snapchat is different from Facebook and co. The temporary nature of Snapchat posts, I think a maximum of 24 hours was designed purposely so that, permanent copies of such materials will not be available. Snapchat acknowledges that people can be foolish sometimes and their past mistakes must not be used to haunt them in the future, so it developed the self-deleting app. That is why a person with the content on Snapchat gets an alert when another takes a screenshot of that person’s content. In Uk for instance, the government had to publicly announce that; “Under UK copyright law, it would be unlawful for a Snapchat user to copy an image and make it available to the public without the consent of the image owner,” Ed Vaizey, Culture minister said. This was in response to concerns about what the government was doing to prevent Snapchat images being made public without the consent of the owner. Many of them bordered on the sharing of sexually explicit images.
In summary, although an author sub-licensed his or her content to Snapchat, that license does not extend to users of same. So a screenshot may not violate Snapchat’s terms but violate that of the author. This is because you would have retained a permanent copy without the permission of the owner when the owner subscribed to a temporary publication.
So back to the issue of Shatta Wale’s nude video, can a journalist or blogger publish a news story out of the incident?
My answer is yes. He is a celebrity and what he does is news to his followers and many people-if the blogger or journalist thinks it is newsworthy, why not.
Secondly, can the blogger or journalist use the screenshot picture or even the uploaded video in the story?
My answer is no. by using the screenshot or video will be an infringement of Shatta’s copyright and possibly a breach of his privacy because of the medium the said video was published.
Thirdly, can I still use the video or screenshot without obtaining permission from him?
My answer is that you can’t use it without permission from him precisely because of the medium the video was posted. You could if the use can be justified. Do you think that it is in the interest of the public to know? If yes then the defence of public interest may avail to you. If no then, you cant.
Also, remember that what is in the interest of the public is not the same as what is interesting to the public.
The next stage will be, will your answers remain the same if Shatta had posted the video on Twitter or Facebook.
No, my answer would have been different because of the contractual agreements on Facebook. If it were Facebook, I will probably agree that bloggers and journalists can use the video or screenshot for the news story and merely acknowledge the source. This does not in any way take away the person’s copyright including both moral and economic rights.
In a recent case in the US, a court ruled that a photographer can’t sue a website for embedding her Instagram post thanks to Instagram’s terms of service. The New York district court determined that Stephanie Sinclair offered a “valid sublicense” to use the photograph when she posted it publicly on Instagram; “the user who initially uploaded the content has already granted Instagram the authority to sublicense the use of ‘public’ content to users who share it”, the judge noted.
All that I have said so far does not apply to commercial use of a person’s works. That will be a topic for another discussion. For instance, if Shatta uploads say a new song, you can’t simply upload it on U-Tube or start streaming it for profit without authorization. That one, you are in RED. Red for danger.
You must not pursue the issue of copyright with a black and white approach. Its usually not that straight forward and requires some context and conditions.
By: Sammy Darko
Sammy Darko is a private legal practitioner and a lecture in media law at the University of Professional Studies, Accra (UPSA).