Wakanda’s Woes with copyright!

Black Panther is a blockbuster Marvel movie produced in 2018. The superhero movie was based on a fictional African country Wakanda, a hidden technologically advanced country. Black Panther became the first comic book and superhero film to be nominated for Best Picture at the Academy Awards, as well as the first film in the Marvel Cinematic Universe to win an Academy Award.

The movie illustrates and draws from African heritage. The movie went on to win Academy Awards for Production Design and Costume Design in 2018. From hair to costume, Marvel is reported to have spent a significant sum to ensure that the movie reflects the diversity of black culture and identity. In terms of costume, the movie used popular Ghanaian designs, kente which T’Challa, the Black Panther wears in one of the scenes. Kente cloth is made by a form of strip- weaving, which features distinctive designs and colours and is associated with wealth and celebration. It is produced by two ethnic groups in Ghana – the Asante and the Ewe. Kente is protected as “folklore” under Ghana’s Copyright Act 2005.

The World Intellectual Property Organisation, and other international organisations have continued to discuss a suitable international regime for the recognition and/or protection of “traditional cultural expressions” (TCEs) and “traditional knowledge” (TK). Africa countries who share their cultural heritage is considered to fall within the definition of TCEs and TKs however they have also come up with national rules and laws that recognises cultural heritage products.

The Ghana National Folklore Board has recently stated that it intends to request compensation for Marvel Studio’s use of the kente designs in Black Panther. The Board claims that permission was required by Marvel in order to use the designs or other protected cultural expressions for commercial purposes.

Section 4 of Ghana’s Copyright Act protects kente and other expressions of folklore from reproduction, adaptation and communication to the public. Section 63 allows the Board to preserve and monitor the use of expressions of folklore. If anyone intends to use folklore for any purpose, other than as permitted under section 19 (training, education etc.) of this Act, they are required to apply to the Board for permission and a pay a fee.

Briffa’s comments

It’s definitely important to note section 4 and 63 of the Act, however it is also important to consider who made or wove the kente designs used in Black Panther. Purely because section 76 (Interpretation) of the Copyright Act defines “folklore” as follows:

“…the literary, artistic and scientific expressions belonging to the cultural heritage of Ghana which are created, preserved and developed by ethnic communities of Ghana or by an unidentified Ghanaian author, and includes kente and adinkra designs, where the author of the designs are not known, and any similar work designated under this Act to be works of folklore (emphasis mine).”

If the author of the designs in the movie is known then it would be assumed that the definition of folklore will not be covered under the Act so the Board will not be able to implement Marvel for compensation. Marvel would likely strike a deal and could settle the matter with the Board quickly. Whatever the outcome this brings it would be a good aid for WIPO and other trade organisations to consider and the implication of TCEs and TKs into an international regime.

If you have any issues with copyright or any other aspects intellectual property you want to discuss, we at Briffa advises on all aspects of intellectual property law and practice and offers free 30-minute consultations to all new clients. If you would like to book a call or a meeting with one of our specialist IP lawyers, please contact us or call 020 7096 2779.

Written by Hasnath Ahmed, Solicitor