On April 26, 2016 in South Africa, a day before Freedom Day, a landmark Constitutional Court judgement gave hope to every little person who has been at the receiving end of the bully tendencies of big companies and has had their intellectual property stolen.
In 2000, a young man called Nkosana Makate was working for Vodacom. While there, he developed the ‘Please Call Me’ idea, which he pitched to the product development director and they concluded a verbal agreement on payment in November 2000.
In February 2001, Vodacom introduced the service to prepaid customers Me. Many young men and women who were too poor to afford the ridiculous airtime rates, kept the fire burning in their relationships with this service as they texted to their sweethearts, ‘Please Call 1-4-3’.
Vodacom earned major profits and would spread the concept to other communication companies but Makate was never paid. Makate took Vodacom to court. Fortunately for him, he had a legal team that was willing to work on a contingency basis for the last 10 years all the way to the highest court in South Africa.
Former Vodacom chief executive Alan Knott-Craig had even claimed it was his concept, making tons of bonus payments from it. Vodacom has been given 30 days to start sorting out compensation for South Africa’s possibly newest black billionaire.
Makate’s fight was with a corporate giant but the arts field is full of equally heartbreaking stories without his happy ending. Those who have small production houses for film are particularly
familiar with this. A television station asks you to pitch and gives a deadline for presenting the concept. You do everything right.
You already have your actors or presenters aligned as soon as you get that call telling your pitch was the best. Except the call never comes.
A few months later, while you are flipping through the television channels, you see your concept being enacted... with another team of actors and executive producer credit given to some Cabinet
Minister’s incompetent niece or the TV station’s chief executive loser son who everyone in the industry knows could never come up with such a concept. Unlike Makate, you do not know any lawyers willing to take the case pro bono for you.
But artists must not always assume that in arts, it is just the big art companies who will mess them up. Sometimes it is fellow artists through lack of knowledge on one or both sides. An example, if
I may. Some weeks ago, a friend called asking for permission to stage an excerpt from my fourth book, Maid in SA: 30 Ways to Leave Your Madam. She was directing.
As I have copyright of this particular work and part of the proceeds from its performance went to help a friend, I was happy to grant permission without expecting anything.
The same excerpt, together with excerpts of other books written by writers on the continent, was later staged at the Goethe Institut a few weeks back. It was a full house and Patricia Kihoro did a sterling job of bringing my book to an audience that may not necessarily all have been traditional readers. The performances were so compelling that many who watched walked away with at least
a copy of the five books staged. During the intermission as I stood complimenting Patrica on a well executed performance, she equally complimented me by stating that she had enjoyed the work so much she may consider taking it to the stage as a solo performance. I was honoured. I was also ready to quip, ‘more royalties for me.’ A friend standing nearby overheard, raised her eyebrows and exclaimed, ‘you should just be happy that more people know you now.’
Unfortunately, it does not work like that.
I negotiated my contract for the book that was staged but most writers, just elated to be published, do not. When they sign a contract with a publisher, they have copyright on account of it being their intellectual property but the publisher has a percentage of copyright for having published the material. And the percentage is never small for these rights.
It usually ranges from 40 to 80 percent, too often higher than the royalty percentage that the author earns from the publishers.
Essentially this means if the author gives permission for staging, serial or broadcasting rights, the author becomes liable to pay whatever the publisher believes they would have earned from say, a
full house performance of the work in question. But even if this were not the case, it would still be the right thing to do.
In writing, as in visual art, acting, singing or any other art form, publicity does not pay the bills.
Artists should know this above any other group of people and not do that to each other. Sometimes we may know each other’s circumstances and negotiate to pay less than would normally be paid
but always, an artist should respect other artists enough to pay for their work if wanting to use it. Artistic work will not guarantee that all artists become Makates, but artists can avoid being
