Owning the rights to Collective Amnesia: On IP & ownership.
Updated: May 18, 2021
2016, I am standing outside The Hangar at the National Arts Festival, looking for the venue of the show I wanted to see. I sort of knew that I wouldn’t make it - given that I didn’t know where to go, so I had resigned myself to just stand there and look for another show or go back to my room. A few minutes later I flip through the program to see what else is playing or will be playing in the next hour, and as I am doing that my phone rings.
Prior to that phone call I had a timeline, a list of to-dos before turning 30, goal posts organized in order of what was attainable with the resources and connections I had. It had been a year and a half since graduating. I was 23, with a theatre degree and no sort of “real” plan – just these goal posts and timelines; publish a book (any book) by 30, buy a house by 30, have a show on Broadway by 35, have a PhD by 40 yada – yada – yada (rolls eyes). What these calculations and conclusions were based on, I don’t know, but they were so valid for me at the time.
When the call came; inquiring if I would be interested in publishing a book of poetry, my first thought was that it was not part of the plan, and my second thought was “sure, why not”. After the phone call, the inevitable happened: Impostor syndrome. That guy never misses a beat, does he!
There’s so much I want to say in this post, so it might jump around a bit.
2015, I got this job offer to work at this theatre company. I am beyond excited – there was no plan (remember) so for my first job out of the gate to be the thing I studied for was a bonus. Fortunately, I was also in a relationship at the time with someone who knew the industry well and could offer their insight with things related to the industry. This job offer was a dream in theory, on paper (by paper I mean the contract) there were some minor T’s & C’s that came with the offer that were actually not-so-minor. I would only come to recognize the magnitude of these minor T’s & C’s in the last two years. Before signing this contract, my partner at the time read through the contract, highlighting and marking the clauses that either needed adjustment or needed to be removed. That relationship taught me the power of reading your contract, of passing it on to someone else if you don’t understand what things mean, of taking a moment to sit with an offer. But as all lessons go – sometimes we will keep learning them before they land / become habitual. With the help of my partner, I nervously draft an email inquiring about this particular clause:
"The copyright of the project(s) shall vest in THE [x], which shall be entitled to re-stage the project(s) at any time in the future with or without the involvement of the EMPLOYEE and without any remuneration or royalties being payable to the EMPLOYEE in respect of such re-staging"
It was also my understanding that this was a contract that people who had come before me, who had been at this company, had probably also signed. In my email I wanted to know if the work I would spend months creating would be something I would be allowed to re-stage outside of the company or if it was something I could claim as my own once the residency was completed - was it ok for me to challenge the royalties not being paid to myself and the company whenever the work was restaged elsewhere, was it ok to challenge the thing that those who had come before me had agreed to / signed?
[minor T’s & C’s that aren’t so minor]
As I draft the email there’s a war between my playing small voice that just wants to clarify the ownership aspect of making the work, the part of me that doesn’t want to upset anyone and mess up this opportunity, but there’s also a part of me that understands the absurdity of someone else making money / reaping royalties off of your IP long after you have made the work, and them having the audacity to bind you to a contract that says “because I funded or paid you for you to produce this work, you cannot even reap 10% or 5% or even 2% of the profit it makes in the future”
Insert: Michaela Coel & Netflix, Shondaland & ABC, Nkosana Makate & Vodacom and and and.
Before writing this post I went into my mailbox searching for some of the contracts where I had to negotiate shady deals or ask for clarity, and in almost all of them the email either ends or begins with an apology; sorry for the inconvenience, sorry, I don’t mean to create more admin for you etc. It took years for me to learn that it is normal to negotiate your contract, that it is more than ok and legal to do so. That you empower yourself by doing so. Contracts can be intimidating especially when you don’t understand the lingo or when you feel like you don’t want to rock the boat with the person who is giving you the opportunity. Sometimes it’s not even a great opportunity – you just desperately need the money, even if it means signing away your IP, rights, and royalties for an immediate transaction that will alleviate some of your financial pressures. And that struggle is real. I know.
Sometimes when we are having drinks and our guards are down, we hear horror stories about some of the deals black artists have made with theatres, labels, managers, agencies etc. And the number one common denominator when we are transparent with each other is that WE DON’T READ OUR CONTRACTS, or we don’t read to understand them, we don’t dispute the things that we feel like could potentially jeopardise our “one and only” chance / opportunity, we don’t want to be seen as ungrateful or difficult, or “better blacks” or trouble or the black you have to keep an eye on. Sometimes the figure placed in front you looks so good for the circumstance that you are in, and we are not educated enough on how IP and royalties work to negotiate a fee and royalty percentage that will benefit us even after the initial advance or payment has been made. The other thing is this, the people that you trust the most are the people you should one thousand percent have contracts with, more so than strangers or once off collaborators. People can love you and have your best interest at heart, but that love and best interest at heart can exist as a clause in your contract as well. So many foundations have been built in the best interest of legacies and icons / celebrities whose families don’t reap the glory and benefits of that foundation. More and more managers are dragged for filth on twitter for exploiting musicians. Artists are becoming more transparent with their stories of not owning their masters or IP. There are artists who blow up with hit singles, albums or bestselling books or plays and then disappear - years later they return with a tell-all of being poor and at their lowest because of being exploited by the people they trusted - people who had their best interest at heart. There’s a lot of education to be done around intellectual property laws, ownership, contract negotiation and the business of being a creative – granted - but! karma is also a real place, and it is reserved for those who prop up their lives and bank accounts with the gifts and talents of other people’s children. #StrusGod That’s another blog post. Remind me ok.
In September this year Kanye West took to Twitter to share his 10 Universal Music recording contracts page by page after battling to get control of his own masters.
(and there are so many examples like this)
“We’ve gotten comfortable with not having what we deserve … they allow us to have a little money from touring, get some gold chains, some alcohol, some girls and fake numbers that feed our egos… but we don’t own our masters…
When you sign a music deal you sign away your rights. Without the masters you can’t do anything with your own music. Someone else controls where it’s played. Artists have nothing except the fame, touring and merch” – Kanye West
(and this is not about Kanye, abeg! I know some of you get triggered)
Sometimes, you don't even get control of the merch or touring because some clauses state that the label or publishing house or company owns the work and it’s derivatives, which means that you have signed away the assets and commodities that could come from the original product; the book, the album, the idea, the show etc.
4 years ago when I was standing outside The Hangar and asked if I would be interested in publishing my first book of poetry, I was a theatre graduate who thought that she’d do her masters in creative writing before publishing her first book (of anything). I was already on the poetry circuit through slamming and open mics and doing the odd gig here and there. By this time, I had written a poem that would make some people notice me a little bit, and I would even say, a poem that got me that phone call. I had no delusions about being a well known writer or poet who could or was ready to publish, I was not even considering self-publishing at that point. Stick with the plan; make theatre (or try to), win slams, start to carve out a career as a poet and theatre–maker, we will publish things later.
Sometimes, the universe and your timelines are not in the same whatsapp group.
So! I go into this new venture: trusting, open, vulnerable, not educated about the world of publishing AT ALL – just really excited to be published and also published 7 years ahead of my timeline (lol). I was standing at the threshold of an opportunity I didn’t want to pass up or jeopardise or question or fiddle with too much – it was there and I just had to step into it, whether I thought I was a good writer or not, whether I believed I was a writer who was ready or not. I was presented with something I didn’t know I wanted until it was presented to me. The thing with an opportunity like that is that sometimes you don’t take the time to empower yourself first. Let me speak in the first person rather; I was presented with something that felt like a now or never moment (in my mind anyway), and the now or never moment felt like it needed a now decision and a now-readiness - even if it meant going into it without any knowledge of anything. I don’t regret the way things have unfolded because it’s led me to a point in my life where I now go into collaborations and business ventures with a different kind of awareness and agenda. I am a little more awake to those minor T’s & C’s that are folded in a contract, designed for someone else to reap the benefits of your labour for as long as they wish.
The legacy of whiteness and colonialism is ownership.
And that legacy is insidious in its nature. There’s a long history of things made and created by black people being claimed / stolen by someone else, a history of things designed and dreamt into existence by black people being beneficial and profitable to and for everyone else but the person who made it.
I am more aware now of how white artistic directors of theatres love to commission stories or works by black people and have those works tour and make money, but the owners of that story and work are underpaid or exploited for as long as the work funnels money back into the theatre / company. I have often seen productions devised by an all black cast credited to a white director / playwright. It happens so often that it doesn’t feel out of place, or out of the ordinary, or weird, or part of that legacy and system of colonial ownership.
It brings me deep joy to see a shift in the ways most of us (peers / black creatives) now move through negotiation and collaborative ventures with this awareness of what history has taught and shown us time and time again.
Things get lit very quickly when royalties are involved.
The truth will be exposed whenever there’s a tug of war for rights and ownership (for anything that is of value). It doesn’t matter if someone is an ally or has been an ally for years, it doesn’t matter if their grandfather marched in the struggle with Desmond Tutu, or if they are a CEO of a company or foundation that champions the voices of black women specifically – when anything threatens the wealth or income that was built off / on your back, the T’s & C’s of that allyship or kinship or championing of black women’s voices will be clarified in that tug of war.
Last year, with the help of an acquaintance, I registered my company Manyano Media, which I needed for practical reasons for a project I was working on at the time. I wasn’t really thinking about building a brand or housing all my works under one company, I needed a bank account where the money for the project could be deposited into. The last 3 years were also the wildest and busiest I had ever been so there wasn’t any time to think about connecting projects, building things, thinking about longevity etc etc. It wasn’t until this year when the world shut down and I was still for long enough to think about what I wanted the next few years to look and feel like. I was no longer interested in the machine I had created, I was no longer interested in not being knowledgeable about the policies and laws of the industries I am a part of. I wanted something else. I wanted to be empowered.
I was now in a position where I had the resources and time to make pivotal changes in the way I work, in the way I collaborate, in the ways I understand the marriage of IP, ownership, business and the arts, moving towards the voice in my head that had been nagging me for months to take complete ownership of all my works and their derivatives. Together with my manager (shout out to @WithLoveTheAgency), we began to plot how we could start doing all of that with the resources I had.
I started to think and dream about all the ways Manyano Media could be a container and vehicle for my wildest dreams, my IP, the stories I wanted to tell and the stories I wanted to see told by others. The negotiation with self to own the rights to Collective Amnesia and republish it under my company was one that took months. The decision was accompanied by a lot of fear, doubt and uncertainty – but I knew in my heart that I had to just dive in and see what it would take, what it would mean; psychologically, spiritually and financially to own your intellectual property, to own - literally - your story. In a world that is always seeking to take advantage of what or how much you don’t know, I am now learning that information and knowledge are currencies too. We are empowered when we know more or know better. So I have spent the last few months trying to know more, moving towards a different kind of agency and accountability – trying to figure out how to dismantle (little by little – for myself) a long lineage of being taken forra poes.
Courage and agency are complicated and challenging things or places; I always feel like I arrive there messy, panting, palms sweaty, jaws clenched, stomach bundled up in knots, impostor monsters doing the most– because to even get to a point where you admit out loud (to yourself) that you want something – or that you want it back – or that it belongs to you – takes a lot of work and a lot of brave girl pants.
In another blog post I want to write about the process of republishing my books under Manyano Media and what that whole journey entailed. Remind me, ok? In the meantime, I share a video of me visiting (for the first time in 4 years) the place where Collective Amnesia is printed, bound and packaged. That felt important to do, to see how much labor goes into a single book. It has taken a village to make Collective Amnesia a bestseller and visiting the warehouse where it all happens gave me a newfound appreciation for that village.
Back to IP & Ownership: wherever you are in your journey where IP and ownership are concerned – I hope your journey always involves reading the fine print and seeking counsel when and where you can.
[no one can really afford your IP, so do the work of understanding its value]