Carnival’s copyright commess continues

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Above: A photographer captures instant photos of masqueraders in February 2008. Photo by Mark Lyndersay.

BitDepth#1185 for February 21, 2019

Last week, Dr Vijay Ramlal of the TT Copyright Organisation (TTCO), supported by TT Carnival Bandleaders Association CEO Gerard Weekes, promised enforcement of punishments for copyright transgressions during Carnival 2019 that can run as high as 10-years imprisonment or a $250,000 fine.

A 2016 effort to make legal claims to past fees due for works of mas copyright was denied in court.

Weekes characterised mas men as being “disenfranchised” and complained that “mas practitioners have not benefited” from the reproduction of their creative work.

Weekes told Newsday that he had seen a photo of himself, portraying a King of Carnival costume, in a magazine selling for US$100.

This recurring claim of copyright royalties is limited to works of mas; a rights regime that’s active under local intellectual property (IP) laws.

A “work of mas” is defined in the TT Copyright Act Chapter 82:80.

“Work of mas” is an original production intended to be performed by a person or a group of persons in which an artistic work in the form of an adornment or image presented by the person or persons is the primary element of the production, and in which such adornment or image may be accompanied by words, music, choreography or other works, regardless of whether the production is intended to be performed on stage, platform, street or other venue.

At a recent talk on copyright, Nicholas Gayahpersad of the IP Office noted that such a work is not any one of those things, it is a specific incarnation of all those elements.

So Peter Minshall’s Hallelujah presentation and The Original Whipmasters’ very specific stage performances are likely to be the sort of creations eligible for protection.

The average masquerader with a leg cocked up in the air wearing, in the main, a broad grin, is not.

“Government regulations are needed to deal with an unaccountable CMO regime. A regime keen on holding others to account, with little internal self-governance.”

Dr Emir Crowne

Of course, I’m not a lawyer and that’s only my opinion.

Dr Emir Crowne, who is, has written about the issue from a copyright scholar’s perspective and finds need for more oversight.

“Government regulations are needed to deal with an unaccountable CMO regime. A regime keen on holding others to account, with little internal self-governance,” he wrote in Newsday this week.

I’ve licensed my work for use for a few decades now and that experience brings me to the other aspect of Carnival copyright that’s scrappy in the extreme.

In a learned post on this subject, the IP Office notes that “If the photograph is for commercial purposes and is taken along the Carnival venue, the person must be accredited.”

That accreditation, even appropriately stamped, does not actually provide any copyright transfers or licenses at all.

If you ask the people dispensing these badges, they will say the fee is for “copyright,” but rights are not a hand of fig, they are a series of licenses granted for specific use for a specific time of a specifically identified creation.

It’s also not possible to assert copyright on a produced costume, though you can, at some cost and with a sufficiently distinguishable work, register a 20 year patent on the creative construct.

An accreditation badge, regardless of the stamp that’s affixed to it, confers no actual rights at all and what Ramlal describes as a royalty is actually a penalty levied in the expectation that you will make money from your photos and it has no reference to any practical reality.

It’s taxation in advance of commercial discovery and as a business model it would be laughed out of the room in any other business.

Photographer Maria Nunes told me that after a TTCO assessment of $5,000 in fees, “It was not clear to me what paying that fee would entitle me to in respect of my reproduction rights. There was also no schedule of fees in the office that I could refer to. I found it all arbitrary and not transparent.”

Indeed, you have no more rights to fully exploit images that you capture after paying all the fees demanded than someone who is standing a few yards away on the track, outside the official venue.

The NCC has always been clear that their pass gives you access to the venue and nothing more, not even a chair, as it turns out. Ancillary rights overseen by Pan Trinbago, TUCO and the TTCBA/NCBA have always been vague and unsupported by documentation.

Paying for undetermined, unsupportable rights in advance of actual use is a peculiarly Carnivalesque abomination that continues because we allow it to.

“It was not clear to me what paying that fee would entitle me to in respect of my reproduction rights. There was also no schedule of fees in the office that I could refer to. I found it all arbitrary and not transparent.”

Maria Nunes

It exists because rights holders are too lazy or uninformed to create a proper licensing regime that would fairly tax actual commercial users and reward legitimate rights holders.

In a subsequent published statement, Mas Confusion, Crowne noted the concept of a “repertoire,” an area of legal responsibility over which copyright control might be reasonably exercised by a Copyright Management Organisation (CMO).

The TTCO, Crowne wrote, “can only administer and protect works of mas within their repertoire. In other words, if the creator of a work of mas has not contracted with the TTCO to enforce their rights, then the TTCO has no claim or jurisdiction to enforce the rights in that work of mas. The CMO regime is entirely voluntary.”

The TTCO offers a long list of creators it claims to represent on its website, including the rather broad term “Reggae Musicians.” The entire list is, to be blunt, rather suspect and potentially wishful thinking.

Here’s how a real world rights regime might work for the costumed elements of Carnival.

Every costumed band, every section, every major individual, king and queen is photographed as is, where is, before they perform on the stage holding a clear identification number. That number ties back to a database listing the names of the individual (where applicable), the bandleader, the designer and other relevant information for licensing purposes. 

A photographer would submit a photo intended for commercial use to an established Carnival rights licensing agency who would access their image and details database to contact the relevant rights holders and put them in touch with the photographer and commissioning client for negotiations on price.

The licensing agency would take a commission for this service, perhaps five percent of the fee, and everyone has a happy experience.

Or, in 2019, the whole process might be more efficiently handled through automation using a web app.

This however, requires planning, a commitment to a massive revision of the process and a decision to apply copyright law properly and fairly and to act in the best interest of all parties involved.

In short, it ain’t gonna happen.

I wish I could get more worked up about this, but I honestly don’t care anymore; so Ramlal and his copyright cabal can take win.

I walked away from the Grandstand for the last time six years ago after more than thirty years of eating dust in that space in what I believed was a shared ideal of mas conceptualisation, presentation and appreciative documentation.

What was once spicy and exciting for me in covering mas at the Savannah ultimately became metallic and stomach turning.

When I walked away from the Grandstand on that Carnival Tuesday night for the last time, I’d learned that what sweet in goat mouth, ultimately and inexorably, does sour in he bam bam.

Nobody seems to want a considered evaluation and record of the festival anymore and the deleterious effect of the stifling of proper documentation of any aspect of Carnival, save for those aspects of it which can earn a return on steep fees, is already present with us.

There has been been an extended chilling effect on Carnival coverage that’s led to a particular type of magazine being produced to meet rising costs and a dwindling audience.

Newsday cancelled its 2019 Carnival magazine, which was already facing challenges as a result of advertiser shortfalls, after Ramlal visited its offices and levied a $15,000 fee for photos of Carnival costumes in the publication.

That was described to me as “the final nail in the coffin,” by the project’s editor.

In a recent Facebook post documentary photographer Abigail Hadeed wrote: “We paying through our nosehole for our own archives held by international agencies like Pathe and yet still we want to stop our own gaze… our own unique way of looking at ourselves.”

For decades, Carnival’s gatekeepers have misunderstood the power of that photographic gaze, demanding the earnings they believed supported it.

They have always insisted that it was about unfair financial gain, but it’s not.

Our power as artist-curators of the nation’s visual heritage was in the craft of the documentation and persistence in holding on to the creative works, something that’s thin on the ground in both the private and public sector record of the annual event. 

Photographer curiosity about then marginal and dying traditions of Carnival, specifically stick fighting in the deep South and Blue Devils of Paramin led to auteur documentary films that re-energized both and returned them to centrestage in the festival. 

We now witness in life what we’ve chosen to show in our photographs and video clips.

Anyone who wants to lament that should take it up with the people who have worked to shut down the cameras that yearned to see more and to excite us with visions of a modern, passionate and engaged Carnival reality.

Paramin Blue Devils perform on Carnival Monday in 2006