Baraza Media Lab recently organized a legal clinic that was specifically designed to help creative entrepreneurs learn the intricacies of the Kenyan legal system.
We sat down with Liz Lenjo, the Founder of MYIP Legal Studio, an African boutique legal consultancy firm that specializes in intellectual property law, entertainment law, media law, fashion and beauty law, technology law, privacy law, and consumer protection law.
Liz believes that the law should be accessible to all and easy to understand, especially for those within the creative industries. Her long term goal is to see a Kenya that appreciates the value of intellectual property, and the value of the arts and entertainment industry in Kenya.
Q: When a legal matter with a client or partner arises, what course of action should creatives and freelancers take?
Liz: Creatives might be afraid of taking cases to court – that has been the trend in Kenya, where the creative is reluctant to get into a legal tussle. But they should always remember that they are the creator of the work, and not an afterthought. It wouldn’t exist without them! Look at countries like Tanzania and Nigeria, where artists are able to follow due legal process to get justice. That makes a big impact on the strength of the creative economy. We can benchmark and follow the law for artists in Kenya as well.
Creatives need to stop shying away from the courts. It is the lawyer’s job to unpack and translate the law to get justice for the artists. Creatives shouldn’t be afraid to get legal help.
Q: Can emails and text messages be proof of a legal agreement between a creative and a client or partner?
Liz: It is common practice for most project-related discussions to take place via phone calls, emails and text messages. However, a legal agreement formalizing the terms of engagement is still very important, as emails and text messages do not hold as much ground as when a legal dispute arises.
Q: If a creative produces work such as an audio file and the legal agreement is yet to be signed, does the production belong to the creative?
Liz: Yes. Until the legal agreement has been signed, the creative work belongs to the creative. If it is necessary for the creative to commence work during the waiting period, it is advisable for them to share the work in bits as they push for the legal agreement to be signed as soon as possible. My advice is, don’t give away everything at once, because once it’s out of your hands, it becomes that much more difficult to control.
I also advise creatives to print hard copies as much as possible (of a script, pitch document or manuscript) and mark all the pages ‘confidential’. It’s so much easier for a client to share soft copies without your consent, and printing it as a hard copy is one extra layer of protection for you.
I’ve seen creatives also being lured by gifts like holiday packages. Then before you know it, your intellectual property is vulnerable as your guard is down. Insist on a contract, always!
Liz Lenjo Kags
Q: If I patent in Kenya, will it be recognized internationally?
Liz: Patents are territorial. As a creative, you only get legal protection through a patent in the country that you register in. You will be required to acquire a new patent in the country of interest.
Q: What are some of the ways in which clients, individuals, and contractors take advantage of creatives from a legal perspective?
Liz: A very common way that creatives are often taken advantage of is through partial payments prior to signing an agreement. For instance, a client or contractor may approach the creative during a desperate situation and hand them some money as before all the legal agreement has been signed by both parties. I’ve seen creatives also being lured by gifts like holiday packages. Then before you know it, your intellectual property is vulnerable as your guard is down. Insist on a contract, always!
Q: What should creatives consider before signing a contract?
Liz: Please avoid rushing to sign the contract. Feel free to bluff and inform the client that your lawyer would need to review the agreement first before you sign, even if you haven’t procured the services of a lawyer yet. This will give the creative enough time to slowly read and understand the contents of the agreement. Another tactic I’ve seen is clients sending contracts that are very long. There’s no reason to send a 40-page contract, unless the aim is to frustrate and intimidate the creative into agreeing to terms that are not in their favour. Please ensure you have an additional party review the contract.
Q: What kind of legal action should creatives take when payment from clients or contractors is delayed or not fulfilled entirely?
Liz: Before pursuing legal action, it is important that a creative has a proper trail of communication with the client or contractor. It is even more important to have this communication documented and the creatives needs and expectations are asserted clearly.
Many people have made it in the industry even when they play hard ball.
Liz Lenjo Kags
The creative industry thrives off good vibes and reputation. At times, pursuing legal action and going to court could potentially jeopardize relations between the creative and other potential clients and important connections within the industry. Clients also threaten creatives with being blacklisting, and tell them that they are being ‘picky’ when they refuse poor terms and unfair conditions. But at the end of the day you have to believe in yourself and your work. Many people have made it in the industry even when they play hard ball.
If you decide to go to court, the length of the case will depend on the judge and may utilize a lot of resources and take a long time for the case to be closed. In this case, mediation is a better alternative to navigating legal matters for creatives.
Q: Is it legally sound to acquire contract and agreement templates and then customize them for use?
Liz: I often do not recommend this approach. My advice is to have the initial contract drafted by a lawyer that you can use as a template thereafter. This way, even if you engage with multiple clients, the language used and the terms indicated are consistent throughout.
An important thing to remember is that protective lawyering is always better, more affordable and less stressful that defensive lawyering. You save a lot of time and resources by approaching a lawyer right at the beginning of your projects, rather than only reaching out when a dispute has arisen.
Q: Is it legal for organizations to hire a production crew on monthly salary packages without full employee benefits such as health insurance?
Liz: This is something that is subject to local labour laws and the case can be pursued with reference to the relevant labour laws and guidelines.
Q: What’s one notable legal dispute have you witnessed within the creative industry?
Liz: The most notable legal dispute I have witnessed numerous times is images that are shared without the express consent of a photographer or model. I’ve seen models being told that they are posing for ‘practice shots’ only for them to discover their images being used on billboards and calendars. Often the creative wins this dispute, based on privacy laws.
Q: Are small business creatives who sell on digital platforms such as Instagram and Facebook subject to tax requirements?
Liz: There’s a law now that small business creatives that sell goods and services online will be subject to the digital tax which is 1.5% per transaction. This tax requirement will be in effect from next year (January 2021) and will be applicable for all online purchases. Do not volunteer yourself for VAT unless you make sales or profits of more than KES. 5,000,000 per month. At times an accountant may persuade you to, but do not yield.
Q: What final advice would you like to offer creatives?
Liz: My advice to creatives and those aspiring to venture into the arts, is to always believe in your creativity and to always protect even the smallest work you do. You have to always safeguard every little thing you bring forth.
To get legal consultation from Liz Lenjo, contact her on: liz@myip.lawyer. She’s @LizLenjo_Kags on Twitter.
This article is a summary of the virtual event discussion between Christine Mungai, Curator at Baraza Media Lab and Liz Lenjo, Founder of MYIP Legal Studio.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to a practicing lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Baraza Media Lab Limited accepts or assumes responsibility, or has any liability, to any person in respect of this article.