Will Marvel Studios face copyright infringement claim for using Ghanaian kente designs in the Black Panther movie?

The protection of what has been termed as “traditional cultural expressions” (TCEs) and “traditional knowledge” (TK) within the realm of IP has always generated debate around suitability and enforcement thereof. The World Intellectual Property Organisation, the World Trade Organisation and other international organisations have continued to discuss a suitable international regime for the recognition and/or protection of TCEs and TK. African countries with their share of cultural heritage and cultural production “perceived” as falling within the definition of TCEs and TKs have come up with national regimes to recognise and/or protect TCEs and TKs. Such national recognition has either taken the form of sui generis protection (for instance, Kenya’s Protection of Traditional Knowledge and Cultural Expressions Act, 2016 discussed on the IPKat) or recognition within formal IP realms (for instance, Ghana’s Copyright Act 2005). Recently, Ghana has beamed its legal searchlight on the use of its traditional kente designs in movies. Here’s the latest:

T'Challa in kente

Black Panther is a movie about a fictional African country, Wakanda. Wakanda is the most technologically advanced country in the world but it prefers to hide its technology from public view. Black Panther was produced by Marvel studios and 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.

Black Panther draws from a myriad of 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 with the rights vested in the President on behalf of the people of Ghana.

The Ghana National Folklore Board, which is under the Ministry of Tourism, Arts and Culture has now indicated that it intends to bring Marvel studios to the negotiation table to discuss compensation for Marvel’s use of the kente designs in the Black Panther movie. It was reported that the Board claims that permission of the Board was required by anyone using the designs or other protected cultural expressions for commercial purposes. The Board is said to be preparing a “legal dossier” which it proposes to use to map out strategy to get compensation from Marvel Studios.

Section 4 of Ghana’s Copyright Act protects kente and other expressions of folklore from reproduction, communication to the public, adaptation and other transformation. Section 19 permits use of kente by individuals and for public interests purposes such as training, education, news reporting etc. The Board is empowered by section 63 to preserve and monitor the use of expressions of folklore in the Republic. Also, anyone who intends to use folklore for any purpose, other than as permitted under section 19 of this Act, is required to apply to the Board for permission in the prescribed form and the person shall pay a fee that the Board may determine. See section 64.

It appears the foregoing provisions inspired the Board’s thoughts. However, it is important to ask the question of who made or wove the kente designs used in the Black Panther movie. This is 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 kente designs in the Black Panther movie is known, it seems the use of the kente designs will not be covered by the definition of folklore and by extension would not be within the control/ownership of the President of Ghana and/or the Board. My prediction is that either the “legal dossier” informs a tactical withdrawal or this will be settled at the negotiating table, following the pattern of other attempts to situate TCEs with the realms of the formal IP regime, which is a shame because there has to be a better outcome in finding TCEs and TKs a home! Whatever happens, it will be good for the Board to make the “legal dossier” publicly available. That will aid the cause of TCEs and TKs.