In this article, Special Guest Contributor Liz Lenjo of MyIP Legal Studio weighs in on IP implications in the fashion industry and the increasingly blurred line between 'inspiration' and 'exploitation'
Liz Lenjo is an Advocate of the High Court of Kenya. She specializes in Intellectual Property, Entertainment, Media and Fashion Law. Considered among the pioneers in this niche area of law and recognized in Business Daily Top 40 under 40 in 2018 at 32 years, Liz holds a Bachelor of Laws from the Catholic University of Eastern Africa - Kenya, a Postgraduate Diploma in Law from the Kenya School of Law and a Master of Laws from the University of Turin (Italy) and World Intellectual Property Organization (WIPO). She is also the Founder and Managing Legal Consultant of MyIP Legal Studio, a boutique legal consultancy catering to the creative industry as well as corporates and Non-Governmental Organizations that use art and content to market their products and services as well as a part-time lecturer at a leading law school in Nairobi, Kenya where she lectures on Entertainment and Media Law.
How do you feel about the state of innovation in Africa today?
LL - Africa is really doing well when it comes to innovation. Even though we may be playing catch up sometimes, in the technology and fashion space, we are really improving. That is why IP safeguarding must be primary; otherwise all these novel efforts may be in vain. The business world is quite rough and only the smartest and toughest survive. As we start asserting Traditional Knowledge (TK) and cultural expressions as sui generis IP rights in our communities, I look forward to communities actively innovating around what they already own and creating dynasties from their cultural wealth.
Speaking of traditional knowledge, you published a paper recently that stresses the need for the industry to address the role of culture in fashion and entertainment. What motivated you to write on this?
LL - The fashion industry must address the role of culture in the fashion business and we must determine where we draw the line between “inspiration” and “exploitation,” and most importantly, when compensation is due. Traditional knowledge and cultural expressions are attempting to come into their own as intellectual property rights. Thus, we must focus the presently blurred line for the fashion industry to avoid frivolous claims that will undoubtedly affect this economically lucrative industry. The Maasai “Shuka,” Louis Vuitton 2012 Spring Collection, and Beyoncé’s Indian Desi inspired music video brought the issue of traditional cultural expressions to the surface of social media. In reaction to this, several proponents of traditional knowledge and cultural expressions shared their opinions on social media about the need for compensation and recognition of such intellectual property rights for communities whose culture is exploited for commercial gain. This is arguably a valid reaction judging from the value of the fashion industry on a global economy scale.
"Shuka” is Kiswahili for a cloth wrapped around the body. The Maasai (pictured above) believe that the combination of colors and the patterns represent their identity as a community.
Below: Kim Jones’ debut menswear collection for Louis Vuitton in June 2011, featuring pieces inspired by his childhood spent in Kenya.
Increasingly aware of others’ widespread unauthorized uses of their name and traditional prints, the Maasai decided to take action. In 2009, a group of Maasai elders and leaders organized a two-day presentation on intellectual property and have since embarked on a fight to enforce their rights.The Maasai struck their first deal in 2018, when Koy Clothing, a United Kingdom-based retail company, agreed to pay a license to the Maasai for garments that make use of Maasai-inspired patterns. The Maasai are determined to ensure that this is the first deal of many.
American singer Beyoncé, was heavily criticized for her use of Desi wedding attire in her music video for her song "Hymn For The Weekend" with English band Coldplay. The music video also sparked backlash for it's depiction of India.
Can you walk us through any projects you are really proud of, the work involved and the outcome?
LL - I am involved heavily in meditation and arbitration of IP Disputes. Being that IP has the shelf life of a banana, I have mastered the art of persuasion to settle matters out of court. Many of them are confidential mediation settlements. We have won some amazing out of court settlements ranging from unauthorized image use matters and copyright infringement matters within Kenya and outside Kenya; with South Africa and UK being the most frequent jurisdictions outside Kenya. We have advised various artists, local and international fashion houses as well as film production companies and famous celebrities on IP matters, content business and image rights in respect to personalities.
We hear you were the youngest lawyer to be appointed to the Copyright Tribunal. What does that entail?
LL - The Tribunal hears and determines copyright disputes as highlighted in the Copyright Act of Kenya. I sit in the Kenya Fashion Council Legal Committee and Head of IP & Policy; and I am the Chairperson of the IP Technical Committee under the Kenya Bureau of Standards- the Kenyan agency that deals with matters standardization and certification. In addition, I am the Chapter Lead and Committee Lead for the Culture Platform.
What are some common client misconceptions about your line of work? How do you overcome or navigate those objections?
LL - There are still a number of individuals both lawyers and non-lawyers who trivialize IP, Entertainment and Fashion Law as niche areas of a legal practice. Most of them do not see them for what they are; complex, intricate and sector specific. To be an effective lawyer in these fields, industry knowledge is key, otherwise one can easily jeopardise a client’s business and business relationships. I have learnt not to approach law in a linear fashion in order to secure my client’s business interests as well as their clients and relationships. I try to dress older than I look... The legal practice still has that “Boys Club” socialization around it. But we take it in strides and always look forward to new challenges as they emerge.
Can you tell us about industry trends you've noticed lately or even implemented?
LL - During the pandemic, we pivoted to a virtual consultancy concept. We had already been trying to implement it prior but very few clients, especially locals, were welcoming of the idea of a virtual legal consultancy. Now, we are able to conduct client meetings purely online as well as online mediation meetings successfully. We have also started a CSR department where we have taken 3 pro-bono IP/ Entertainment law disputes for deserving clients.
What motivates you to continue doing your work?
LL - My goal and dream is to educate and prepare African businesses in securing their IP rights and enabling them to understand its value. Africans need to stop viewing IP protection as a liability in terms of expenditure but as an asset. I also hope to be at the forefront of successful collaboration projects in entertainment and fashion for African businesses with the West. With sound legal advice and creative strategies, I believe we can harness collaborations that also take into account our African narrative and way of life.
What are your hopes and ambitions for the future and what would success look like for you?
LL - My hopes and ambitions are to be part of a pragmatic and active African legal system when dealing with Intellectual Property Rights. I look forward to a unified approach to business across all continents in peace and harmony and where the Rule of Law prevails. As much as the business world is cruel and fast paced, I think we can still achieve this without stepping on each other’s toes. That would be an amazing legacy to leave behind for future generations.
