Na­tal­ie?Brig­gs

From Berke­ley to Bai­ley and Min­shall to Mac­Far­lane, the mas de­sign­er has al­ways had pride of place in T&T's Car­ni­val cel­e­bra­tions.

The band­leader is a wear­er of many hats: leader of the band; or­gan­is­er; ac­coun­tant; man­u­fac­tur­er and busi­ness man­ag­er. As these func­tions have be­come in­creas­ing­ly spe­cialised, the man who brings out a band, is not nec­es­sar­i­ly the de­sign­er of the cos­tumes.

Mas to­day, is filled with guest de­sign­ers and spe­cial sec­tions. Al­most gone are the days of the band­leader who stands in the shade of the truck, while his de­signs float across the Sa­van­nah stage.

Car­la Par­ris, the en­ter­tain­ment lawyer who spoke with Sun­day BG last week on Car­ni­val fetes, out­lined a sce­nario to demon­strate the grey ar­eas now cre­at­ed by the rel­a­tive­ly new band­leader/mas de­sign­er di­vide.

"Let us look at a sit­u­a­tion where an over­seas com­pa­ny–a fash­ion house, for ex­am­ple–be­comes in­ter­est­ed in a par­tic­u­lar Car­ni­val cos­tume de­sign. They want to fea­ture this cos­tume in a fash­ion show. Who do they ap­proach for own­er­ship or for li­cens­ing of this cos­tume, or who do they seek per­mis­sion from to use it ?

"No cred­i­ble over­seas en­ti­ty is go­ing to be in­ter­est­ed in buy­ing in­to a li­a­bil­i­ty or buy­ing in­to a sit­u­a­tion where they de­cide to fea­ture a cos­tume in an event and a third par­ty comes for­ward in T&T, with a cease and de­sist or­der say­ing the de­sign be­longs to them and they ought to be paid li­cens­ing fees. This is why it is im­por­tant to clar­i­fy from the out­set."

Like the ori­gin of fetes spo­ken of last week, most band­lead­ers and mas de­sign­ers have in­for­mal, usu­al­ly oral agree­ments on the use of the de­sign and com­pen­sa­tion for such but, in the event of a dis­pute, who will hold sway?

Par­ris said that Car­ni­val cos­tumes are pro­tect­ed by copy­right laws.

"Copy­right, is a prop­er­ty right, which sub­sists in lit­er­ary and artis­tic works. Un­der Sec­tion 5 of the Copy­right Act, it is clear that the cos­tume can be cat­e­gorised as a work ei­ther wor­thy of pro­tec­tion as a work of draw­ing or work of ap­plied art. The act goes fur­ther to state that the orig­i­nal own­er of the copy­right is the au­thor, who has cre­at­ed the work. If you were to look at the con­cept and the no­tion of an au­thor, the per­son who would have cre­at­ed the Car­ni­val cos­tume would be the de­sign­er."

Par­ris said band­lead­ers and mas de­sign­ers should sit down and for­malise dis­cus­sions about who owns the cos­tumes and, there­fore, who has the right to be com­pen­sat­ed for their use. What­ev­er con­sen­sus aris­ing out of the dis­cus­sions should take the form of a writ­ten agree­ment. Par­ris said usu­al­ly, the de­sign­er and band leader have two op­tions.

"Is the de­sign­er as­sign­ing full own­er­ship of the de­sign to the band, which would mean they are agree­ing to a buy­out of the de­sign, so it is now owned by the mas band in full? Or is the de­sign­er sim­ply li­cens­ing the de­sign to the band, which would be spe­cif­ic to the band? A li­cense is not in per­pe­tu­ity. The de­sign­er could say to the band­leader: I am li­cens­ing this de­sign to you for the pe­ri­od of Car­ni­val 2015, from x month to x month, or for a pe­ri­od of a year, or for a pe­ri­od of years."

Par­ris said the dis­agree­ments aris­ing out of the lack of clar­i­ty on li­cens­ing and own­er­ship of de­sign has caused mas de­sign­ers, band­lead­ers and, ul­ti­mate­ly, the coun­try to lose rev­enue.

But li­cens­ing fees are not the on­ly way Car­ni­val cos­tumes can make those with own­er­ship rights mon­ey.

For decades, Trinidad Car­ni­val has been the sub­ject of doc­u­men­taries that have fea­tured mas­quer­aders in their cos­tumes.

"This hap­pens every year. Every year we see in­ter­na­tion­al pro­duc­tion com­pa­nies come from all over the world. You see them on the road, you see them in the mas camp, you see them in all dif­fer­ent as­pects of Car­ni­val events. But the ques­tion is: are any roy­al­ties from these films, doc­u­men­taries, shorts and se­ries flow­ing back to T&T?

"Roy­al­ty gen­er­a­tion is a source of in­come. How are we en­sur­ing that these roy­al­ties come home?"

Par­ris said Trin­bag­on­ian cul­tur­al au­thor­i­ties should no longer be fooled by the pitch that film pro­duc­ers–for­eign or lo­cal–were "ex­pos­ing our Car­ni­val to the world" and there­fore should not be ex­pect­ed to pay for the right to film it.

"We need to have prop­er writ­ten pro­duc­tion agree­ments in place, when com­pa­nies come to fea­ture us in the films, which would cater to the dif­fer­ent types of ma­te­r­i­al that is be­ing fea­tured in the film."

These in­clude the mu­sic, the ac­tors and an­cil­lary ser­vices con­nect­ed with such an ef­fort. Par­ris said the prop­er pro­duc­tion agree­ments en­sure that lo­cals in­volved in pro­duc­tions, par­tic­u­lar­ly those con­nect­ed with for­eign en­ti­ties, are paid what they are worth.

Sy­chro­ni­sa­tion deals with lo­cal col­lec­tion so­ci­eties al­low them to com­pen­sate artistes when their mu­sic is used in pro­duc­tions. On­ly one per­son, in fact, seems to be on the out when com­ing to com­pen­sa­tion and that is the mas­quer­ad­er, she said.

Par­ris not­ed that while band­lead­ers and mas de­sign­ers stood to gain from Car­ni­val cos­tumes, the mas­quer­ad­er didn't, at least not by just wear­ing them. She said while pro­vi­sions were made in the US and, to some ex­tent, the UK for com­pen­sa­tion of in­di­vid­u­als whose im­ages are used in pub­li­ca­tions, there were no such pro­vi­sion in T&T.

"In the Unit­ed States, the no­tion of im­age rights is well es­tab­lished. There, the right of pub­lic­i­ty has be­come en­shrined in law to pro­tect the eco­nom­ic in­ter­ests that one might have in his or her own im­age. In the Unit­ed King­dom, on­ly celebri­ties or pub­lic fig­ures can seek re­dress for the unau­tho­rised com­mer­cial ex­ploita­tion of one's im­age and the av­er­age cit­i­zen may seek re­dress by in­vok­ing hu­man rights leg­is­la­tion."

"In T&T, like most Com­mon­wealth ju­ris­dic­tions, there is no statute en­act­ed with re­spect to the av­er­age cit­i­zen and im­age rights. There­fore such an in­di­vid­ual would not be au­to­mat­i­cal­ly en­ti­tled to claim com­pen­sa­tion for the use of one's im­age. This right is lim­it­ed to celebri­ties and pub­lic fig­ures through oth­er ar­eas of law."

Par­ris said the gap in leg­is­la­tion presents an ex­cel­lent op­por­tu­ni­ty for dis­cus­sions to be­gin on mas­quer­aders and the rights to their im­age and ways this can be cap­i­talised on to ben­e­fit the econ­o­my.

Next week en­ter­tain­ment lawyer, Car­la Par­ris and the Sun­day BG ex­plore the rights of pho­tog­ra­phers/video­g­ra­phers cap­tur­ing im­ages of Car­ni­val fes­tiv­i­ties.