Creators and Exploiters
The Cambridge English dictionary defines exploitation as “the act of selfishly taking advantage of someone or a group of people to profit from them or otherwise benefit oneself. Exploitation is a noun form of the verb exploit, which commonly means to take advantage in such a way.” I have always found it strange that exploitation (or exploit) is the term used when someone wants to use your copyright works, however, experience has taught me why the word exploit is perfect for copyright.
Book publishing deals
If you own the copyright in a work, you are free to exploit it on your own or license the use of it to another party (such as a book publisher). ‘Exploit’ in this context means to develop or make use of it. However, if you grant a publisher your publishing rights, you will find that the publisher in most cases assumes the exclusive right to exploit the book.
Therefore, the author (when entering a publishing deal) undertakes that he/she shall not make, or purport to make any assignment of the right to exploit and publish the Work in any form. Furthermore, the author of the book in most cases, grants the publisher the right to allow third parties to exploit the work for a license fee, however, the author cannot without the permission of the publisher exploit the book himself/herself.
On the face of a book publishing deal, it seems like you have an investor when a publisher agrees to publish your book. In practice however, the publisher gains the power to determine how your book is exploited. Therefore, it is important to seek legal counsel to ensure that your moral rights are protected when entering a publishing deal, so you can avoid the possibility of your works being adapted in a way you do not like
Music
Popular music group TLC are renowned for their Grammy speech in which they said that they are broke as can be even though they sold millions of records. Music recording contracts are notorious for being unfair on the artists.
Quick example – generally when you enter a business deal with a partner in which your business partner funds the operation and you provide the services, there is usually a revenue split. The understanding then is that, after all the overheads are paid off, the two of you divide what is left (net revenue as per the agreement).
However, in music recording contracts you find that the label takes a percentage of the gross before the expenses are paid, and then the artist will only be paid if there is any money remaining. Again, the word exploit in its true definition seems to fit in well in this instance.
Television and Film
In 1986 Austria-based American screenwriter and medical doctor Joshua Sinclair penned down a tv series adaptation of the 19th century Zulu king Shaka Zulu. The $12 million television show production was commissioned by SABC, and it made the leading man Henry Cele an international star. SABC did not want to appear as the ones who commissioned the tv series because of a cultural boycott at the time, so the series was given to Harmony Gold (the production company) as a gift.
The screenwriter ‘Joshua Sinclair’ was meant to receive 8% of the revenue however he allegedly only got $75 000, Harmony Gold went on to make $500 million dollars from the television show.
Conclusion
Being a creator whether it be film, music or literary works is the most important part of any production, as a copyright cannot be exploited if there is no works (I hope you get what I am saying). However, merely being the author or creator is not enough to ensure that you will be fairly compensated for your works. Therefore, before you engage with anyone who intends on exploiting your works, it is important to obtain legal guidance to ensure that the right measures are put in place, so you are not exploited as defined in the Cambridge dictionary.
THE END
Thabani Njozela, a corporate/commercial lawyer and alternative disputes resolution practitioner, founder of Njozela Legal.
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