■Tell us about yourself.
My name is Ayodeji Olufolahan (Ayolegal). I am a public speaker, Dispute resolution specialist and an Entertainment and Fashion Legal practitioner. My practice areas include and are not limited to Intellectual property, Licensing Transactions, Information and communication technology, Business/Company Establishment Advisory and Property consulting. I graduated from the University of Ilorin and I am currently running my Masters of Law (LL.M) degree program with specialisation in intellectually property and Information Communication technology law. I am a member of the Nigerian Bar Association (NBA), International Trademark Association (INTA) and Intellectual Property Law Association of Nigeria (IPLAN).
■What lead to your interest in entertainment and fashion law?
My interest in entertainment and fashion law practice is rooted in my involvement in the creative industry over the years before I got called to the Nigerian Bar, I was an on Air Personality, Magazine Editor for Street Legend Magazine (a youth, fashion and Lifestyle magazine), talent Manager for various upcoming artiste and models, event organizer, event host and in house host for various pageantry competitions. Due to my involvement in the creative industry I came to the understanding of the behind the scene effort creatives put in, including the investment and sacrifices involved to get their work done. After my call to the Bar I decided to get more involved in the entertainment and Fashion Business and help creatives get value from their creations.
■ What does the law have to offer to creatives in the fashion industry and how can they attain value from the law?
It’s is a known fact that the Fashion industry is a multi-billion dollar industry that has created jobs for fashion designers, Makeup artists, models, manufacturers and even creatives in other creative industries and Fashion law plays a critical role in making the fashion industry grow. One of the pillars of Fashion law which is the intellectual Property law has played a vital role in the growth of the highly competitive global fashion industry, which generates more than USD 2 trillion per year. Intellectual Property is the core asset of the fashion industry and the law offers protection for the creativity and innovations of creatives in the industry. This protection grants exclusive and assignable legal rights to creatives and enable creatives to exploit their IP assets through licensing, franchising and merchandising which will lead to an increase in value generation and expansion in business domain. Moreover the increase in fashion design theft and availability of counterfeit goods which can cause damage to a fashion brand and affect value generation can only be tackled with the help of the Law and an industry where counterfeits are produced and sold in almost all categories of goods, legal protection is vital.
■ What changes do you think should be made in the Nigerian legal structure which would be of benefit to the fashion Industry in Nigeria?
There is a need for an effective intellectual Property legal protection regime in Nigeria fashion industry. The Nigerian Copyright Act (Chapter C28, Laws of the Federation of Nigeria) is one of the regulation under which the Nigerian fashion industry derive their intellectual property protection. Section 1 of the Act provides for the types of works that are eligible for copyright and these are: literary works, musical works, artistic works, cinematographic works, sound recording and broadcasts. Fashion designs falls under artistic works but protecting fashion designs in Nigeria under Nigerian Copyright Act(Chapter C28, Laws of the Federation of Nigeria) has been a serious hurdle because of the restriction placed under section 1(3) of the Act which is to the effect that an artistic work shall not be eligible for copyright, if at the time when the work is made, it is intended by the author to be used as a model or pattern to be multiplied by any industrial process. This means that a designer’s sketches are protected by copyrights so long they fulfil the requirements under copyrights (fixation and originality) but actual clothing item does not enjoy the same protection. This provision ordinarily defeats the intention of a fashion designer.
Alternatively a Nigeria fashion designer may seek protection under design patent which permit max production under the Patents and Designs Act (Chapter 344, Laws of the Federation of Nigeria 1990). Section 12 of the Act provides that, “Any combination of lines or colours or both, and any three-dimensional form, whether or not associated with colours, is an industrial design, if it is intended by the creator to be used as a model or pattern to be multiplied by industrial process and is not intended solely to obtain a technical result” . However seeking protection under the Patents and Design Act is not the most practical option. The requirements that the design needs to be novel and must not have been released to the public to attract protection would lead to an uncalculated risk for the designer as the designer would not have the opportunity to test the fashion market with his or her designs to see how well the design is received by the public before going through the effort and expense of registering the design.
Also the process of registering a design can be lengthy and this might defeat the immediate needs of a designer because the fashion industry operates with fashion trend. Imagine battling to register a design that might go with a trending fashion item and due to the lengthy process of registration, the design got registered after the then trending item becomes outdated.
Fashion is too fast-paced for protection under this regime. Nigeria fashion industry needs an effective legal regime that can evolve with the growing fashion industry. Nigerian intellectual property laws governing fashion are in need of amendment and lessons can be learnt from other jurisdictions like the European Union which has protection for registered and unregistered design rights that provides protection for garments and accessories as a whole. Also lesson can be learnt from the The design Piracy Prohibition Act(introduced in 2009) , innovative design protection and piracy prevention act(introduced in 2010), and Innovative Design Protection Act (introduced in 2012) bills proposed to the congress in US to propose an amendment to the US copyright Act to provide sui generis protection for fashion designers.
Finally there is a dire need to have a similar properly structured association like The Council of Fashion designers in America and British Fashion Council, in Nigeria to champion the interests of stakeholders in Nigeria fashion industry.
■What steps do you think creatives need to be aware of in order to be legally protected?
• Understand what rights you own in your original work.
• Ensure that you have taken all necessary steps to identify yourself as the creator and rights holder.
• Put in place a plan for the exploitation of your IP, including consideration of licensing and assignment of your rights and appointment of agents to represent you and your work where this is likely to produce the best return.
• In the event that someone infringes your intellectual property rights, you need to understand what steps you can take to make them stop and what kind of compensation you can get. You should be aware of the various options available to you, and their cost, before taking your work to market.
■ What is the place of the law in the Nigerian fashion Industry?
Although the laws that regulate fashion in Nigerian fashion industry are in dire need of amendments. The law still determines the extent of value creation and IP exploitations in Nigerian fashion industry.
■ What advise do you have for creatives who do not see the law to be primary to their business?
Without the law and a proper legal regime, creatives will find it difficult to enjoy maximum exploitation of their work and In other to effectively manage their creative business in fashion industry they have to exploit IP by developing a brand image, license and merchandise of IP rights, and this should not be left as a last priority to be addressed only after the fashion business is established and running, to the contrary a brand image should be developed in parallel to the business. And a branding and merchandising strategy should constitute the integral part of the business plan. It is important for creatives to obtain sound legal advice at an early stage in order to appropriately protect their works and effectively manage their creative business.
■ What other Interests do you have?
Hosting events, Radio presenting, researching and travelling.