Minting cash on intellectual property rights tightrope

Mohammed Assad Alby is among the growing number of young Kenyans making money from social media networks.

His trademark pickup line, Mambo, may be cliché, but it is helping him generate content for his TikTok account, so much that he scorns the thought of ever looking for employment.

“Unless the 9am-5pm job pays me Sh700,000 and above,” he says without flinching as he pulls a chair.

But amid the growing non-traditional career that has seen the 24-year-old appeal to advertisers who have struck endorsement deals with him to reach his over 600,000 followers on TikTok, 154,000 on Instagram, and over 30,000 subscribers on his rapidly growing YouTube channel, there is the lingering challenge of infringement of intellectual property.

Content creators and brand influencers use photos, audio, and videos of random people, and they post them on their social media sites to entertain or educate their followers.

Some seek verbal consent only for the people to later sue for infringement of privacy or lack of consent.

The new technology careers come with legal hurdles that may cost content creators and influencers huge sums of money.

Some lawsuits may also arise for misleading product promotions by social media influencers and bloggers.

Mohammed is among those facing legal challenges.

He was sued for content that he posted on his Mambo Nation TikTok channel. “It hurts that someone would sue me for compensation because of making people smile,” he says.

The plaintiff accuses him of failing to seek consent to post a video on TikTok, and that the pickup line, mambo, used amounts to defamation.

The video in question is among the first ones he created in September 2021 when he started content creation to pass time while he was still at the university.

“I didn't even know this particular video would go viral. It was in Nairobi’s Toi market. I approached this woman, and gave her the mambo lines, she agreed and we filmed. I asked if I could post and she agreed, but a year later her lawyers came after me demanding that I issue an apology and pull down the video because I didn’t have the consent.”

As a growing number of organisations turn to influencers to advertise their brands or create content for them, lawyers say there is a lot to learn about the law.

Experts say content creators and influencers must think carefully to avoid breaking the law.

Elizabeth Lenjo, an entertainment and intellectual property (IP) lawyer says the principle of copyright law is that if something does not belong to you, then it must be cleared with the respectful owner or holder of the right.

“It is important that they are aware, if they must use any third party intellectual property, be it music, pictures or any other IP assets, then they must seek permission from respective parties,” she says.

For influencers, she says, the brands should pay for the third-party content because they have contracted the influencer and ultimately are the users of the works.

“It is also important that advertising agencies, the brand and companies that are contracting these social media content creators and influencers do due diligence and have a mechanism to clear third-party rights because a brand is also an intellectual property. It’s a trademark that means they are also supposed to be vigilant on how their IP is being portrayed to an audience,” she adds.

And in law, there is the principal-agency relationship which dictates that a principal is liable for an agent’s conduct which means that if say a brand is not aware that a social media influencer X used song X and they are being sued at some point even the agency or brand or rather the principal will also be attached to the lawsuit.

“In commercial use, using someone's IP to market a product and earning a living out of it, the other person should also earn a living from it because you are exploiting their works to also make money. So the chain cannot be completed if the other right holder is not compensated,” she says.

Content creation or influencing has become a means of earning a livelihood and must be handled as a business.

Mohammed realised early that he could make money when his social media numbers began to grow.

“You can always convert eyeballs into money and having studied marketing at university, I picked one or two things. If I made people laugh for fun, it wouldn’t hurt to collect a few coins in the process,” he says.

He upgraded from a smartphone to proper tools of the trade to produce quality content.

“My father invested in my equipment, starting with the camera. I mean, the price of the camera we use to shoot TikTok videos can buy you a brand-new Vitz,” he says.

But even with the numbers, he says he had to put in the work to attract brands. “Most people think TikTok pays content creators (directly) but not in Africa. In Africa, it's a whole different ball game for content creators. First, you have to build a brand, then narrow it down to a niche that people know you for, and then you start pitching yourself to businesses for partnerships and collaboration. It’s a long shot,” he says.

Boniswa Sidwaba, the TikTok head of content programming in sub-Saharan Africa offers insights on the platform's monetisation programme in Africa.

“It's only in South Africa where we have rolled out the monetisation programme which remains our main market in the continent. Our main focus now is Nigeria which looks promising for us, same for Kenya which is rather an interesting market that we are still studying before we can roll out the programme,” Ms Sidwaba explains.

Unlike the rest of the continent, South African content creators have already been on-boarded on TikTok and as such earn directly from the app whenever they are involved in advertising campaigns initiated by the Chinese platform.

South Africans may earn millions of shillings directly from TikTok but it is not all gloom for Kenyans.

In a survey from interviews with content creators and media content agencies, top content creators in Kenya currently make at least Sh300,000 a month from brand collaborations.

But even as Mohammed and other Kenyans continue to wait for their turn, he is focused on making hay while the sun shines.

Nokia, Fanta, In Drive, and Two Rivers Mall are some of the entities that have hired him as a brand ambassador, and so have Bic and Gallitos.

“If you find your niche, you end up attracting brands that perfectly suit your brand. These [list of businesses that have hired him to promote their brands] are brands that relate with mine, which is about spreading positivity,” he says.

He has already registered his start-up, M.Alby Production Limited.

“My father saw the vision in me, way before because he used to love doing photography. He has offered me support and guidance,” he says.

His focus is on content while the company managers scout for business deals.

“The two managers pitch for corporate deals as well as manage the daily operations of M.Alby Productions. Then there is a team of three videographers, four photographers, and a lawyer all on payroll,” he says.

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