Maasai people
time the issue of whether and how to protect cultural heritage and folklore has
attracted increasing attention. Discussions in this sense have famously taken
place in a number of jurisdictions, including Australia and some African countries.
With particular regard to the latter, a
few days ago the Financial Times published an
interesting article,
discussing the case of ‘Maasai IP’.
Maasai are are an ethnic group that has
traditionally led a semi-nomadic life across southern Kenya and northern
anzania. They are are famous as warriors and cattle-rustlers.
The Financial Times article
discusses how awareness has arisen among Maasai as regards effective protection of the name,
image, symbols, and reputation of Maasai people. 
In particular, Isaac ole Tialolo, a
member of Kenya’s Maasai tribe, is credited as the initiator of a “more
legalistic approach to protecting – and monetising – [the] cultural
heritage” of Maasai people. As reported by the article, in fact, Tialolo
went from breaking the camera of a tourist who was attempting to take
photographs of Massai warriors to initiating and becoming the chair of the Kenyan
branch of the Maasai Intellectual
Property Initiative Trust
MIPI’s objective is to reclaim “the Maasai ownership of its famous iconic cultural brand.
The Maasai name, image and reputation is used around the world on products
ranging from cars to shoes, and exercise equipment and is worth billions of
[Washington-based Light Years IP estimates that more than 1,000
companies have used Maasai imagery or iconography without permission, including
well-known fashion brands – eg here – and luxury car manufacturers]
Louis Vuitton Fall/Winter 2011
and Maasai man
With the goal of redistributing licensing
revenue among a community where 80% of people live below poverty levels, MIPI
intends to increase awareness about Maasai’s IP rights and license the use of
Maasai’s name, image, brand, culture, and artefacts (eg shoes and
Besides actively seeking protection for
their IP (eg by means of trade mark registrations) – which in any case might be
a costly, complex, and lengthy process – one could wonder whether local laws afford any
protection to cultural heritage in the sense intended by MIPI.
The answer seems to be in the affirmative,
at least in part.
Kenya has for instance recently adopted
an Act
for the Protection of Traditional Knowledge and Cultural Expressions
. Both
terms – ‘traditional knowledge’ and ‘cultural expressions’ – are broadly defined. Protection is granted to every ‘community’ (to be
intended as a homogeneous and consciously distinct group of the people who
share any of the following attributes: (a) common ancestry; (b) similar culture
or unique mode of livelihood or language; (c) geographical space; (d)
ecological space; or (e) community of interest) against any unauthorised
third-party exploitation of their traditional knowledge and cultural
In addition, both the Kenyan
Copyright Act
 and the Tanzanian
Copyright Act
 contain a specific regulation of the use of folklore,
which is defined as:
– “a literary, musical or artistic work presumed to have been
created within Kenya by an unidentified author which has been passed from one
generation to another and constitutes a basic element of the traditional
cultural heritage of Kenya and includes – (a) folktales, folk poetry and folk
riddles; (b) folk songs and instrumental folk music; (c) folk dances and folk
plays; and (d) the production of folk art, in particular drawings, paintings,
sculptures, pottery, woodwork, metalware, jewellery, handicrafts, costumes and
indigenous textiles” (Kenya);
– “production consisting of characteristic elements of the
traditional artistic heritage developed and maintained over generations by a
community or by individuals reflecting the traditional artistic expectations of
their community” (Tanzania)

However, it would appear that neither
Tanzania nor Kenya recognise a self-standing image rights 
[but readers’ insights would be appreciated]. In this sense it is unclear how one could control
the unauthorised use of his/her own image, if not by attempting to rely – at
least in specific instances – on other areas of the law, eg passing
off. Recently the Ugandan
High Court
 issued an interesting decision that to some extent echoes
the outcome of the Fenty v Arcadia UK litigation. 

Overall the case of ‘Maasai IP’ is part of a broader trend towards the recognition of certain groups’ elements of identity as deserving of legal recognition. However, lacking specific legislation, traditional tools may only provide sporadic, limited, and fragmentary protection.

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