So who did plant the seed?

Whose copyright is it anyway? Sinethemba Twani is a playwright who works as a petrol attendant to pay the bills. He claims that a TV drama series bears an uncanny resemblance in content and title to one of his performed scripts. Photo: David Harrison

Whose copyright is it anyway? Sinethemba Twani is a playwright who works as a petrol attendant to pay the bills. He claims that a TV drama series bears an uncanny resemblance in content and title to one of his performed scripts. Photo: David Harrison

Sinethemba Twani (29) is a budding playwright from Gugulethu in Cape Town.

He could not afford to study drama but his insatiable interest in it led him to become an active member of community groups and he won the mentorship of Fatima Dike, a playwright, theatre director and the managing director of the Siyasanga Cape Town Theatre Company, which has ties to Artscape Theatre.

“Fatima Dike saw my work and wanted to direct my first play. From there, I never turned back from writing,” says Twani.

He works as a petrol attendant to generate a steady monthly income.

“My current job consumes a lot of my time so sometimes I don’t even get to write, attend workshops and network, especially if I have a day shift and a night shift. But I have to do that because I have bills and responsibilities.”

Through Dike’s guidance, Twani has been able to stage two of his plays, The Beneficiary and Imbewu. The first was staged in 2011 during the Artscape spring drama season. After this, there was a lull in his production.

“I didn’t have a company to take the show and produce it until I saw an opportunity at Artscape again. They were looking for new writers under a programme called New Voices. I submitted two scripts and they took Imbewu,” he explains.

Once his script was selected, Twani and Artscape signed a contract on June 26 last year, in which he would own the copyright to Imbewu and Artscape would have the “exclusive and irrevocable” rights to stage the work from October 2 to 7 2017 and from July 4 to 7 2018 should Imbewu be selected for the 2018 National Arts Festival.

According to both Twani and Dike, the show’s director, Imbewu enjoyed successful runs on both occasions.

In the play, a Cape Town taxi owner successfully ensures that his family does not live under the financial constraints he was subjected to when growing up. To ensure his legacy, he encourages his only son to join the family business, but the son has no interest in the taxi industry and chooses to study medicine.

The taxi owner and his wife then decide to have another son but the husband learns that he is sterile and that his first son is not biologically his. The play then explores what led to the conception and the taxi owner having to deal with his newfound reality.

According to Twani, he wrote the first draft in 2011. On April 23 that year, he pitched the story to Dike, under the working title The Sacred Sin. In that version of the plot, the wife was to be impregnated by her son.

“Fatima motivated me to change the title of the play because it was not proper English. She said a sin can never be sacred. It was too raw for African culture. That’s when I changed the play to Imbewu and Fatima approved the title,” says Twani.

Dike also recalls their interaction. “He brought the final script for his second play, Imbewu, in 2012. I gave him notes and he never came back. And then last year, Marlene le Roux, the new Artscape chief executive officer, started a new programme called New Voices and he sent his script. But he was having difficulties understanding how the Artscape’s systems work on his own. He ended up at my door to ask for guidance and that’s how I came to direct his second play.”

Meanwhile, a dispute has arisen over the copyright.

Twani has the emails between him and Dike about Imbewu that began in 2011.

Earlier this year, a drama series, Imbewu: The Seed, was launched by e.tv. In it, an ambitious oil mogul is determined to leave his business to his four children. But he learns he is sterile and that his children are in fact the seeds of an affair his mother orchestrated between his wife and brother.

The manner in which the leading men in both the play and TV series acquire their start-up capital and the way in which they are made aware they are sterile are similar.

In the subplot of Imbewu, the protagonist’s long-time friend suffers the death of his father and he inherits his father’s cattle. Not long after this, the protagonist convinces his friend to sell his inheritance so that he can buy taxis to start a business.

Similarly, the protagonist of Imbewu: The Seed convinces his biological brother to sell his herd of cows, inherited from their father, so that he can buy a partnership in a lucrative oil business.

In both dramas, the leading men have unresolved issues with their funders, who have been sidelined and shunned, and both learn from a sangoma that they are sterile.

But the TV drama is predominantly in isiZulu and is based in KwaZulu-Natal, and the number of children differs.

Twani was unaware of the TV show and says he was only alerted to it because of congratulatory messages from family, friends and admirers who had seen Imbewu while it was running at Artscape theatre and had linked it to the TV drama.

“I’m not really a television person so I received phone calls where people were congratulating me saying that I finally made it on TV. I didn’t know what they were talking about. I saw the first three episodes and thought, ‘No, no, no, no’. Everything there was just like my show.”

He sought legal advice and hoped Artscape would support him. But Artscape said it could not be held liable for copyright infringement and could not provide financial support.

“My fear is that if I don’t win how will I pay the lawyer fees? I feel like I’m on my own against big people.”

The “big people” in this case are the producers of Imbewu: The Seed — a collaboration between Anant Singh of Videovision Entertainment, Duma Ndlovu of Word Of Mouth Pictures and actress and executive producer Leleti Khumalo.

Singh is the film producer behind several anti-apartheid films, including Sarafina!, Cry, the Beloved Country and Place of Weeping. Ndlovu’s company produces the popular soapies Muvhango and Uzalo. Khumalo is known for her roles in productions that include Sarafina!, Hotel Rwanda, Generations and Uzalo. As such, she has worked with her co-producers in the past.

e.tv gave public sneak peeks of Imbewu: The Seed from January in television ads, on billboards and with media coverage of its producers. The show was first broadcast at 9.30pm on April 16.

A partner of Adams and Adams, Nishan Singh, who specialises in trademark and copyright law, says copyright is infringed when, for example, a third party reproduces or adapts a work without licence or the authorisation of the copyright owner. If the essence of the work has been copied, this is considered an infringement.

For the name Imbewu to be protected, it needs to qualify as a trademark. The plot, which is detailed in the script, qualifies for copyright protection if it is original, exists in material form, for example in a word document or email, and is written by a South African citizen. This protection is automatic if the conditions are met.

Singh says the author of the work is generally the first owner of the copyright. But if the work was created under the scope of employment, the employer would own the copyright.

To establish copyright infringement, it is important to consider the timeline of events, and the creation dates of the respective works have to be considered. In short, copying of the prior work must be shown.

“The fact that the name of the stage play and the drama series are identical supports the argument of copying,” Singh says.

Ndlovu declined to comment on the infringement allegations and referred questions to Michael Pocock, e.tv’s public relations specialist. According to him, Imbewu: The Seed was conceived by Ndlovu and a team of writers were brought in to develop the script in 2015.

The original name was Icala, meaning a case, but when it was presented to Singh the name was changed.

When asked to comment about the similarities, Pocock said: “The similarities are coincidental, and the story of Imbewu: The Seed also reflects all the demographics of the KwaZulu-Natal region where it is based.”

The team behind Imbewu: The Seed also claims to have no ties to Twani.

A representative of Singh and Khumalo, Nelish Singh, referred the Mail & Guardian to Pocock’s response saying: “Michael Pocock has already responded to your questions per his email of 17 July below. As he has presented the facts of the matter, there is nothing further to add.”

Instead of viewing this in isolation, such an occurrence begs one to wonder whether a David and Goliath phenomenon such as this one is standard practice in the industry. Does Twani’s plea stand alone, or are there many other aspiring creatives who have been dealt the same portion?

“Now that I know there’s a demand for the show, I want to invest more in it because there is more room for growth. I want to explore the country and be recognised so I can finally call myself an artist. I want to take my art seriously; I want it to be my nine-to-five.” 

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