Jamaica: “Intellectual Property Rights For Jamaica’s Rastafarian Community: The Argument Against Rastafari Intellectual Property Protection for Religious Symbolism”

Barry Gainsburg writes……

The protection of one’s intellectual property is a fundamental right that serves to encourage us to create, to develop, to experiment, to explore, and bring new ideas, processes and products to the world.  This protection means that another person cannot take, without consequence, what is created by you unless there is an agreement in place.  Essentially intellectual property protection such as trademark or copyrighting serves to ensure your “intellectual” property is not ripe for theft and misappropriation.

Now, it is important that we first explore the difference between what is a “Public Domain” work and what is “Protected Intellectual Property.   The term ‘public domain’ refers to works “owned” by the public as a whole. Works that are in the public domain are not protected by any intellectual property (IP) rights, Some things are not eligible for intellectual property protection and are automatically in the public domain. This includes,

(i) Facts;
(ii) mathematical formulas;
and (ii) generic words, symbols, titles and short phrases.

Accordingly,this also includes generic religious symbols. Therefore, a “generic” religious symbol such as a Crucifix,Star of David or Crescent Moon would not be protectable because it represents a system of beliefs that is not associated with a single identifiable “source.”  That is, the Roman Catholic Church could lay a claim to the Cross, but so could Orthodox, Protestant denominations, and thousands of other Christian organizations.  That is, the Orthodox Jewish sect could lay a claim to the Star of David, but so could the conservative, reform, Lubavitchers, any other Jewish organizations.  That is, the Sunni’s could lay a claim to the Crescent Moon but so could the Shiites and other Islamic organizations.

However, once one adds there own intellectual capital to building on those public domain symbols, that in itself can be trademarked and protected.  Take for example my client, LPH Rasta Corp, whose logo appears at the top of this article.  The Star of David embedded in the logo is not in and of itself protectable. As we have discussed  this is a religious symbol in the Public Domain.  However, once my Beloved Sister Kathy Howell added colors, designs and images around that Star of David, the complete logo is protected since it is a result of her intellectual pursuits and creativity.  Now, others can design around the Star of David but none can take a copy of LPH Rasta Corp’s logo without legal consequence (and I guarantee you there would be) since it has been registered with the Jamaican Intellectual Property Office (“JIPO”).

So the take away is that public domain works cannot be protected, but once one adds to or alters that which is naturally occurring – that can indeed be protected.

Now turning to those with a different view, the Rastafari Millennial Council, (“RMC”), a Rasta Community Organization which has Mr. Bunny Wailer as one of its elders, has put forth a proposed Act as follows:

The Rastafari Cultural and Intellectual Property Protection Act 2014

Object of Bill

The purpose of this law is to protect Rastafari cultural and intellectual property rights, including Rastafari traditional knowledge and traditional cultural expressions, such as Rastafari images in pictures, figures, symbols, illustrations, as well as the cultural elements of their history, music, art, craft and traditional artistic expressions, through a special registration and authentication system, in order to prevent unauthorised usage and exploitation of Rastafari cultural and intellectual properties and instead foster the consensual use of the said properties, for the just and economic benefit of Rastafari and by extension Jamaica.

Although I applaud the effort by the RMC and its members to protect Rastafri Culture, when it comes to cultural images and symbols, these are works in the public domain and have been for a very long time.  If this type of proposal were to be recognized and legislated, what would stop the State of Israel and Jewish Organizations from seeking and injunction and/or Damages from the use of the Star of David which have been used by the Jewish faith for over two (2) millenniums? And what of the Christians – Catholics, Seven Day Adventist, Baptist etc. from also taking a similar stance with regards to protections used for the symbol of the Cross? Who ultimately gets to collect the economic benefits of these religious public domain symbols?  Nobody currently does, nor should they unless they individually or as a community add onto the public domain symbol to make it their own.

In fact, in my conversations with the RMC, they took a stance that since I was using the Rasta Flag in my logo that I in some way individually owed the entire Rasta Community free legal services.  I took the stance that I did not.

RMC:  So the question is repeated. The Rastafari Individual Trader has never benefited Community development as self interest prevails. How in this new legalization should the Community benefit from Rastafari Individual Traders as the law suggests that in the case of Events, public use of Ganja must show benefit to the Community.

BRG: If I provide my services for less than value. If I advocate for the Rasta community’s position and not big foreign interests. If I advocate for pricing in Jamaican $ rather than US $. If I can help Sister Kathy with Pinnacle. If I can advocate for a tax going to a Rasta Community trust professionally managed. By being I my brother. Nothing more. Nothing less.

I have spoken with Prophet Greg and Maxine previously. I am that I am. I seek to use my knowledge to make sure my Bredren and Sisteen who want to avail themselves of my services know I am there for them. I am blessed in this manner and it is how I can serve. Rasta is not a profit making enterprise for I in any manner. I can assure you of that. My belief is of devotion to Jah and the greater reasoned good.

RMC: You are using Rastafari symbolism and language to refer to consultancy and it would seem that for the Community rights you should be providing Community consultancy free of cost and having individuals pay for your services. This is why the question of Community Rights is being queried. If Rasta is not a profit making enterprise then why are you using Rastafari symbology to present your to be paid for services? Isn’t that a contradiction?

BRG: No. I believe you are misguided my friend. It is who I am. I am using my law and business background to help members of I&I all’s community. Members who will desperately need my help or be exploited again.

Now, if your question is how do you know if I myself will exploit the community, that is a different matter. And the Answer is you don’t. You can’t see in my heart. However you can read my writings and seek out my reputation on these matters. However who is to say who is false Rasta. I leave that between Jah and I. It is a matter of trust. And faith.

I also believe I am entitled to compensation for my services. Like the baker for his bread. The farmer for his fruit and the musician for their art. To deny I the same right would seem prejudicial. My services are by agreement only. Jah blessings

So in my final analysis, LPH Rasta Corp. has taken the appropriate stance.  It has built its logo on the public domain status of the Star of David while adding her own intellectual creativity which is exactly the purpose of intellectual property protection.  It has also appropriately filed the required paperwork to protect the logo. To allow any religious group or community to have intellectual rights and economic protections in public domain symbols and works seems to be a misguided and expensive venture.  In the end Jah’s sun, Jah’s moon and Jah’s gifts to the world – are meant for everyone to equally and freely share at no cost.

Now, once man has added his imprinter and intellectual work to enhance and alter those gifts, that should certainly be protectable.  Anything less would be abomination. Jah Guidance and Blessings my friends.

Author: Barry Gainsburg

Please feel free to reach out to me at Gainsburg@bellsouth.net or visit my website at www.barrygainsburg.com if you have any other legal issues involving the cannabis industry.  I am here to serve the cannabis community through Barry Gainsburg, P.A. and Jah, Ganja & Reggae Limited (“JGR”).

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Ian Stewart – Wilson Elser Moskowitz Edelman & Dicker LLP
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