These days copyright law is always in need of an update. But some of its flaws and failures are much older and more embedded than those associated with technology changes. Pawlet Brookes, keynote for CILIP Copyright Conference 2024 (taking place online on 23 May) explores historical and contemporary problems that intellectual property law and its interpretation have caused for black artists and creators. Register here.

Pawlet Brookes MBE is the Founder, CEO and Artistic Director of Serendipity Institute for Black Arts and Heritage, which she started in 2010. Her work has included setting up heritage initiatives: Lost Legends: 30 Years of Black History Month in Leicester (2016-2017) and Archiving the Past: Reflecting the Future (2018-2020). Serendipity has recently been awarded one of the largest National Lottery Heritage Fund grants for a Black arts and heritage organisation, £812,000 for its Unearthed: Forgotten Histories. In this Q&A she discusses the impact of intellectual property law on the black cultural landscape.

Information Professional – Can we talk about your own experience, career, training and motivation in the arts and how this led to setting up Serendipity?

Pawlet Brookes (PB) – I have worked in a variety of different roles throughout my career from Marketing Manager at the Nia Centre (Manchester) in the 1990s, the UK’s first black arts centre and later as Artistic Director of Peepul Centre (Leicester), Chief Executive of Rich Mix (London) and as an Arts Council assessor.

Serendipity Institute for Black Arts and Heritage was founded in 2010, with our flagship dance festival Let’s Dance International Frontiers (LDIF) taking place in 2011 and we also began coordinating Black History Month for Leicester. My ambition has always been to showcase high-quality work that showcases black artists and black-led creative practice for everyone to engage with. In 2016, Serendipity was awarded a grant from the National Lottery Heritage Fund for Lost Legends – 30 Years of Black History Month in Leicester and our work has gone from strength to strength covering arts and heritage. One of our significant projects coming up in 2024 is 100 Black Women Who Have Made A Mark, which will see the creation by five visual artists of 100 portraits of black women, connected to Britain and Ireland, coming together in one exhibition.

When did you become aware of intellectual property and copyright problems during your career?

PB – Throughout my career I have been very aware of intellectual property issues, directly and indirectly, in the UK and internationally. Black artists have historically been victims of discriminatory IP laws, IP theft or lacked satisfactory legal counsel.

For example, black British composer Samuel Coleridge-Taylor’s famous work Hiawatha’s Wedding Feast was sold outright to Novello and Co for a mere 15 guineas. The piece went on to become incredibly successful, generating much income for the publishers, which Coleridge-Taylor did not benefit from. Similarly, the influence and appropriation of black creatives has occurred across all walks of creative practice. For example, in the US you have black musicians being covered by white artists, who then are often given the credit. For example, Hound Dog by Big Mama Horton is better known for its cover by Elvis. This is particularly the case when the creativity, such as jazz music, is not easily notated into writing or recording, especially prior to technological advancements. I think with these advancements, particularly with the rise of AI, we are entering a new era of IP and copyright issues.

What is Serendipity’s mission?

PB – Ninety-nine per cent of our work at Serendipity is black-led, black-product. For us and by us. I have always been clear in my vision that we centre perspectives from the African and African Caribbean Diaspora by embedding them in cultural experiences for all. That means that what is on the stage or on the page is black artists and practitioners, but everyone is welcome to be part of the conversation – as an audience member or participant.

As a result, our audiences are very diverse and representative of the demographics of our region. The ambition is that we move beyond common stereotypes that black-led work is amateur or only community-based and really start to position the work on a par with that of white-led institutions, such as the Tate or the Barbican.

What sorts of problems have you came across?

PB – As our work across arts and heritage has grown, we have begun to see similar issues arise quite frequently. For example, a lot of works by black artists are often uncredited or miscredited. Sometimes people do not necessarily realise they need to seek permission to use the work of artists.

Time and time again I have been called by artists detailing issues where they have waived their moral rights to their own work or alternatively where their intellectual property rights have been infringed. We have always been really clear with the artists that we work with that they need to read and interrogate their contracts, both with us and with other organisations.

We have also been faced with a lot of challenges around finding the identity of portrait subjects and the creatives behind images of black communities. We have been actively trying to find the creators through research and having conversations with people who might recognise people in the photograph. Where we haven’t been able to find the creator we have registered images as Orphan Works, and this has been important for us.

For example, even the National Portrait Gallery has been in touch with us to try and locate the photographer of an image of Eric Irons. It ensures that we keep the conversation alive around intellectual property and ownership.

Do these problems affect all artists and performers? Are they experienced differently by black artists and performers?

PB – I think this is an issue that all artists, performers, practitioners, archivists and researchers may face. However, working with black artists, performers, practitioners, archivists and researchers, who are also affected by systemic racism, there is an intersection with intellectual property and ownership. For example, universities normally own the intellectual property rights to the data of a PhD thesis, but in areas of research where even the supervisors are not experts, this is incredibly problematic. Similarly, many artists and performers do not have rights to use their own photographs.

We haven’t done any formal studies, but I think that emerging artists are particularly vulnerable. They are so passionate to create work and make a start in their careers that they often do not realise until it is too late that they have given their work away.

This is why the work of Serendipity and Naomi Korn Associates is so important; we are trying to create equity by giving people tools to navigate the complexity of copyright law from the start, so that the creative industries are fairer, and more creatives are empowered.

On another note, I think understanding that copyright law is different internationally is also important. For example, in the UK copyright is granted as standard but, in the US, it must be registered. We work internationally and so being aware of these differences is critical for artists.

What light has your archiving experience shed on IP problems?

PB – Serendipity Institute for Black Arts and Heritage has a growing collection of archival materials called the Living Archive. The ethos for the Living Archive acknowledges the archive not as a static structure where objects are labelled definitively, but one that continues to evolve through interpretation and reinterpretation. It is a collection of archival materials that can be used by all: artists, academics, researchers and those tracking their family history.

However, in developing a Living Archive collection we are having to address everything from Orphan Works, third party rights, digitisation, legacy preservation, fair use. We are addressing what all of this looks like for our organisation and people using the archive, recognising that it is a shifting landscape with technological advancements taking place.

For Serendipity Institute for Black Arts and Heritage, we are actively seeking to redress the historical bias and colonial gaze, through interpretation and reinterpretation. I think that many people in institutions have been wary about “decolonisation”, as they think that it means destroying or removing. However, I think for many people, particularly those whose heritage lies in former British colonies, they recognise that it is impossible to separate out history.

The history of the Caribbean is tied up in British history; black history is part of British history. What we want to reveal is the whole picture, rather than just a part of it. This often means dealing with very difficult subject matters and difficult language, but also that now previously hidden stories are coming to light. They have real life impacts too.

We have recently been working with a family in Leicester to document the story of their ancestors. What we uncovered was a performing arts dynasty that traced back to Methodist preacher Reverend Francis Nelson Countee, who had escaped enslavement in America and his son and daughter-in-law, Charles and Eliza Countee, music hall stars known as The Two Countees. It was a legacy that was continued by their daughter Frances ‘Mabel’ Elkington, neé Countee, and her own children and grandchildren – Diane Clafton, Richard Elkington, Allan Countee. Many of the archival items were family photographs and documents, so navigating the rights and treating the story and items with respect was paramount.”

Do arts or publishing institutions and organisations exacerbate some of these problems?

PB It is a particularly complex issue. Many funders are keen to ensure that all work created is open and accessible to all. In many ways this is fantastic as it enables as many people as possible to engage with work. However, it also reveals other challenges and ethical issues, particularly around monetisation and safeguarding. We are constantly in conversation with different organisations to unravel this, working to ensure the best outcomes for all parties involved.

We have also learnt a lot over the last 14 years in our own work and practice. We are always refining our contracts and agreements to ensure that the work of our artists is protected, but also that our work as a creative organisation is safeguarded for the future.

problems with the IP laws themselves?

PB – We live in a racialised society, so as a black-led organisation working with predominantly black artists, this intersectionality is present in almost all issues. I think moving forward it is essential that more legislation is developed that clarifies use around AI, both for people whose work is on the internet and thus feeding the AI and for people using AI in their creative practice. Historically, you look at cases such as the use of the ‘Amen break’, from Amen, Brother by The Winstons and performed by Gregory Coleman.

Arguably, it is one of the most sampled pieces of music, a foundation of hip-hop; it has featured in songs by Salt-N-Pepa and formed the foundation of 1990s British dance music. However, Coleman never saw any royalties and died homeless and destitute, without knowing the legacy of his creation.

Across cultures, there is a constant process of creolisation, hybridisation, remixing and creating new works out of what has come before. All of this is integral to us as creative beings. However, what does need to change is that artists, especially Black artists, are credited for their work and, importantly, remunerated fairly. I want to see fewer cases of exploitation and more grounds for celebration.

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