Lawyers say ‘pepper spray’ woman has grounds for compensation

The phrase ‘Dem pepper-spray Desmond eye’ has become one of Jamaica’s most recent viral soundbites, finding its way into remixes and even live performances, and two attorneys-at-law argue that the woman behind the viral audio has legal grounds to claim her share of the earnings.

Chairman of the Jamaica Reggae Industry Association (JaRIA) and attorney-at-law Ewan Simpson told THE WEEKEND STAR that there are legal grounds for the woman to be compensated.

“We have got accustomed to viral moments in the modern days because everybody can become viral in just a minute. But it does not remove the underlying principle or a person’s right that determines if your idea, content into tangible form, is being utilised by someone else. Make no mistake about it, people who are using it are using it as part of their system of earnings, so if someone is earning from it, why should the person whose image and likeness not also benefit?” he said.

For Simpson, that does not necessarily mean the woman is entitled to a lumpsum payment, but the principle of compensation remains.

“I don’t know that they are going to be millionaire over it, but there should certainly be some benefit for them.”

But Caresa Edwards, the woman behind the viral audio, told THE WEEKEND STAR that she has not received any compensation and has not made a fuss because her recording was never about entertainment. For Simpson, however, that does not change her rights.

“Her voice is part of her image and likeness, and that is her intellectual property. And the fact that it is being used, synchronised with music in another space, she does have a right for compensation,” he said. “She is entitled to it because it’s her voice. Her voice was recorded and has gone viral as news. She may have not been the person recording the video but either way one of the things you have a right to in copyright, is the recording of your voice. The mere fact that it is her voice gives her copyright.”

Under Jamaica’s Copyright Act, 1993, copyright applies to original literary, dramatic, musical or artistic works, sound recordings, films, broadcasts, cable programmes and typographical arrangements of published editions. Literary works include works (other than dramatic or musical works) that are written, spoken or sung. According to information provided on the Jamaica Intellectual Property Office website, copyright registration is not a compulsory requirement to obtain copyright protection under the law.

“She just needs to prove that it is her voice, that’s one, but she will really need an attorney to write to the producer of the new recording and make a claim,” Simpson said.

Fellow attorney-at-law Christopher Townsend agreed, but explained that the situation comes with its own complications.

“The question of whether or not she can recover is a complex one,” he said.

“From my understanding that there is a recording that someone made of [her] saying something in relation to a particular incident, so then you have the rights of the recorder and her rights,” he said. “But from all the circumstances I have looked at, it does appear to me that she is able to recover some by virtue of owning the right to what it is that she said. So with it being reproduced in music, I believe that there are sums for her and I would recommend she consult with an attorney.”

Edwards said that the recording came from an Instagram livestream while she witnessed West Kingston Member of Parliament and Local Government Minister Desmond McKenzie being pepper-sprayed by police. Her voice has since been used as a sample in a track released by dancehall artiste Future Fambo, while the clip has also been incorporated into performances and recordings by other entertainers.

“She is the author of the material, and being the author and creator of the material, she would have had some rights over it to claim for,” said Townsend. However, he opined that the real challenge is gathering the necessary information.

“There is TikTok, it’s part of musical with Fambo’s rendition of it, and it is being used elsewhere. So to gather the information to make a determination as is relates to applicability of the law is what needs to be done and from thereon, she can proceed to recover from the various entities that is using her creative product,” he said.

But Edwards said that she believes the process would be overwhelming and fears “the bring down” that often comes with social media attention. As such, she has stayed away from pursuing compensation.

Simpson said there is need for greater understanding of intellectual property of the right of creators and the right of persons – their voice, the use of phrases.

“There is a need for us to appreciate that more in a creative space like Jamaica and if more persons understood it, then certainly we would also have a nation benefit more.”