Disney can use ‘Hakuna Matata’
Recently, I did a session on “stress relief” for law students who are part of IDIA (Increasing Diversity by Increasing Access to Legal Education), a project to empower underprivileged communities through legal education. A key part of the session involved the use of music to beat stress. To this end, I played them ‘Hakuna matata’, a smash hit from Disney’s musical blockbuster The Lion King. Hakuna translates roughly to “there is/are no” and Matata means “problem(s)”. Taken together, this Swahili phrase, as the song itself goes, “…means no worries, for the rest of your days. A problem free philosophy”.
Little was I to know that even as this number was being belted out at the Indian Law Institute (ILI) in Delhi (the situs of our stress relief session), an online petition was doing the rounds, protesting Disney’s misappropriation of “Hakuna Matata”. Way back in 1994, Disney filed a trademark application for this phrase, which finally converted to a grant in 2003. However, it is only recently that this appropriation began to attract some attention, thanks to Disney’s announcement of a live-action remake of the old classic.
Many have decried this as yet another example of cultural misappropriation by a first world corporation. What is even more striking is that Disney wasn’t even the first to popularise this term through music. Rather, a Kenyan band (“Them Mushrooms”) deployed this in 1982 for their celebrated single “Jambo Bwana”. Why then did Disney go out of their way to blatantly appropriate an indigenous African phrase as its own trademark?
On a strict reading of trademark law, Disney is well within its rights to do so. In fact, the argument in the online petition that “Disney can’t be allowed to trademark something that it didn’t invent” is a bit off the mark. For the law permits almost any word or phrase to be protected as a trademark, if it comes to be exclusively associated with good/services of the IP owner. Take “Tata” for example, a widely used term that means “goodbye”. However, when used in relation to certain goods/services, the very same term denotes an exclusive connotation with the Tata group (at least in India). The law, therefore, permits the Tata group to appropriate this as a trademark, and prevent others from using it in relation to their goods/services. However, this does not mean that the general public is prohibited from continuing to use the term in a descriptive “non-trademark” sense (to bid goodbye or to describe any of the Tata goods/services).
In much the same way, if American consumers come to associate “Hakuna Matata” exclusively with Disney’s film and associated merchandise, then it is protectable as a trademark in the US. However, this protection only means that others cannot use it on their goods/services. But can continue to sing the song or use the phrase in a non-trademark sense.
While Disney’s actions may pass legal muster, what of ethics? For many see this as a moral issue, triggering memories of an oppressive colonial past. To make matters worse, this is not first time that Disney has been accused of such misappropriation. Some years ago, it tried to trademark “Dia de los Muertos”, the name of a Mexican festival meant to commemorate the dead. This was in relation to “Coco”, another Disney blockbuster which released last year, and is themed around the Mexican festival.
Fortunately, in the light of widespread protests, Disney backed down and abandoned its trademark application. But will it do the same with Hakuna Matata? For one, the term does not boast any special religious or spiritual significance. Second, the term is not endemic to any one indigenous group or community. Third, the trademark application has already converted to a grant; so no question of abandoning it.
Lastly, Disney had much less to lose in the earlier case by letting go of the trademark application. For it had already changed the name of the proposed movie from “Dia de los Muertos” (or “Day of the Dead”) to “Coco”. However, in the present case, “Hakuna Matata” is inextricably interlinked with the Lion King and its box office bonanza. Disney will want to milk it for all its monetary worth, even as the new avatar hits the big screen.
Unfortunately, as cultural memes flow more freely across digital borders, instances such as these will repeat themselves ad nauseam. For that is the very nature of the beast.
But what can be done? While many call for new legal norms, the law comes with its own set of constraints. Particularly in a dispute as complex as this, involving issues of culture, anthropology, economics and politics.
Which is why, even after nearly two decades of negotiations, countries are yet to come up with an acceptable treaty text at the World Intellectual Property Organisation, a UN agency tasked with IP issues.
A text that would not only prevent the cross-border misappropriation of cultural expressions, but also permit indigenous communities to proactively leverage their intangible wealth. While the “defensive” bit is relatively easier for the law to regulate, proactive protection through an IP-like regime is fraught with problems.
For the regime as it exists today is premised on the romantic notion of the single inventor/creator. Traditional cultures are more community-centric and find it odd to pinpoint the exact author or even the situs of creation.
Second, their relationship with knowledge/art is often more transcendental than an overly simplistic utilitarian (wealth maximising) view of the world; an atomistic perspective fashioned by the West and on which much of our current IP regime rests.
And therein is the problem. Or the “matata”. Hopefully the “Hakuna” will follow soon!
Shamnad Basheer is the Bok Visiting Professor of Law, University of Pennsylvania Law School, and the founder of IDIA.
The views expressed are personal
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