Protecting “The Chokwe Thinker”

Whenever reference is made to a work of art named “The Thinker” in Angola, most people will think of the statuette “The Chokwe Thinker” (“O Pensador”).

The history of “O Pensador”, also known as “Samanhonga” or “Kuku”, goes back to 1932, when the Swiss painter and ethnologist Théodore Delachaux found the statuette in a “divination basket” (a basket containing many small objects used for the diviner to made prophecies at request of his clients) during an expedition to Angola. It is a wooden figurine, representing an elder, woman or man, in a position of deep meditation.

The gracious and inspiring position of the elder encouraged Delachaux, influenced by August Rodin’s sculpture “Le Penseur”, to name it “The Thinker”.

“O Pensador” is a work of art made by the Chokwe, a Bantu-speaking people living in northeastern Angola, as well as in southwestern parts of the Democratic Republic of the Congo and in the northwest of Zambia. Famous in Africa for their flourishing cultural traditions, the Chokwe’s semantically complex art forms include sculpted figures, masks, thrones, divination implements, basketry, and ceramics, many of which express historical, moral, religious and political conceptions.

Praised for its symbology and finesse, “O Pensador” has been exhibited in museums since 1936, and it was granted the status of a national symbol of the Angolan culture in 1984. Currently it can be admired at the Art Gallery of the African Union in Addis-Ababa, Ethiopia, and it is expected to be present at the Expo 2020 Dubai (postponed to 2021 and 2022) in the Angolan Pavilion.

Which IP rights?

Since 1984, “O Pensador” has gained greater visibility and relevance in Angola, in political, sociological and economic terms. For instance, besides being reproduced by sculptors and acquired in galleries, shops and craft fairs, it has influenced many economic sectors of Angola, which has resulted in a variety of trademarks applications in the country.

At present, there are 16 trademarks in Angola, in the names of five different applicants, consisting in the reproduction of the statuette, one of which is registered in class 30 for Coffee, tea, cocoa, sugar and coffee substitutes; rice, tapioca and sagú; flour and preparations made from cereals; bread, pastry and confectionery; sugar, honey and molasses syrup.

Bearing in mind the fact that the most relevant IP protection of an artwork is copyright, four questions arise:

(i) Is “O Pensador” a work of art protected by copyright, which could prevent the registration of a trademark?

(ii) Has a reproduction of “O Pensador” the needed distinctive character to be protected as a trademark?

(iii) What would be the consequences for a figurine originated by an indigenous people if it were registered as a trademark?

(iv) Can a reproduction of a work of art, which enjoys the status of national symbol of a state, be registered as a trademark?

In Angola, subparagraph h) of article 4 of the Angolan Law No. 15/14 of July 31, 2014, on Copyright and Related Rights, states that copyright protection shall cover works of sculpture. It is thus appropriate to determine in the present case that “O Pensador” is a copyrighted work.

However, as we work to answer that question, we are immediately struck by the difficulty of identifying the creator of the statuette. If, officially, this figurine is of Chokwe origin, its creator is, in fact, not known.

We find ourselves obliged to consider that “O Pensador” is an orphan work of Chokwe origin. In this sense, article 73 of the referred law provides that the term of the economic rights of the copyright owner for orphan works expires 70 years after the work has been lawfully made available to the public.

We know that the statuette was made available in 1936, almost 90 years ago, so we can safely consider that “O Pensador” is an artwork in the public domain and, as a matter of fact, freely available for reproduction. As a result, the copyright law shall not be a legitimate ground for opposing a trademark application.

With regard to trademark protection, article 31 of Angolan Law No. 3/92 of February 28, 1992, on Industrial Property, provides that trademarks are “any material signs that are used to distinguish the products or services of any enterprise”.