By Jerameel Kevins Owuor Odhiambo
The global film industry generated over $99 billion in revenue in 2023, with streaming platforms and syndication deals creating unprecedented opportunities for content monetization long after initial production wraps. Yet in Kenya, a troubling pattern persists: production houses continue to profit indefinitely from films and television shows while actors receive nothing beyond their initial payment, effectively severing them from the ongoing commercial exploitation of their creative labor. This disparity isn’t merely an economic injustice; it represents a fundamental misunderstanding of intellectual property rights in performance art. An actor’s face, voice, and embodied interpretation constitute a unique form of intellectual property, as distinctive and valuable as a songwriter’s melody or a novelist’s manuscript. When a production house sells a film to international markets, licenses it to streaming platforms, or broadcasts reruns on television, they are continuously monetizing the actor’s intellectual contribution without compensation, a practice that would be unthinkable in music, literature, or visual arts where residual rights are considered sacrosanct.
The concept of residuals emerged in Hollywood during the 1950s and 1960s precisely because industry stakeholders recognized that performers create enduring value that transcates a single transaction. When actors negotiate their contracts, they are not selling their performance outright like a commodity; they are licensing their intellectual property for specific uses, with the understanding that additional uses require additional compensation. This principle is enshrined in guilds and unions worldwide, the Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA) in the United States, Equity in the United Kingdom, and similar organizations across Europe, Australia, and increasingly in Asia. These frameworks acknowledge that every time a performance is broadcast, streamed, or sold, the production house is extracting renewed commercial value from the actor’s original creative work. The absence of such protections in Kenya doesn’t reflect a different economic reality; it reflects an incomplete legal framework that has failed to keep pace with international standards of intellectual property protection, leaving Kenyan actors vulnerable to exploitation in an increasingly globalized content marketplace.
From an intellectual property perspective, an actor’s performance meets every criterion for protected creative work under copyright law: it is original, fixed in a tangible medium, and represents a unique creative expression. Just as a photographer retains rights to their images even after selling prints, or a musician earns royalties each time their song is played publicly, an actor’s embodied performance should generate ongoing compensation tied to its commercial exploitation. The argument becomes even more compelling when considering personality rights and publicity rights; legal concepts that recognize an individual’s right to control the commercial use of their identity, including their face, voice, and likeness. When a Kenyan film is sold to Netflix, broadcast on international television networks, or distributed in foreign markets, the actors’ faces become the marketing material, the recognizable draw that attracts audiences. These actors are not merely labor inputs in a production process; they are the product itself, and under established intellectual property doctrines, they should maintain economic rights over how their image and performance are commercially exploited across different territories and distribution channels.
The current system in Kenya effectively treats actors as work-for-hire employees whose creative contributions are entirely subsumed by the production house upon payment of their initial fee, a model more appropriate for industrial manufacturing than creative industries. This approach fundamentally mischaracterizes the nature of performance as intellectual property and creates perverse incentives that undermine the long-term sustainability of Kenya’s creative sector. When production houses can profit indefinitely from an actor’s work without sharing those returns, they accumulate capital while the creative talent remains economically precarious, unable to build wealth from their artistic contributions. This wealth concentration is particularly problematic in developing creative economies where actors often work multiple jobs to sustain their craft, and where the absence of residual income prevents the professionalization of the industry. Moreover, this system creates information asymmetries where production houses have every incentive to downplay a film’s commercial potential during initial negotiations, knowing that actors have no claim to future revenues regardless of how successful the project becomes a dynamic that would be recognized as unconscionable in any other intellectual property context.
International precedent overwhelmingly supports the establishment of residual and royalty systems as essential components of a fair and functional creative economy. The European Union’s Copyright Directive includes provisions for proportionate remuneration, ensuring that authors and performers share in the success of their works throughout the exploitation chain. In South Korea, the phenomenal growth of the Korean Wave (Hallyu) has been accompanied by increasingly sophisticated actor compensation structures that include profit participation and residuals, recognizing that investing in talent creates long-term value for the entire industry. Even in neighboring markets like South Africa, the industry has begun implementing residual frameworks through collective bargaining agreements, acknowledging that sustainable creative industries require equitable revenue distribution. These international models demonstrate that residual systems don’t stifle production or reduce content creation; instead, they professionalize the industry, attract better talent, incentivize quality over quantity, and create the economic stability necessary for actors to dedicate themselves fully to their craft, ultimately elevating the entire industry’s output and international competitiveness.
The urgency for reform becomes particularly acute when considering cross-border exploitation of Kenyan content in the digital age. When a Kenyan film appears on global streaming platforms accessible across hundreds of countries, or when it’s broadcast on African satellite networks reaching dozens of territories, the commercial value multiplies exponentially yet under current practices, actors see none of this expanded revenue. This creates a colonial dynamic where Kenyan creative labor is extracted, processed, and monetized by corporate entities while the creators themselves remain economically marginalized. The absence of usage fees for international sales is especially indefensible from an intellectual property standpoint: if a production house can negotiate separate licensing fees for different territories based on market size and potential revenue, surely the actors whose performances enable those sales deserve proportionate compensation. The international licensing of Kenyan content represents the commercialization of Kenyan faces, voices, and creative expressions in foreign markets, and personality rights doctrine clearly establishes that individuals should control and benefit from such commercial exploitation of their identity across jurisdictions.
What needs to happen is comprehensive legal reform that recognizes performance as intellectual property and establishes mandatory minimum standards for residual and royalty payments in Kenya’s creative industries. First, the Copyright Act should be amended to explicitly include performers’ economic rights in the ongoing exploitation of their recorded performances, with provisions for residual payments triggered by specific uses: reruns on broadcast television, licensing to streaming platforms, international sales, and home video distribution. Second, industry-standard contracts should be developed potentially through collaboration between the Kenya Film Commission, actors’ associations, and production houses that establish transparent formulas for calculating residuals based on distribution method, territory, and revenue generated. Third, a collective rights management organization should be established specifically for audiovisual performers, similar to music collecting societies like MCSK, to track usage, collect payments, and distribute residuals efficiently, particularly for international exploitation where individual actors cannot feasibly monitor their work’s distribution. Fourth, legislation should mandate usage fees for international sales that compensate actors separately for each territory where their image and performance are commercially exploited, calculated as a percentage of licensing fees received by production houses.
The implementation of such reforms would require transitional provisions that phase in requirements over several years, allowing the industry to adapt while protecting existing investments. However, the moral, legal, and economic case for change is overwhelming and rooted in fundamental principles of intellectual property law that Kenya already recognizes in other creative domains. Kenyan actors are not asking for charity or special treatment; they are demanding recognition of internationally accepted intellectual property rights that acknowledge performance as creative work deserving of ongoing compensation tied to ongoing commercial exploitation. The current system doesn’t just exploit individual actors it systematically undermines Kenya’s creative economy by preventing wealth accumulation among creative talent, discouraging professionalization, and perpetuating a colonial extractive relationship between capital and creative labor. If Kenya aspires to build a world-class film and television industry that can compete internationally, attract investment, and tell authentic Kenyan stories to global audiences, it must begin by respecting the intellectual property rights of its performers and ensuring that those who create value share in the prosperity their work generates. The conversation must shift from whether actors deserve residuals to how quickly Kenya can implement international best practices that recognize performance as the distinctive intellectual property it has always been.
The writer is a legal researcher.
Suleiman Mbatiah