When a concert organizer pays an artiste to do a show, what he pays for is a LIVE APPEARANCE of that artiste and not A LICENCE FOR PUBLIC PERFORMANCE OF COMPOSITIONS. The organizer pays the artiste for appearing live to the public at their event and for rendering songs to the public. This fee does not cover interests of other people who may have copyright interests in the musical works that the artiste may perform; such other people may include the music publisher, music arranger/producer, songwriters and composers.
If the artiste would not be using a live band, that is, using a DJ, thereby necessitating the public performance of a CD (sound recording), then the copyright interests of whoever owns copyright in the recordings would not have been taken care of too. This would most likely be the record company.
As regards the copyright interests the artiste may have in the songs (whether or not he has a valid claim to all the copyright interests in the works), the artiste, being a member Copyright Society of Nigeria (COSON), has granted COSON the exclusive right to receive such monies/royalties on his behalf; therefore, any payments under this head would be payable to COSON and not the artiste.
There are about four possible scenarios:
a. The artiste is engaged for a non-musical live appearance: COSON has no interest in this.
b. The artiste is engaged for a musical live appearance: COSON has an interest.
c. The artiste is not engaged at all, but music associated with him will be performed live by some other person or groups: COSON has an interest.
d. The artiste is not engaged at all but a DJ would play music associated with the artiste: COSON has an interest.
It would be unrealistic to expect concert organizers to grapple with all the technicalities and all the rights and all the sharing formulas that may be applicable to every song that would be played at their event. This is the responsibility of COSON; therefore the worldwide practice that concert organizers pay artistes and performers for their live appearance while the copyright issues associated with such performances are left to a government approved body to tackle. The monies due to all copyright stakeholders are paid in bulk to COSON and COSON does the sharing and payment to all stakeholders.
When a concert takes place and fees for the live appearances are taken care of but all copyright interests in the performance are not taken care of (an appropriate license has not been applied for and received), copyright infringements (contrary to the copyright Act, 2004) has taken place and the organizers would be liable for the illegality.
Justin Ige is a Legal Practitioner. (mailjustinige@gmail.com, 08023897112 Creativelegal.blogspot.com)This article contains general information only and is not intended to replace legal counsel.
Wednesday, May 11, 2011
SONGWRITING AND THE LAW (3)
The songwriter is the author of a song and the owner of copyright in the song. He retains legal control of such a song unless he transfers the copyright to someone else. There are several methods through which the song may be exploited; such exploitation not to occur without the authorization of the songwriter – any such dealing or use of the songwriter’s songs would be illegal and the songwriter may proceed to enforce his rights against any such unauthorized user. What then are the processes through which people other than the songwriter may legally use or exploit the song? The songwriter may transfer his copyright in the song to another either by assignment or licensing. These are the only methods through which the song may be exploited legally by another person. By law, an assignment must be in writing while a license need not be in writing. It is impossible to go into the details of these in this article but it is important to note that an assignment transfers ownership of copyright in the song while a license simply permits the use of the song.
One basic way for a songwriter to have his songs exploited and thus earn from them is to sign on to a music publishing company. The songwriter grants rights either by assignment or licensing to the company and the company in turn has the obligation of promoting the songs within the industry and finding opportunities for the song. It is the responsibility of the publisher to find artistes and musicians who would perform and record the songs; record labels, movie makers, television and radio producers, advertising agencies and other users who would use the songs. It is also the responsibility of the music publishing company to collect income from all users secured by it. It is however uncommon to find in Nigeria, dedicated music publishing companies. This is because the music industry has been more of a ‘jungle’ than a structured industry. It is important to recall the developments in the Nigerian music industry which now allows for the establishment of dedicated music publishing companies. This is primarily the establishment and the approval of the Copyright Society of Nigeria Ltd/Gte (COSON) as a Collective Management Organization earlier this year. This is an opportunity that is now ripe for seizing in this country – the enabling environment has now been laid. What we have largely had are record companies and Do-it-yourself (DIY) artistes who self publish. The standard profit sharing formula on published songs between songwriters and publishers is 50/50 but an agreement stipulating otherwise can be entered into. Publishing companies in Nigeria need to join COSON to fully tap into the opportunities now available.
A record company exploits a song by recording the song and exploiting the recording of the song through mediums such as sale of CDs, digital downloads, public performances, and the grant of master use or synchronization rights for movies. All such exploitations should generate income for the songwriter, whether or not he self performed the songs in the recordings. They should generate a continuous flow of income in the form of royalties for the songwriter. The Nigerian music industry has now developed to a stage where all these sources of income can be tapped, where they are no longer theoretical possibilities. It is therefore the responsibility of the serious songwriter to ensure that he signs proper legal agreements for the use of his songs to ensure that his extended interests are covered and protected. All the possible exploitation avenues are to be considered in the preparation of these agreements, and indeed in their execution, whether they are music publishing agreements or record contracts, or any other contract whatsoever dealing with the songwriter, his career or his songs.
Justin Ige is a Legal Practitioner. (mailjustinige@gmail.com, 08023897112 Creativelegal.blogspot.com)This article contains general information only and is not intended to replace legal counsel.
One basic way for a songwriter to have his songs exploited and thus earn from them is to sign on to a music publishing company. The songwriter grants rights either by assignment or licensing to the company and the company in turn has the obligation of promoting the songs within the industry and finding opportunities for the song. It is the responsibility of the publisher to find artistes and musicians who would perform and record the songs; record labels, movie makers, television and radio producers, advertising agencies and other users who would use the songs. It is also the responsibility of the music publishing company to collect income from all users secured by it. It is however uncommon to find in Nigeria, dedicated music publishing companies. This is because the music industry has been more of a ‘jungle’ than a structured industry. It is important to recall the developments in the Nigerian music industry which now allows for the establishment of dedicated music publishing companies. This is primarily the establishment and the approval of the Copyright Society of Nigeria Ltd/Gte (COSON) as a Collective Management Organization earlier this year. This is an opportunity that is now ripe for seizing in this country – the enabling environment has now been laid. What we have largely had are record companies and Do-it-yourself (DIY) artistes who self publish. The standard profit sharing formula on published songs between songwriters and publishers is 50/50 but an agreement stipulating otherwise can be entered into. Publishing companies in Nigeria need to join COSON to fully tap into the opportunities now available.
A record company exploits a song by recording the song and exploiting the recording of the song through mediums such as sale of CDs, digital downloads, public performances, and the grant of master use or synchronization rights for movies. All such exploitations should generate income for the songwriter, whether or not he self performed the songs in the recordings. They should generate a continuous flow of income in the form of royalties for the songwriter. The Nigerian music industry has now developed to a stage where all these sources of income can be tapped, where they are no longer theoretical possibilities. It is therefore the responsibility of the serious songwriter to ensure that he signs proper legal agreements for the use of his songs to ensure that his extended interests are covered and protected. All the possible exploitation avenues are to be considered in the preparation of these agreements, and indeed in their execution, whether they are music publishing agreements or record contracts, or any other contract whatsoever dealing with the songwriter, his career or his songs.
Justin Ige is a Legal Practitioner. (mailjustinige@gmail.com, 08023897112 Creativelegal.blogspot.com)This article contains general information only and is not intended to replace legal counsel.
GETTING THE BEST OUT OF YOUR SOUNDTRACKS (2)
To get the best out of soundtracks, the first thing a soundtrack maker would have to do is to join the Copyright Society of Nigeria (COSON). This is because they are the only organization in Nigeria empowered by law and recognized by the government to collect and distribute royalties for the use of soundtracks to the makers of soundtracks and other persons as may be required. They have the responsibility of collecting these royalties from advertising agencies who may have used these soundtracks in radio and television commercials, movie makers, television and radio producers etc. These mediums are potentially huge sources of income for the makers of soundtracks. Through them, a continuous flow of income could be gotten by a soundtrack maker. The catch however is that any maker who does not join COSON would not be able to receive these royalties. However, where COSON receives money on behalf such persons, or receives money that should accrue to such person, COSON would be obligated to keep such monies in a holding account for a duration of seven years during which such person, if he joins COSON, would be able to receive his money. This is the provision of the law. COSON would not be obligated to keep the money and wait for such soundtrack maker for a period longer than the seven years provided for under the law.
Could it then be that once a soundtrack maker joins COSON he has done all that is necessary under the law to be able to fully get the best out of his soundtracks? The answer is no! The maker, as a member of COSON, has the responsibility of updating and informing COSON of his works. He also has the responsibility of informing the organization of all uses of his works, authorized and unauthorized, as far as possible. It is then the responsibility of COSON to proceed in collecting the royalties due from the authorized users and to defend the rights of the soundtrack makers in respect of the unauthorized users. The organization is even empowered to go as far suing the unauthorized user on behalf of the soundtrack maker at absolutely no cost to soundtrack maker.
There are still other things which a soundtrack maker would be expected to do legally to ensure that he gets the very best out of his soundtracks in today’s Nigeria. COSON is bound to honor agreements. Thus the distribution of royalties from the exploitation of soundtracks would be subject to the agreements that the soundtrack makers themselves have entered into with others. There is no gainsaying that these agreements can be of a highly technical nature but it very worthy to note that in the history of the Nigerian entertainment industry, there has been no such time that these agreements have been so important. There has been no such time when careless attitudes in respect of these agreements could have had such terribly damaging results. It is therefore important, more than ever for every soundtrack maker to ensure that he properly consults a lawyer before entering OR NOT entering into an agreement or contract in respect of his soundtracks. This is because whether or not a written contract was entered into, the law will take effect based on the contract that was signed or on the fact that no contract was signed. That no contract was signed in itself has legal implications which COSON would be bound to respect, and to collect and distribute royalties in accordance with. This point is not important only to the maker of the soundtrack but also to all users of soundtracks. If makers of soundtracks, movie producers, advertising agencies, and radio and television producers do not treat this point with care, they may find themselves where they would rather not be as far as the use and exploitation of soundtracks is concerned under the Nigerian entertainment law.
Justin Ige is a Legal Practitioner. (mailjustinige@gmail.com, 08023897112 Creativelegal.blogspot.com)This article contains general information only and is not intended to replace legal counsel.
Could it then be that once a soundtrack maker joins COSON he has done all that is necessary under the law to be able to fully get the best out of his soundtracks? The answer is no! The maker, as a member of COSON, has the responsibility of updating and informing COSON of his works. He also has the responsibility of informing the organization of all uses of his works, authorized and unauthorized, as far as possible. It is then the responsibility of COSON to proceed in collecting the royalties due from the authorized users and to defend the rights of the soundtrack makers in respect of the unauthorized users. The organization is even empowered to go as far suing the unauthorized user on behalf of the soundtrack maker at absolutely no cost to soundtrack maker.
There are still other things which a soundtrack maker would be expected to do legally to ensure that he gets the very best out of his soundtracks in today’s Nigeria. COSON is bound to honor agreements. Thus the distribution of royalties from the exploitation of soundtracks would be subject to the agreements that the soundtrack makers themselves have entered into with others. There is no gainsaying that these agreements can be of a highly technical nature but it very worthy to note that in the history of the Nigerian entertainment industry, there has been no such time that these agreements have been so important. There has been no such time when careless attitudes in respect of these agreements could have had such terribly damaging results. It is therefore important, more than ever for every soundtrack maker to ensure that he properly consults a lawyer before entering OR NOT entering into an agreement or contract in respect of his soundtracks. This is because whether or not a written contract was entered into, the law will take effect based on the contract that was signed or on the fact that no contract was signed. That no contract was signed in itself has legal implications which COSON would be bound to respect, and to collect and distribute royalties in accordance with. This point is not important only to the maker of the soundtrack but also to all users of soundtracks. If makers of soundtracks, movie producers, advertising agencies, and radio and television producers do not treat this point with care, they may find themselves where they would rather not be as far as the use and exploitation of soundtracks is concerned under the Nigerian entertainment law.
Justin Ige is a Legal Practitioner. (mailjustinige@gmail.com, 08023897112 Creativelegal.blogspot.com)This article contains general information only and is not intended to replace legal counsel.
GETTING THE BEST OUT OF YOUR SOUNDTRACKS (1)
Nigerian movie soundtrack makers have not been privileged to make the best out of their soundtracks. This has not been their fault; if blame is to be apportioned, the music industry would take the blame. More often than not, they get stipends from their work; even when they think they are being properly paid, they get far less than they should have got. This situation is not peculiar to the movie industry alone. This is the situation as far as television series and soaps, and general television and radio programs are concerned. As a matter of fact, many times, makers of music that get used as soundtracks don’t even get paid at all; sometimes, they are not even acknowledged – movie and television producers simply choose a song or soundtrack which they like and feel suitable for their production, then proceed to use same as they deem fit and without any recourse to the maker of such music. This situation is so bad that songs and instrumental musical compositions are indiscriminately used for radio jingles and adverts as well.
To compound this most unfortunate situation, the makers of soundtracks themselves fail to take adequate measures to protect their interests and investments legally; they are also very much ignorant of their rights. The truth however is that until May, 2010, even if they were aware of their rights and they took steps to protect those rights legally, their knowledge and effort may not have been able to amount to much. This is because the rights of makers of soundtracks are basically about the copyright in those works. Before May, 2010, the Nigerian government had not taken the bold step of laying the foundation and establishing the enabling environment for the collective administration of copyright. However with the approval of an organization for the copyright administration in Nigeria, that organization being Copyright Society of Nigeria (COSON), the stage is now set for makers of soundtracks to make the best out of their soundtracks provided they make the effort to do all that is required under the law to protect their interests.
For this purpose, soundtracks would be looked at from two categories and perspectives. First, music may be made specifically as a soundtrack, that is, to specifically express the dramatic moods that a movie or television program may have. Second, music that may not have been made for this purpose, but may have been made rather as an independent song or instrumental composition which has been determined applicable for use as a soundtrack and thereupon used in such manner by movie, radio or television producers. In order to fully understand how a music or soundtrack maker may protect his rights and position himself legally to take full advantage of the new structure the government has put in place, it is important to clearly identify which of these two categories the maker may belong at every relevant time or transaction. This identification, amongst other things, would help to determine his rights under the law, his options and what legal steps he ought to take to serve his best interests.
Some of these possible scenarios would be examined later in some detail, and advisable steps would also be proffered but it is helpful to state at this point that the soundtrack maker, whether he belongs to the former or later category, would have to be a member of the Copyright Society of Nigeria (COSON) to be able to fully benefit from the efforts of the government and his works. It is only upon taking that first action that other steps may be fully relevant or may have the most and desired impact so as to be able to get the very best out of ones soundtracks.
- To be continued
Justin Ige is a Legal Practitioner. (mailjustinige@gmail.com, 08023897112 Creativelegal.blogspot.com)This article contains general information only and is not intended to replace legal counsel.
To compound this most unfortunate situation, the makers of soundtracks themselves fail to take adequate measures to protect their interests and investments legally; they are also very much ignorant of their rights. The truth however is that until May, 2010, even if they were aware of their rights and they took steps to protect those rights legally, their knowledge and effort may not have been able to amount to much. This is because the rights of makers of soundtracks are basically about the copyright in those works. Before May, 2010, the Nigerian government had not taken the bold step of laying the foundation and establishing the enabling environment for the collective administration of copyright. However with the approval of an organization for the copyright administration in Nigeria, that organization being Copyright Society of Nigeria (COSON), the stage is now set for makers of soundtracks to make the best out of their soundtracks provided they make the effort to do all that is required under the law to protect their interests.
For this purpose, soundtracks would be looked at from two categories and perspectives. First, music may be made specifically as a soundtrack, that is, to specifically express the dramatic moods that a movie or television program may have. Second, music that may not have been made for this purpose, but may have been made rather as an independent song or instrumental composition which has been determined applicable for use as a soundtrack and thereupon used in such manner by movie, radio or television producers. In order to fully understand how a music or soundtrack maker may protect his rights and position himself legally to take full advantage of the new structure the government has put in place, it is important to clearly identify which of these two categories the maker may belong at every relevant time or transaction. This identification, amongst other things, would help to determine his rights under the law, his options and what legal steps he ought to take to serve his best interests.
Some of these possible scenarios would be examined later in some detail, and advisable steps would also be proffered but it is helpful to state at this point that the soundtrack maker, whether he belongs to the former or later category, would have to be a member of the Copyright Society of Nigeria (COSON) to be able to fully benefit from the efforts of the government and his works. It is only upon taking that first action that other steps may be fully relevant or may have the most and desired impact so as to be able to get the very best out of ones soundtracks.
- To be continued
Justin Ige is a Legal Practitioner. (mailjustinige@gmail.com, 08023897112 Creativelegal.blogspot.com)This article contains general information only and is not intended to replace legal counsel.
WHAT IF I WERE D’BANJ?
What if I were D’Banj, the Koko master; or DJ Zeez, the 04kasibe crooner? What if I wanted to make more money from my creativity? What if I wanted to stop others from making money from my creativity without any recourse to me, would I be greedy or simply industrious? Industrious, I would say.
Say, Coca-cola took the phrase “what is the Koko?” or simply, the word, “Koko” and used it in an advert? What if, instead, the advert read something like – drink coca-cola and your ori must 4kasibe? Would a D’Banj or DJ Zeez, respectively, be able to lay any claims? Would a “coca-cola” be liable? Maybe another artiste started using these expressions in their own songs; maybe it’s a movie producer or some other person or company taking “undue” advantage of others’ creativity? Maybe we’ll just call them copycats or better still, cats infringing on copyrights.
It is not unknown that the expression, “let’s go there!” is a product of 9ice’s creativity. This is not to say those words have never been used or that they never existed before 9ice used it in his music. It is also not unknown that the expression has been used severally, after he popularized it, by others with or without commercial exploitative intent. If it is true, and it is, that more often that not, these creative minds do not create these words and expression and can therefore not be called creators, what rights could they possibly have over those expressions? What could they have done to put them in a position of advantage? It is very important to note that the peculiarities of each and every case would determine the answer to these questions. The angle of law from which the issue is viewed would also determine the answers.
I however state categorically with regard to these examples and similar circumstances that as a result of the way these artistes have used these expressions they have achieved secondary meaning which is distinctive and without which these same expressions would lack the value they now possess in the world of commerce and advertisements. The use of these expressions immediately causes the mind of the audience to be directed at their favorite artiste, and an immediate connection is made between the artiste and the advertised product. The product then registers in the mind of the audience more quickly and more effectively as a result of the connection. The use of such expressions in adverts automatically makes such advert more effective as the adverts are more easily noticed and remembered thereby creating a longer lasting impression. It could also create a mild and subconscious; or a bold and conscious impression of endorsement of the product by the artiste in the mind of the audience. All these add value to the image of the product and facilitate better patronage eventually. The possibility of the artiste getting financial returns from this added value is what this article is about.
Added value or no added value, what rights do the artistes have? The expressions being their creations or not, what rights or interests can they claim legally? The artistes may be clothed with the legal term, “authors”, having written the expressions as lyrics of songs; in other words, assuming the status of authors of a literary work, this is one legal perspective to look at it. However, are these arguments enough to grant the artistes rights under the law, and to make “unauthorized” users liable? These and these alone, as arguments, could definitely be weak ones but there are other arguments (depending on the peculiarities of each case) to which these would certainly lend some very useful weight. On the defensive, arguments of fair use or fair dealing can equally lend some weight to other arguments.
There are, however, actions which a creative mind can certainly take under the law to solidify his position and to protect his interests. These actions will be looked at but without any doubts, it is worth saying that there is a lot of room for growth and development in our creative industries.
When a ‘D’banj’ coins a phrase or word and uses it in his music, the expressions become popular as a direct result of the use. When these expressions become popular, they immediately become signatures that identify and represent the artiste, his music, his image and what he stands for. They identify the services the artiste renders and these very well includes endorsement and advertising services. They distinguish the artiste and his services from other artistes, his competitors.
With a well managed brand and image, the endorsement of products by artistes can be of immense value to the advertisers. An effective way of doing this is to use the phrases or coined words in adverts or product representations thereby creating a connection between the artiste and the advertised product. By so doing, the advertisers benefit from the goodwill of the artiste. This method of exploitation of goodwill can be easily utilized without direct reference to the artistes; and the difficulty in ascertaining or claiming any rights in these expressions makes the artiste more vulnerable.
In my opinion, the best and most effective way which an artiste has is to look for solution in the law of trademarks. He may also rely on some of the aforesaid arguments to strengthen whatever solution may be found in the law of trademarks. To effectively utilize the provisions of the trademarks law might imply that the artiste deliberately determines what words, slangs or expressions he wants to dispose to this form of exploitation in the world of commerce, advertisements and endorsement. He would need to design and utilize the expressions in such a way as to be covered as a trademark. He would then need to register them so as to be protected. He may do this only if he is still in the process of writing the music. If he has already written the music, finished production and released the music, he is left with the alternative of post production evaluation. He can examine the expressions, which may have now attained popularity to find if they are eligible for registration. If he finds that they are eligible, he may then proceed to register.
The tests the expressions need be subjected to include the following:
1. Whether the expressions are a visible sign as opposed to sounds or smells. Most of these expressions can very well be recognized as visible signs. For examples, ‘4kasibe’, ‘kokolet’, ‘free me now!’
2. Whether the expressions are distinctive. Are they capable of distinguishing the services of D’banj or Mo’ hits music enterprise from Mo’cheddah of Knighthouse entertainment enterprise? Are they capable of distinguishing D’banj from DJ Zeez? An expression may be inherently distinctive if it is fanciful or arbitrary. An example of this can be found in ‘kokolet’ or more recently, ‘mamalet’. Expressions such as ‘let’s go there!’ or ‘free me now!’ are not inherently distinctive as they are not arbitrary or fanciful expressions but they can be said to have acquired distinctiveness through use.
3. Whether the expressions are capable of misleading the public, especially in a way that might create unfair competition or give the artiste an unfair advantage over other artistes.
4. Whether the expressions are contrary to public order or morality.
If it is determined that the expressions pass these tests, the artiste may then proceed to have the expressions registered.
An infringement of the right of the artiste in these registered expressions occurs when any person who uses an expression so closely resembling the registered expressions as to likely deceive or cause confusion in the cause of trade. It is not the differences between the registered expressions and the used expressions that count but their similarity. The similarity may be based on how the expressions look on paper or even how they sound being pronounced. Once it can be taken that there is so much similarity that the used expression can deceive the audience and direct the mind of the audience to the artiste, an infringement of the artiste’s right has occurred.
An artiste, whose right has been thus infringed upon, can get from the court, a couple of reliefs. He may be awarded a sum of money in the form of damages, the court may also order that the infringement be discontinued, that is, the use of the infringing expression be stopped. Depending on the facts of each case and proof adduced, the artiste may enjoy the said reliefs and more.
Justin Ige is a Legal Practitioner. (mailjustinige@gmail.com)
This article contains general information only and is not intended to replace legal counsel.
Say, Coca-cola took the phrase “what is the Koko?” or simply, the word, “Koko” and used it in an advert? What if, instead, the advert read something like – drink coca-cola and your ori must 4kasibe? Would a D’Banj or DJ Zeez, respectively, be able to lay any claims? Would a “coca-cola” be liable? Maybe another artiste started using these expressions in their own songs; maybe it’s a movie producer or some other person or company taking “undue” advantage of others’ creativity? Maybe we’ll just call them copycats or better still, cats infringing on copyrights.
It is not unknown that the expression, “let’s go there!” is a product of 9ice’s creativity. This is not to say those words have never been used or that they never existed before 9ice used it in his music. It is also not unknown that the expression has been used severally, after he popularized it, by others with or without commercial exploitative intent. If it is true, and it is, that more often that not, these creative minds do not create these words and expression and can therefore not be called creators, what rights could they possibly have over those expressions? What could they have done to put them in a position of advantage? It is very important to note that the peculiarities of each and every case would determine the answer to these questions. The angle of law from which the issue is viewed would also determine the answers.
I however state categorically with regard to these examples and similar circumstances that as a result of the way these artistes have used these expressions they have achieved secondary meaning which is distinctive and without which these same expressions would lack the value they now possess in the world of commerce and advertisements. The use of these expressions immediately causes the mind of the audience to be directed at their favorite artiste, and an immediate connection is made between the artiste and the advertised product. The product then registers in the mind of the audience more quickly and more effectively as a result of the connection. The use of such expressions in adverts automatically makes such advert more effective as the adverts are more easily noticed and remembered thereby creating a longer lasting impression. It could also create a mild and subconscious; or a bold and conscious impression of endorsement of the product by the artiste in the mind of the audience. All these add value to the image of the product and facilitate better patronage eventually. The possibility of the artiste getting financial returns from this added value is what this article is about.
Added value or no added value, what rights do the artistes have? The expressions being their creations or not, what rights or interests can they claim legally? The artistes may be clothed with the legal term, “authors”, having written the expressions as lyrics of songs; in other words, assuming the status of authors of a literary work, this is one legal perspective to look at it. However, are these arguments enough to grant the artistes rights under the law, and to make “unauthorized” users liable? These and these alone, as arguments, could definitely be weak ones but there are other arguments (depending on the peculiarities of each case) to which these would certainly lend some very useful weight. On the defensive, arguments of fair use or fair dealing can equally lend some weight to other arguments.
There are, however, actions which a creative mind can certainly take under the law to solidify his position and to protect his interests. These actions will be looked at but without any doubts, it is worth saying that there is a lot of room for growth and development in our creative industries.
When a ‘D’banj’ coins a phrase or word and uses it in his music, the expressions become popular as a direct result of the use. When these expressions become popular, they immediately become signatures that identify and represent the artiste, his music, his image and what he stands for. They identify the services the artiste renders and these very well includes endorsement and advertising services. They distinguish the artiste and his services from other artistes, his competitors.
With a well managed brand and image, the endorsement of products by artistes can be of immense value to the advertisers. An effective way of doing this is to use the phrases or coined words in adverts or product representations thereby creating a connection between the artiste and the advertised product. By so doing, the advertisers benefit from the goodwill of the artiste. This method of exploitation of goodwill can be easily utilized without direct reference to the artistes; and the difficulty in ascertaining or claiming any rights in these expressions makes the artiste more vulnerable.
In my opinion, the best and most effective way which an artiste has is to look for solution in the law of trademarks. He may also rely on some of the aforesaid arguments to strengthen whatever solution may be found in the law of trademarks. To effectively utilize the provisions of the trademarks law might imply that the artiste deliberately determines what words, slangs or expressions he wants to dispose to this form of exploitation in the world of commerce, advertisements and endorsement. He would need to design and utilize the expressions in such a way as to be covered as a trademark. He would then need to register them so as to be protected. He may do this only if he is still in the process of writing the music. If he has already written the music, finished production and released the music, he is left with the alternative of post production evaluation. He can examine the expressions, which may have now attained popularity to find if they are eligible for registration. If he finds that they are eligible, he may then proceed to register.
The tests the expressions need be subjected to include the following:
1. Whether the expressions are a visible sign as opposed to sounds or smells. Most of these expressions can very well be recognized as visible signs. For examples, ‘4kasibe’, ‘kokolet’, ‘free me now!’
2. Whether the expressions are distinctive. Are they capable of distinguishing the services of D’banj or Mo’ hits music enterprise from Mo’cheddah of Knighthouse entertainment enterprise? Are they capable of distinguishing D’banj from DJ Zeez? An expression may be inherently distinctive if it is fanciful or arbitrary. An example of this can be found in ‘kokolet’ or more recently, ‘mamalet’. Expressions such as ‘let’s go there!’ or ‘free me now!’ are not inherently distinctive as they are not arbitrary or fanciful expressions but they can be said to have acquired distinctiveness through use.
3. Whether the expressions are capable of misleading the public, especially in a way that might create unfair competition or give the artiste an unfair advantage over other artistes.
4. Whether the expressions are contrary to public order or morality.
If it is determined that the expressions pass these tests, the artiste may then proceed to have the expressions registered.
An infringement of the right of the artiste in these registered expressions occurs when any person who uses an expression so closely resembling the registered expressions as to likely deceive or cause confusion in the cause of trade. It is not the differences between the registered expressions and the used expressions that count but their similarity. The similarity may be based on how the expressions look on paper or even how they sound being pronounced. Once it can be taken that there is so much similarity that the used expression can deceive the audience and direct the mind of the audience to the artiste, an infringement of the artiste’s right has occurred.
An artiste, whose right has been thus infringed upon, can get from the court, a couple of reliefs. He may be awarded a sum of money in the form of damages, the court may also order that the infringement be discontinued, that is, the use of the infringing expression be stopped. Depending on the facts of each case and proof adduced, the artiste may enjoy the said reliefs and more.
Justin Ige is a Legal Practitioner. (mailjustinige@gmail.com)
This article contains general information only and is not intended to replace legal counsel.
Monday, January 31, 2011
SONGWRITING AND THE LAW (2): Getting the best out of your songs in Nigeria.
It is not uncommon to attribute the many problems of Nigeria to the government. The problems facing the Nigerian entertainment industry has thus been attributed to the government over and over again. It is not my intention to completely absolve the government but it would be absolutely unfair to say that the government has ignored the plights of the entertainment industry completely or that the government has not taken steps to protect the interests of musicians and entertainers, songwriters inclusive. In all industries, the basic role of the government is to provide the enabling environment for growth and development. Upon the performance of this basic role, it would then be left to the industry stakeholders to work in that enabling environment and through the structures which the government has provided in order to actualize the much desired growth. Government cannot and is not expected to do everything.
What then has the Nigerian government done to provide the enabling environment for the growth of the Nigerian entertainment industry? What structures have been put in place? I might as well mention at this point, though it is not the purpose of this article, that the Nigerian government has just provided a two hundred million dollar fund for the use of the industry. This has been mentioned through different media but was particularly confirmed by Mr. Ben Murray-Bruce, president of the Silverbed group, at the recently concluded Nigeria Music Video Awards (NMVA). More importantly, however, is that we have laws designed to protect the interest of songwriters; and in terms of providing structures, the Federal government, in May 2010, approved the Copyright Society of Nigeria Ltd/Gte (COSON) to look after the interests of Songwriters, amongst others. Many songwriters are unaware of this development and neither are they aware of how they may combine the provisions of the relevant Nigerian laws with the COSON structure to actualize their dreams and get the full reward for their compositions.
It is the responsibility of songwriters or aspiring songwriters to seek out information on how they may fully avail themselves of the opportunities in Nigeria, and to proceed to utilize these opportunities rather than sit back and continue to complain that the government has not done anything. What the government has done so far can be immensely beneficial to a songwriter if fully tapped into.
A songwriter writes songs which are often exploited by singers, record companies, movie makers, advertising agencies, etc. It doesn’t matter if the songwriter actually exists in several of these capacities in relation to his songs as is often found in the country, what matters is that the songs are exploited and that the revenue accruing and accruable to the songwriter from these areas ought to get to the songwriter. The summary of how this is to be done is to ensure that formal and proper contracts are signed between the songwriter and his publishing company, record company, singers or any other person who may put those songs to use through one form of exploitation of the other. The songwriter has a responsibility to join COSON and to keep notifying the organization of all his works and all known uses of his works. More details would be provided in further episodes.
Justin Ige is a Legal Practitioner. (mailjustinige@gmail.com, 08023897112 Creativelegal.blogspot.com)This article contains general information only and is not intended to replace legal counsel.
What then has the Nigerian government done to provide the enabling environment for the growth of the Nigerian entertainment industry? What structures have been put in place? I might as well mention at this point, though it is not the purpose of this article, that the Nigerian government has just provided a two hundred million dollar fund for the use of the industry. This has been mentioned through different media but was particularly confirmed by Mr. Ben Murray-Bruce, president of the Silverbed group, at the recently concluded Nigeria Music Video Awards (NMVA). More importantly, however, is that we have laws designed to protect the interest of songwriters; and in terms of providing structures, the Federal government, in May 2010, approved the Copyright Society of Nigeria Ltd/Gte (COSON) to look after the interests of Songwriters, amongst others. Many songwriters are unaware of this development and neither are they aware of how they may combine the provisions of the relevant Nigerian laws with the COSON structure to actualize their dreams and get the full reward for their compositions.
It is the responsibility of songwriters or aspiring songwriters to seek out information on how they may fully avail themselves of the opportunities in Nigeria, and to proceed to utilize these opportunities rather than sit back and continue to complain that the government has not done anything. What the government has done so far can be immensely beneficial to a songwriter if fully tapped into.
A songwriter writes songs which are often exploited by singers, record companies, movie makers, advertising agencies, etc. It doesn’t matter if the songwriter actually exists in several of these capacities in relation to his songs as is often found in the country, what matters is that the songs are exploited and that the revenue accruing and accruable to the songwriter from these areas ought to get to the songwriter. The summary of how this is to be done is to ensure that formal and proper contracts are signed between the songwriter and his publishing company, record company, singers or any other person who may put those songs to use through one form of exploitation of the other. The songwriter has a responsibility to join COSON and to keep notifying the organization of all his works and all known uses of his works. More details would be provided in further episodes.
Justin Ige is a Legal Practitioner. (mailjustinige@gmail.com, 08023897112 Creativelegal.blogspot.com)This article contains general information only and is not intended to replace legal counsel.
Saturday, January 8, 2011
SONGWRITING AND THE LAW (1)
Alright, let’s talk about songwriting and the law. What is the relationship between the art of songwriting and the law? Where do they meet and what is the effect of the law on the art form?
That area of law that deals with songwriting is on a very broad sense known as intellectual property law. This being that songwriting is the result of intellectual effort, and the product of such effort – a form of property. It can be owned just like any other property such as physical properties like cars and jewelry, only that this one is completely intellectual in character.
Intellectual property law has many branches and these include the law of trade marks, patent and designs, copyright. However, that branch of intellectual property law that directly deals with songwriting is copyright law. Copyright law regulates the various issues that come up in the process of writing a song.
Before we go into the details of what copyright actually is and what copyright law is in practical terms, it will be helpful to first identify what song is. What is a song and what are the components or elements of a song? What does a song comprise of? A song can be simply described as words that have been put to music. This means that a song is the combination of words and melody or lyrics and tune.
The interesting thing is that copyright law addresses these two elements of a song both differently as well as a unit. Copyright law administers or recognizes the words of a song as a literary work while it recognizes the melody or tune as a musical work. It recognizes, when both elements come together to form song as a musical work.
Ok before we go too far, what is copyright? And what is copyright law? Copyright is the right to control the doing of certain things in relation to certain forms of intellectual property while copyright law is the combination of the rules guiding the doing of those certain things; these certain things being things such as copying or duplicating, recording, broadcasting, making any cinematograph film in respect thereof and performing in public. Putting this directly against songwriting, one can say that copyright as it relates to songwriting is the right to control the recording of songs, broadcasting of songs, performing the songs in public, making copies of the song, adapting the song etc, while copyright law regulates the doing of all these things.
What the law actually says in respect of certain issues that bother on songwriting would be considered in further episodes but it suffices to mention that songwriting and songwriters are very well considered and provided for under the Nigerian laws and all songwriters and musicians should know what their rights are over their songs, how they can exercise control over their songs and how they can fully utilize and exploit their songs in such a way that would be of economical benefit to them. These are the kind of areas that would be addressed through this platform in further episodes. The law has definitely provided the necessary legal framework. All that is left is for the Nigerian songwriter to understand this framework and be able to best use it to his advantage.
Justin Ige is a Legal Practitioner. (mailjustinige@gmail.com, 08023897112 Creativelegal.blogspot.com)This article contains general information only and is not intended to replace legal counsel.
That area of law that deals with songwriting is on a very broad sense known as intellectual property law. This being that songwriting is the result of intellectual effort, and the product of such effort – a form of property. It can be owned just like any other property such as physical properties like cars and jewelry, only that this one is completely intellectual in character.
Intellectual property law has many branches and these include the law of trade marks, patent and designs, copyright. However, that branch of intellectual property law that directly deals with songwriting is copyright law. Copyright law regulates the various issues that come up in the process of writing a song.
Before we go into the details of what copyright actually is and what copyright law is in practical terms, it will be helpful to first identify what song is. What is a song and what are the components or elements of a song? What does a song comprise of? A song can be simply described as words that have been put to music. This means that a song is the combination of words and melody or lyrics and tune.
The interesting thing is that copyright law addresses these two elements of a song both differently as well as a unit. Copyright law administers or recognizes the words of a song as a literary work while it recognizes the melody or tune as a musical work. It recognizes, when both elements come together to form song as a musical work.
Ok before we go too far, what is copyright? And what is copyright law? Copyright is the right to control the doing of certain things in relation to certain forms of intellectual property while copyright law is the combination of the rules guiding the doing of those certain things; these certain things being things such as copying or duplicating, recording, broadcasting, making any cinematograph film in respect thereof and performing in public. Putting this directly against songwriting, one can say that copyright as it relates to songwriting is the right to control the recording of songs, broadcasting of songs, performing the songs in public, making copies of the song, adapting the song etc, while copyright law regulates the doing of all these things.
What the law actually says in respect of certain issues that bother on songwriting would be considered in further episodes but it suffices to mention that songwriting and songwriters are very well considered and provided for under the Nigerian laws and all songwriters and musicians should know what their rights are over their songs, how they can exercise control over their songs and how they can fully utilize and exploit their songs in such a way that would be of economical benefit to them. These are the kind of areas that would be addressed through this platform in further episodes. The law has definitely provided the necessary legal framework. All that is left is for the Nigerian songwriter to understand this framework and be able to best use it to his advantage.
Justin Ige is a Legal Practitioner. (mailjustinige@gmail.com, 08023897112 Creativelegal.blogspot.com)This article contains general information only and is not intended to replace legal counsel.
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