LAW OF REMIX

I was watching television the other day and I was surprised at what I saw and heard; actually, I was surprised that someone was surprised, and I am sure that by the time I reveal why I was surprised, you would all be surprised that I was surprised – because thinking about it now, I am surprised that I was surprised – I mean, this is Nigeria! Well, I guess that’s why there is all this surprising.

There is so much ignorance about the position of the law on so many things in this country and the entertainment and creative industries are not left out. That is why Mc Loph was surprised. I hope this article, and indeed this column will serve to reduce the level of ignorance so that artistes and all other stakeholders can ensure that they are on the side of the law when they take business decisions and indeed creative decisions too.

Mc Loph was being interviewed on television. He expressed surprise that the family of the late Osita Osadebe had sued him for copyright infringement; after all, he had given the late highlife icon all due respect and credits. The song: Osondi Owendi, was a great highlife hit in the country decades ago. It was such a great hit that some children were even named after the song! I am not joking; I actually have a good friend in a girl that goes by the name: Osondi Owendi. She told me her father had loved the song so much that he named her after it. Interestingly, Osondi is also a singer and had intended to do a remix of the song but Mc Loph beat her to it. Mc Loph did a remix or should I say, did the song again, but in a hip hop or hip life (as some would call it) style and it was another great hit. From the interview as I saw it on television, I can say that he had absolutely no intention of committing an illegality; all he wanted was to give honour to whom honour was due – although, I didn’t think he minded making some money in the process. He appeared to have sincerely believed that all he needed to do was to give credits to Osita Osadebe and he would be on the side of the law; though I must confess, I doubt if he actually gave any thought for the law or consulted a lawyer before going ahead to record and release the song. Well, that said, he recorded and released the song, the song became a hit and he got sued for it. He is now relying on his lawyers to get him out of the mess.

What should Mc Loph have done before going ahead to record and release that song?
What exactly did he do wrong? That is, if he did anything wrong. He probably thinks he didn’t; anyway, I think otherwise, I am confident that he was wrong. The copyright owner in a musical work controls the doing of certain things as it relates to that work and anybody not being the copyright owner, licensee or assignee who, without consent or authority of the copyright owner goes ahead to do any or all of those things has infringed the copyright in the work and is therefore liable at law. From the interview, it was obvious that Mc Loph did not get the consent or authority of the copyright owner in the song, Osondi Owendi, before opting to remix, release and exploit the song for commercial reasons. All he did was give credits but unfortunately that is not what is required by the law and that is absolutely insufficient but like most Nigerian musicians and artistes, he was ignorant about the law. How I wish ignorance was excuse before the law. However, I feel quite inclined to give him credit for having bothered to give credits to the late icon; most Nigerian artistes that use other’s works can hardly be bothered, some even deliberately claim the credits for themselves, after all, ‘is there law in Nigeria?’, they might say, ‘and even if there is, does it work’? Oh yes, there is law and it does work. All it takes to put the law into action is a determined person or family like that of the family of the late Osita Osadebe. In such a case, the usual begging and prostration would fail, but who knows, such efficient tools of begging and prostration might be used to settle this case. Nigerians, gracious we.

When an artiste begins to generate the thought of doing a remix of another person’s song, he should put some things in mind. Foremost on his mind should be that there is someone out there who is in control of the copyright in the song. He should know that if he fails to get the consent of that person, he would be taking a huge risk. Of course, all steps should be taken to avoid such risk.

Ordinarily that person, who is control of the copyright in the song, would be the writer of the song. By writing the song, he has secured for himself a legal right in the song, that legal right being termed ‘mechanical rights’. There are other rights such as the phonographic rights but for the purpose of this article, treating mechanical rights will be sufficient. The person having mechanical rights in a song in Nigeria is often the artiste who performed it in the recording. This is because in Nigeria, most often than not, the songwriter, writes and sings his song himself (even if he is a terrible singer); many times too, the good singer also writes his songs himself (even if he is a horrible songwriter). The reason for this pathetic situation will be another discourse for another day but a major reason for this is the lack of a reliable music publishing system in the country; some might argue that there is no music publishing in Nigeria at all, not to talk of a reliable one. I won’t argue against such argument, one might as well put it like that!

There are instances when the songwriter will not have copyright control over the song. In such a case, it is appropriate to approach whoever is in control. Most often, that person will be the recording company. Many recording companies do give their artistes record contracts that assign the rights in the songs recorded to them, sometimes, in perpetuity and sometimes, for a certain number of years. The implication of this is that such rights will be controlled by the company instead of the artiste for a term in perpetuity or as may have been agreed in the record contract. In such a situation, it is appropriate to approach the record company who recorded and released the music.

Section 6 of the Copyright Act provides, inter alia, that copyright in a work in Nigeria shall be the exclusive right to control the doing of acts such as making adaptations of such works. It shall be in respect of the whole or a substantial part of the work either in its original form or in any form recognizably derived from the original. This definitely fits the profile of remixes and the doing of other versions of songs. This means that any artiste intending to do remixes or other versions of songs must have no doubt that the doing of such acts is covered by law in Nigeria, and as such notions that the Nigerian copyright laws are inadequate will not suffice in such a matter. This is because even if the laws are indeed insufficient or inadequate, the inadequacy does not extend as far as the making of song remixes.

It is certain then that in the circumstances, Mc Loph should have gotten ‘permission’ from Osita Osadebe. But what does it matter? The man is late. Copyright in a musical work does not die with the author; actually it lives on for seventy years after the death of the author. That is what the first schedule of the Copyright Act says. Therefore, when the author dies, it will take seventy years after his death before the work would be said to have entered public domain. This means seventy years after the death of the songwriter, and only then, can anybody do with the song as he pleases. Also, copyright can be transferred just like any other property; meaning that upon the death of the owner of copyright, copyright can be ‘inherited’ just like any other property. It is therefore very important for anybody intending to do a remix to know that the fact that the artiste who originally did the song is dead does not mean that anybody can go ahead and touch the song.

Mc Loph should have gotten permission; and from the television interview, he did not get permission. This permission, however, does have a legal form in which it will be most appropriate…or should I say, most safe.

A person intending to do a remix of another person’s song or music must take some steps, as prescribed by the law, to ensure that his interests are protected. If he fails to do this, then he is exposed to a lot of dangers, his investments become unsecured and he may even incur losses above and beyond his investment in making the remix. The steps available to such an artiste are either to get the owner of copyright to assign or licence the required rights to him. This may be achieved at a fee or not. These are provided for in section 11 of the Copyright Act. The details which of these two methods and how best to use them will depend on the peculiarities of each circumstance but generally, it appears to me that for such transactions, the most suitable option will be to go the way of licencing.

As said earlier, the right to control the doing of acts such as making adaptations of works, in respect of the whole or a substantial part of the work either in its original form or in any form recognizably derived from the original, is the right involved in the making of remixes. This is the right that needs to be transferred from the copyright owner to the artiste; and the two ways which such transfer may be achieved, as earlier said too, are by way of assignment or licence.

The way of licencing, being the most appropriate for remix transactions, will be attempted to be treated. An artiste should get a licence to control the doing of acts such as making adaptations of works, in respect of the whole or a substantial part of the work either in its original form or in any form recognizably derived from the original. He may get the license either orally or in writing. In other words, he may get“permission” from the original artiste or copyright owner by ordinary word of mouth. However, he may do this only if he does not intend to be the only one that may remix the song. If the artiste desires to be the only one to have the right of remix over a song or music and he proceeds to secure such a right from the copyright owner without it being in writing, he can be certain that such procurement is invalid. It does not matter that he may have spent all the money he has to procure the right, it would all be a waste of time, money and energy – and to no effect in the eyes of the law. It therefore follows that if the artiste wants to be the only one to be able to remix any particular song, he must make sure that the agreement is in writing; but if he wants to be just one other person that may do a remix, he may not bother putting it in writing. The licence may even be inferred from conduct. This is the joint and direct implication of the provisions of section 11(3) and (4) of the Copyright Act.

Of course, after an artiste may have come to believe that he has orally secured the right to remix a song (at whatever cost), the owner of copyright may easily deny granting such a right. Hence, it is wise to have all such transactions in writing even though the law permits that they may be done orally.

An artiste has come to the point where he is ready to secure the right to remix a song and he is intends to put it in writing. What should he do? How should he go about it? Can he just go about it the way he deems fit or should he use the services of a lawyer? Yes, he can go about it as he deems fit but of course it is advisable that he use the services of a lawyer. It is the general position of the law that where there is a written agreement, that written agreement would suffice in explaining what was agreed and any oral extension of that agreement will be excluded. It therefore follows that such written document should be carefully and properly prepared; first, in a way that it will be binding on the parties and second, in a way that it will include all the clauses and provisions that an agreement of that nature and character should include. All these should be considered in making such a written agreement and it will be simply ridiculous on my part to attempt to write all that should be considered in the making of such an agreement in this article! Simply put, epistles, bad idea.

As we must have seen by now, it is definitely of great importance to comply with the provisions of the law when one wants to make a remix or another version of a song that was written by another person. We have also seen the steps that the law prescribes of the artiste in this regard and we have also seen how to go about taking those steps. We have also come to understand that an artiste who goes ahead to remix the work of another artiste puts himself at great risk, that is, if he fails to observe the provisions of the law in so doing. It is however important to graphically come to terms with the risk involved, at least to some measure of definition.

What exactly does an artiste stand the risk of losing? Money? Yes, a whole lot of money – in terms of possible income as well as loss of investment. When an artiste proceeds to do a remix, it is both a creative decision as well as a business one. Creative, because he must have conceived a way to reinterpret or re-render the song; some creativity must come to bear in the “creation” of another version of the song. It is a business decision because he must have also decided to expend some money and resources into the making of the remix, this he chooses to do with the intention of making profit. The money he will spend in making the remix, the money he hopes to make from the endeavor and the energy expended in the making of the remix may all be lost for refusing or neglecting to take a legal decision with all the other decisions. That legal decision would serve as the insurance over his investment in the remix. There is no gain saying the importance of insurance in business transactions. That, however, is not all the money that he may lose for such omission, he may also find himself in a position of having to pay the original owner of the song some more money, simply for illegally touching his song.
How can the artiste come to lose all this money? If like Mc Loph, he neglects to take the steps prescribed by law, he may like Mc Loph, find himself sued. If he is sued, the lawyers for the claimants, that is, the original owner of the song will most likely ask of the court, remedies like the following, (and may indeed get them):

1. That the infringing artistes pay general damages for the infringement. This is where the artiste finds himself paying for illegally touching the song. This is where he pays for the psychological pain the original owner has suffered as a result of his song being illegally touched. The judge may decide to award any amount. One can never really tell how much will be awarded.

2. That the infringing artiste pays special damages for the infringement. This is where the artiste finds himself paying for any actual and accountable financial loss the original owner of the song has suffered – in terms of loss of profit or otherwise. How much the artiste will be required to pay here depends on how much the original owner can prove to have lost as a result of the infringing act of the artiste.

3. That the artiste forfeits all copies of the infringing work and deliver to the original owner of the song. This may include all the plates used in mass production. Of course upon such forfeiture, the artiste would lose all the money and energy that had been spent on the production of the CDs and copies of the work until then.

4. That the artiste be restrained from producing and selling any more copies of the work. This implies that the artiste will be prevented from further doing business and making profit from that remix.

5. That the artiste give, render and deliver accounts in respect of the remix. This will compel the artiste to give accounts of all monies derived from exploiting the remix. This implies that the artiste will lose all monies and profits which he might have gained from exploiting the work prior to the suit and deliver same to the original owner of the song.

6. That the artiste be restrained from further performing the remix in public or promoting the remix or exposing the work to the public in any form. This remedy finally destroys any advantage that may have been derived from making the remix. It renders it impossible for the artiste to get paid for performing the song in shows. It doesn’t matter if the remix was the most popular song of the artiste at the time of the suit, as was the case with Mc Loph. It will prevent the artiste from getting any more popular by virtue of the remix.

It is definitely clear from the foregoing that it really isn’t a risk worth taking. Intending to do a remix? Follow the law!

Oh, one more thing. It is a criminal act; there is the risk of being jailed.