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.
Showing posts with label COSON. Show all posts
Showing posts with label COSON. Show all posts
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.
Monday, November 29, 2010
ADVERTISING IN NIGERIA AND THE UNWRITTEN NINE SECONDS RULE
The issue came up during the COSON SELECT STAKEHOLDERS FORUM whether or not an advertising agency can freely use copyrighted music in their adverts without authorization, permission or license from the owner, provided the duration of what was used of the work did not exceed nine seconds. The rule permitting an advertising agency to do this was referred to as the unwritten nine seconds rule. It was necessary to determine whether such a rule actually exists at law and whether such a rule was applicable in Nigeria. I might as well just quickly say that such rule, even if it exists and is applicable in some other jurisdiction, is absolutely and completely inapplicable in Nigeria. Such nine seconds or ten seconds or five seconds or any number of seconds at all rules doesn’t exist in Nigeria. It therefore follows that if any Nigerian advertising agency, believing in any such rule or variant of it, uses music in conformity with and in reliance on such rule, it will definitely find itself on the wrong side of the law. Such an advertising agency would be exposing itself and its clients to ridicule, lawsuits and claims. That is however not to say that one cannot legally use small or minimal portions of copyrighted music without license from the owner of the work. The question is whether Nigerian advertising agencies can do so and to what extent they may. The area of copyright law that deals with this question is known as fair dealing or otherwise called fair use in other jurisdictions.
What then is law of fair use or fair dealing, and how may an advertising agency properly view itself and its business within the provisions of the law in this regard? Fair dealing is provided for under the second schedule of the Nigerian copyright Act, 2004. It is an exception the general rule that one may not make copies of or use whole or portions of copyrighted works without authorization or license from the copyright owner. In other words, the law of fair use allows the making of copies of copyrighted works without authorization from the owner of copyright in those works. Lord Denning, in Hubbard v. Vosper said: “It is impossible to define fair dealing; it must be a question of degree. You must first consider the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be fair dealing. If they are used to convey same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions…”
From the words of Lord Denning, it appears that a nine seconds rule should pass; after all, that is a rather small proportion. However, one must also consider the purpose or use. Is it used for comment, criticism or review? Do advertising agencies put music in adverts for the purpose of commenting on the music, criticizing the music or reviewing it? I would think not. If any comments or reviews are being made at all, they are made in respect of a product not being that music itself. The Copyright Act states purposes which may qualify as fair dealing. These are research or private study, criticism or review and reporting current events. It suffices to simply say that when portions of music are used in the making of an advert, they are not used to serve any of these purposes and the fact that minimal portions are used will not qualify as fair use or fair dealing. Rather, they are used to serve commercial purposes – to make the public and potential customers pay more attention to the advert, fancy the advert, sustain interest in the advert and subconsciously transfer any interest or appreciation for the music to the advertised product or even generate new interest in the advertised product. The music can also help to sustain existing interest in the product. The aim of the entire process is to increase sales and this purpose can certainly not be said to have been the intention or the meaning of the second schedule of the Copyright Act, 2004.
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 is law of fair use or fair dealing, and how may an advertising agency properly view itself and its business within the provisions of the law in this regard? Fair dealing is provided for under the second schedule of the Nigerian copyright Act, 2004. It is an exception the general rule that one may not make copies of or use whole or portions of copyrighted works without authorization or license from the copyright owner. In other words, the law of fair use allows the making of copies of copyrighted works without authorization from the owner of copyright in those works. Lord Denning, in Hubbard v. Vosper said: “It is impossible to define fair dealing; it must be a question of degree. You must first consider the number and extent of the quotations and extracts. Are they altogether too many and too long to be fair? Then you must consider the use made of them. If they are used as a basis for comment, criticism or review, that may be fair dealing. If they are used to convey same information as the author, for a rival purpose, that may be unfair. Next, you must consider the proportions…”
From the words of Lord Denning, it appears that a nine seconds rule should pass; after all, that is a rather small proportion. However, one must also consider the purpose or use. Is it used for comment, criticism or review? Do advertising agencies put music in adverts for the purpose of commenting on the music, criticizing the music or reviewing it? I would think not. If any comments or reviews are being made at all, they are made in respect of a product not being that music itself. The Copyright Act states purposes which may qualify as fair dealing. These are research or private study, criticism or review and reporting current events. It suffices to simply say that when portions of music are used in the making of an advert, they are not used to serve any of these purposes and the fact that minimal portions are used will not qualify as fair use or fair dealing. Rather, they are used to serve commercial purposes – to make the public and potential customers pay more attention to the advert, fancy the advert, sustain interest in the advert and subconsciously transfer any interest or appreciation for the music to the advertised product or even generate new interest in the advertised product. The music can also help to sustain existing interest in the product. The aim of the entire process is to increase sales and this purpose can certainly not be said to have been the intention or the meaning of the second schedule of the Copyright Act, 2004.
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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