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.
Showing posts with label business. Show all posts
Showing posts with label business. Show all posts
Wednesday, May 11, 2011
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.
Wednesday, April 7, 2010
PROTECTING CREATIVE BUSINESS IDEAS
Tomi asked me for legal advice – one that would ensure that some artistic and commercially viable ideas of hers are not lost to some establishments soon to receive her and her proposals. Tomi, – creative? Definitely, and budding with sellable ideas and she is only half way through her education at the University of Lagos. You might catch her looking lost more often than seldom, gazing high into the sky, sinking deep in thoughts and then coming out with her ‘babies’. Unfortunately she has had to watch some of these beautiful, in fact maybe ugly, ‘babies’ – nevertheless hers, taken away without her consent and indeed without even half a dime! In the process of trying to sell her ideas, she gets robbed; the very person she hopes will bring the ideas to life, or some other, does so, excluding her, and without any remuneration or credit. Naturally, she didn’t want continuous reoccurrence; that’s why she came to me.
Of course Tomi is not nearly alone, there are several Nigerian youths on the streets (and offices too) of Lagos and beyond with inspired, promising, interesting and truly commercial ideals who have fallen prey to some often adult/older individual or company who they perceived had the strength to turn their ideas into reality, make their dreams come true. Tolu is just another. He got the shock of his life (maybe just one of the several shocks of his life) when his idea for a reality television show came alive on Nigerian television stations without his knowledge or involvement. His exact words/lines as contained in a proposal he had taken around were used, thus there was no doubt that it was his work live on TV! This is not an attempt to suggest in the least that only the young have and do fall victim but the fact that the young are usually at a disadvantaged negotiating end - lacking in experience and clout makes them more vulnerable.
Now, Tolu and Tomi are friends but Tolu is more experienced with this dem thief my idea thing. We are gathered at a table in a club in Ikeja; Tolu tells Tomi, with all the love in his heart, “There is nothing you can do, at best, pray”. Tolu is looking at me, with all the hope in her heart, “Could that be true?” Well, it’s almost true!
The easiest way for anyone to have the desired protection is to have the receiver of a proposal sign a Non-disclosure and Non use Agreement. That would prevent a lot of headaches; and claims, where breaches occur, would be much easier to prove and thus recover. However, a little research I carried out revealed that these proposal receivers, whether intending the feared mischief or not, never sign such agreements; they just would not sign, after all, proposals are flying in from right, left and center; why should they incur an added responsibility – a potentially dangerous one for that matter, especially since such Non-disclosure and Non use Agreements would only be most potent for the creative mind if they got signed before the details of their ideas got exposed to the receiver and not after. Why then would anyone want to sign such agreements before identifying the actual value of the idea? The receivers can’t get it! However, for the benefit of doubt, lack of scientifically gathered data, and not wanting to fall into a fallacy of generalization, not all receivers would always refuse to sign a non-disclosure agreement; there is however a higher probability that a proposal adorned with such Non-disclosure and Non use Agreements would not be read by the receiver not alone approved by him because of the adornment than one not so adorned.
It therefore follows that this method, as efficient as it would have been is not the most practicable in Nigeria and as such people who want their ideas protected are always searching for alternative methods. Other available options will thus be considered.
‘But really, why can’t one just copyright the ideas, register them or patent them’ – this I have heard one too many times. I can understand where the ‘speakers’ are coming from and where they intend to go speaking like that; but I know they will never get there following the route of such statements. My apologies. The route that is most likely to take them there is tricky, delicate and can easily be missed. For an understanding of the route to ‘salvation’, an understanding of the ‘speakers’ route and why it wouldn’t lead anywhere –not even ‘damnation’, is necessary. The law on copyright in Nigeria does not protect ideas; rather, it protects the expression of those ideas. The key word is ‘expression’. Section 1 of the copyright Act of 1988, CAP 28, LFN 1990 lists works eligible for copyright as follows:
1. Literary works;
2. Musical works;
3. Artistic works;
4. Cinematograph films;
5. Sound recordings; and
6. Broadcasts.
Section 2(b) of the same Act states that the work must be fixed in a definite medium of expression to make it eligible for copyright. I believe the rationale for this position is that the fact that an idea was conceived by a certain Mr. A does not mean that a Mr. B cannot get the same idea; and that Mr. A got it first should not entitle him to an exclusive possession or use of that idea as that is what copyrighting the idea would imply. That is reasonable to me and I sincerely wish our Nigerian legislature could sincerely claim credit for such thought. That is however not to be. So, a raw idea, no matter how ingenuous it is, has no protection under the Nigerian copyright law. Also, there is no such register or registrar for ideas in Nigeria. None has been established by law in any part of the country whatsoever. That means one can’t just register the ideas, as simple as it sounds; and for the patent ‘route’, patents are simply granted to inventors not idea generators. The nature of an object for a patent has to be scientific, technological etc; and it has to be an invention. A method for doing business is definitely excluded.
For this writer, the ‘route to salvation’ for the Nigerian young (and indeed older) creative and industrious minds lies in the sufficient conversion of the idea to the best suited category of protected works under the Copyright Act. It is under these categories that cover lies. Of course, the now, works, would inevitably contain the ideas. This might as well be tantamount to self execution of the projects thereby defeating the whole purpose of writing proposals and indeed this article. One must carefully put the idea into expression in suitable and covered categories without going ahead to completely execute the project by oneself. What is important to note here is that the required act is to sufficiently convert the ideas and not completely self execute the project. Drawing the line between sufficiently expressing the idea so as to be protected by law and executing the idea can be tricky. Identifying the best suited category can equally be tricky.
What has been provided here is only a pointer in the direction to go; it is not a complete road map for all circumstances. It turns out that the minds are not as helpless and without cover as they might seem. Tolu was wrong but he had a good reason to think and talk as he did.
Of course Tomi is not nearly alone, there are several Nigerian youths on the streets (and offices too) of Lagos and beyond with inspired, promising, interesting and truly commercial ideals who have fallen prey to some often adult/older individual or company who they perceived had the strength to turn their ideas into reality, make their dreams come true. Tolu is just another. He got the shock of his life (maybe just one of the several shocks of his life) when his idea for a reality television show came alive on Nigerian television stations without his knowledge or involvement. His exact words/lines as contained in a proposal he had taken around were used, thus there was no doubt that it was his work live on TV! This is not an attempt to suggest in the least that only the young have and do fall victim but the fact that the young are usually at a disadvantaged negotiating end - lacking in experience and clout makes them more vulnerable.
Now, Tolu and Tomi are friends but Tolu is more experienced with this dem thief my idea thing. We are gathered at a table in a club in Ikeja; Tolu tells Tomi, with all the love in his heart, “There is nothing you can do, at best, pray”. Tolu is looking at me, with all the hope in her heart, “Could that be true?” Well, it’s almost true!
The easiest way for anyone to have the desired protection is to have the receiver of a proposal sign a Non-disclosure and Non use Agreement. That would prevent a lot of headaches; and claims, where breaches occur, would be much easier to prove and thus recover. However, a little research I carried out revealed that these proposal receivers, whether intending the feared mischief or not, never sign such agreements; they just would not sign, after all, proposals are flying in from right, left and center; why should they incur an added responsibility – a potentially dangerous one for that matter, especially since such Non-disclosure and Non use Agreements would only be most potent for the creative mind if they got signed before the details of their ideas got exposed to the receiver and not after. Why then would anyone want to sign such agreements before identifying the actual value of the idea? The receivers can’t get it! However, for the benefit of doubt, lack of scientifically gathered data, and not wanting to fall into a fallacy of generalization, not all receivers would always refuse to sign a non-disclosure agreement; there is however a higher probability that a proposal adorned with such Non-disclosure and Non use Agreements would not be read by the receiver not alone approved by him because of the adornment than one not so adorned.
It therefore follows that this method, as efficient as it would have been is not the most practicable in Nigeria and as such people who want their ideas protected are always searching for alternative methods. Other available options will thus be considered.
‘But really, why can’t one just copyright the ideas, register them or patent them’ – this I have heard one too many times. I can understand where the ‘speakers’ are coming from and where they intend to go speaking like that; but I know they will never get there following the route of such statements. My apologies. The route that is most likely to take them there is tricky, delicate and can easily be missed. For an understanding of the route to ‘salvation’, an understanding of the ‘speakers’ route and why it wouldn’t lead anywhere –not even ‘damnation’, is necessary. The law on copyright in Nigeria does not protect ideas; rather, it protects the expression of those ideas. The key word is ‘expression’. Section 1 of the copyright Act of 1988, CAP 28, LFN 1990 lists works eligible for copyright as follows:
1. Literary works;
2. Musical works;
3. Artistic works;
4. Cinematograph films;
5. Sound recordings; and
6. Broadcasts.
Section 2(b) of the same Act states that the work must be fixed in a definite medium of expression to make it eligible for copyright. I believe the rationale for this position is that the fact that an idea was conceived by a certain Mr. A does not mean that a Mr. B cannot get the same idea; and that Mr. A got it first should not entitle him to an exclusive possession or use of that idea as that is what copyrighting the idea would imply. That is reasonable to me and I sincerely wish our Nigerian legislature could sincerely claim credit for such thought. That is however not to be. So, a raw idea, no matter how ingenuous it is, has no protection under the Nigerian copyright law. Also, there is no such register or registrar for ideas in Nigeria. None has been established by law in any part of the country whatsoever. That means one can’t just register the ideas, as simple as it sounds; and for the patent ‘route’, patents are simply granted to inventors not idea generators. The nature of an object for a patent has to be scientific, technological etc; and it has to be an invention. A method for doing business is definitely excluded.
For this writer, the ‘route to salvation’ for the Nigerian young (and indeed older) creative and industrious minds lies in the sufficient conversion of the idea to the best suited category of protected works under the Copyright Act. It is under these categories that cover lies. Of course, the now, works, would inevitably contain the ideas. This might as well be tantamount to self execution of the projects thereby defeating the whole purpose of writing proposals and indeed this article. One must carefully put the idea into expression in suitable and covered categories without going ahead to completely execute the project by oneself. What is important to note here is that the required act is to sufficiently convert the ideas and not completely self execute the project. Drawing the line between sufficiently expressing the idea so as to be protected by law and executing the idea can be tricky. Identifying the best suited category can equally be tricky.
What has been provided here is only a pointer in the direction to go; it is not a complete road map for all circumstances. It turns out that the minds are not as helpless and without cover as they might seem. Tolu was wrong but he had a good reason to think and talk as he did.
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