Selato vs. CCL

Disclaimer: The aim of this article is information and enlightenment; please consult a solicitor for individual professional advice.

SELATO vs. CCL

Meet Selato. She’s a voice-over artiste extraordinaire. She heard that the telecommunications giant, Colossal Communications Limited (CCL), is about to launch a new advertising campaign. So, she hops into the studio and cooks up a wonderful commercial, even though CCL has not asked her to do anything. The beat is catchy, the script is perfect, and the whole commercial could air in less than 40 seconds. Awesome! If you heard it once, you were bound to fall in love with CCL.

After a lot of resilient lobbying, she gets audience before management of CCL. She proposes to sell the commercial to them for big bucks, but they won’t even buy it for small bucks. Licking her wounds, she tries to re-work the commercial for CCL’s rival Virtue Telecoms, but before she can do much, she hears that CCL is about to use a major part of the commercial for their campaign afterall. Now, that’s all good, except, there is no acknowledgment or financial compensation for Selato. In fact, CCL is claiming ownership of the commercial.

As you might have guessed, this is for those people who do things without being asked. No crime there. Afterall, life is a gamble, nothing ventured, nothing gained. However, this venture has turned into a mess where Selato might lose out totally.

Let us help Selato resolve her mess, you and I.

Dear Selato:

Before making trouble at all, let us confirm that you have the right to make trouble. This is a commercial about CCL where CCL was mentioned about a hundred times. However, you created that commercial.

Under the Copyright Act, this commercial can be classified as a ‘sound recording’ which is: the fixation of a sequence of sound capable of being perceived aurally and of being reproduced but does not include a sound track associated with a cinematograph film.

Copyright is vested in the author by section 9 of the same Act. This author is described in section 39 (1) as: the person by whom the arrangements for making of the sound recording were made, unless the parties to the making of the sound recording provide otherwise by contract within themselves’.

The case would have been different if CCL or CCL’s advertising agency had by contract commissioned you, Selato, to prepare the commercial for CCL. Then, they copyright would have been vested in CCL or even the advertising agency.

Now, Selato, you do not need a soothsayer to tell you that, prima facie, you are the author of the work, and you own the copyright. However, before you jump with glee, let us examine the nature of the right you have. No use jumping over something that is not worth a cup of beans.

By the provisions of section 6 of the Act, copyright in a sound recording shall be exclusive right to control in Nigeria:
a) the direct or indirect reproduction, broadcasting or communication to the public of the whole or a substantial part of the recording either in its original form or in any form recognisably derived from the original;
b) the distribution to the public for commercial purposes of copies of the work by way of rental, lease, hire, loan or similar arrangement.

As we see it, Selato, you have two options, really. You can leave CCL in the hands of God. Or you can use your God given brains.

You can get an interim injunction to stop CCL from airing the commercial. There’s no avoiding it, even though you may hate the word C-O-U-R-T. If it’s any consolation, a number of us hate that word, but we do what we have to do. The injunction is probably the only thing the big boys and shot-callers of CCL will respect. Even your lawyer may be denied audience when you want to calmly talk it over. Put the lawyer to better use and get an injunction. Simply put, this injunction is a temporary order of court which commands a person to do an act or to refrain from doing an act. In this case it will be to restrain CCL from airing the contentious commercial. Unfortunately, not only is it at the discretion of the court, it is not conclusive; the key word here is temporary. It has a short life span, which could be like 2 weeks, so this means that you shouldn’t do the victory dance yet.

Now, although it has been explained earlier, you own the copyright. However, since CCL may want to claim ownership or make some trouble of its own, you can apply to the court for a declaratory judgment (I did mention that this wasn’t over). This is a decision of the court for the determination of a controversy on law or rights. Here, the court will examine the situation and the relevant law and make a declaration as to who owns the copyright.

It is possible that while the declaratory judgment proceedings are still on, CCL will try to air the commercial as soon as the currency of the interim injunction is over. They are not likely to play fair, and neither should you. This is where you’ll bring in another type of injunction called the interlocutory injunction. Now, it has a longer life-span and will indeed last till the end of the court proceedings for the declaratory judgment. Its effect would be to stop CCL from airing the commercial.

The interesting thing about a declaratory judgment is that it does not necessarily grant you any executory relief, i.e., it is not an order to stop CCL from airing the commercial or to command CCL to pay you compensation. It only declares what is already obvious, that the copyright belongs to you.

The practical thing to do once you get your declaration is to wait. If CCL does not use the commercial anymore, that is good. You may still be able to get Virtue Telecoms to play ball.

However, it is very likely that CCL may still go on and air the commercial anyway, declaratory judgment or not. They are business men; they will weigh the profits the company will make from airing the commercial against the damages and compensation they will have to pay as a result of using the song without permission. It is very possible that the former will outweigh the latter.

It’s time to be practical, so you don’t end up fighting against a giant who has more means than you for protracted court litigation. You can claim compensation from CCL then. They would have used something which has been provided by statute and declared by the court as your work, of which you own the copyright. The issue of proof will be a lot easier than when you are trying to prove that they WILL or MAY use it. This will be a more straightforward and easily proven case of infringement. And if by now, you’ve caught the litigation fever, you would still have a better case in court than if CCL had not used your work.

However, please note that if CCL does not use the commercial, you have to ensure that any mention of or reference to CCL is totally removed from it, whether or not it is sold to another buyer.

Selato, it is possible that you do not like all this litigation business at all, but tough luck. Next time, try to keep from things you have not been asked to do. If you must, let the advertising agency or the company hear just a little portion of the commercial you have prepared and if they are interested in listening to the whole package, get them to sign a contract that will ensure that you get acknowledgment and compensation if they decide to use your work.

If you have not done that already, please pay special attention to the disclaimer above, individual circumstances can be trusted to differ greatly.