Disclaimer: The aim of this article is information and enlightenment; please consult a solicitor for individual professional advice.
MUSIC FOR YOUR MOVIE: DOs and DON’Ts
Picture this. You are watching a Yoruba ‘epic’ movie. It’s an ancient war scene set in a local village in Ondo State of Nigeria, and suddenly, the voice of Celine Dion breaks out “Gonna stand by your side noooooow, let me kiss all your tears away…”
No, your sister didn’t just put her phone’s music player on the loudspeaker mode. It’s the part of soundtrack of the Yoruba epic movie you are watching. Yeah, yeah, I know it’s not that bad anymore, but I had to get your attention somehow.
Dear people of Nollywood, we are talking movies + music today. Never underestimate the role of a soundtrack in a movie. In fact, in Hollywood and Bollywood, it is not unusual for a movie to have its own soundtrack album, released separately from the movie.
Let’s understand how to properly acquire music for your movie.
At the onset, let’s distinguish between the music on the soundtrack of a movie that has already been produced and the music that is not yet on the soundtrack of a movie. Both are musical pieces that are protected under the Copyright Act. However, they are protected differently. The music on the soundtrack of a movie is protected as part of a cinematograph film, as it is included in its definition in section 39 (1). The music that is yet to be on a movie soundtrack, however, is protected as a musical work. It is this musical work that is sought to be used that we are concerned with here.
To obtain music for your movie, you have two options:
1. Use already existing music that has been sung and recorded.
2. Create fresh and completely original music for your movie.
Or you can take both options.
Existing Music
If you’re using existing music, bear in mind that the musical piece is a protected work under the Act. Section 5 (1) (a) grants the holder of the copyright of a musical work a number of exclusive rights in the work which includes reproduction, publishing, performance, distribution, broadcasting, adaptation, making of a cinematograph film or record in respect of the work, or doing all of the foregoing in relation to the translation or adaptation of the work.
It may be quite tricky to ascertain who owns the copyright in a song. It may have been written and composed by Mr. Lagbaja and recorded by Mrs. Tamedun of One-Nigeria Record Company. If you want to use the lyrics and composition of the song and get your own sister, Nightingale, to sing it, you’ll need to ask Mr. Lagbaja for a license. This license is called a synchronisation license (synch license).
If, however, you want to use the song as sung and recorded by Mrs. Tamedun, you’ll need to get a master use license from One-Nigeria Record Company to use this specific recording, in addition to getting a synch license from Mr. Lagbaja. In Nigeria, however, all this grammar may not be necessary as it is usually the same person that writes a song and records it.
It’s prudent to make certain that neither Mr. Lagbaja nor Mrs. Tamedun has infringed the copyright of another person entirely (a third party) in writing or recording the song, so you’ll not get ‘implicated’.
Whichever license you get, whether it’s a synch license, a master use license, or both, ensure that it gives not just the right to reproduce and use the musical work on your movie but also includes further rights of publishing, performance, distribution, broadcasting, etc. It may also be clever to envisage the possibility of developing a soundtrack album in the future.
Original Music
You may decide to go the route of producing your own fresh music for the movie. This is especially preferable if you are working with a low budget. You could get a good songwriter to write the song, and beg your choir leader to sing it for you. It’s also possible for you to get a song that is already in the public domain (i.e. a song for which the copyright protection has expired), this means no licenses, no royalties.
It’s generally cheaper to get an unpopular singer to record the song for you. However, if you must use a popular musician, you should ensure that he/she is not under an exclusive recording contract with a record company, or else the record company’s permission will be required.
It’s advisable to insist on a contract between you and the person who is writing/singing/recording the music for you which names you as the owner of the copyright in the music. This is because under section 9 of the Copyright Act, this writer and/or singer would be the owner of the musical lyrics and composition or recording, unless such a contract exists. Ensure that it is a work for hire under the contract, that way, the copyright belongs to you.
Any option you choose, don’t forget that you have to do this for every musical work you use.
Tiresome, isn’t it? Getting an entertainment lawyer isn’t such a bad idea, after all.
Thursday, July 29, 2010
BRANDING AND ALL THAT JAZZ
Disclaimer: The aim of this article is information and enlightenment; please consult a solicitor for individual professional advice.
BRANDING, AND ALL THAT JAZZ
Entrepreneurship. I find that word fascinating for two reasons. One: it’s challenging to spell correctly. And two: it is a convenient cover-up for those who do not know what they are doing or what they are about, since everyone knows that an entrepreneur may not be successful immediately. Well, we are not discussing how to make a business idea or entrepreneurial venture succeed; we don’t want to put the core business advisors and shrinks out of business. However, we’ll briefly discuss something that could be a crucial element to its success.
Here’s another popular word: Branding. Every Bode, Obinna and Ali is tossing that word about these days, and with good reason too. As with almost everything in life, it could work for you or against you. When you’re starting a business, an important factor to consider is your brand. You may own the brand or you may have to apply for a licence from its rightful owner (we’ll talk about licensing and franchising another time).
In business, a brand is important because it creates an identity for you which can help you to:
• Ensure that your customers, clients, business partners and the general public can distinguish your product/service from others products/services.
• Build a relationship and reputation with the general public and have a competitive advantage (well, if your product/service is good).
• A successful brand is a form of property (intellectual) that can help you to obtain income (through franchising and royalties).
• A good and successful brand is a valuable business asset that helps your credibility and may help you gain investors and obtain financing.
Your brand is a form of your intellectual property. It is as much a property as any other thing you own, and in due time, it could even be more valuable than your real property or other tangible properties. Thus, it is important for you to protect it, so as to get the most out of it. This is especially in a country like Nigeria where everyone wants to copy a successful thing and make it their own.
The best form of protection that you can give your brand is by registering it. Registration gives you the exclusive right to prevent others from trading under the same or a confusingly similar brand.
Branding is related to many areas of law including unfair competition, advertising law and company law. However, the area of law that deals with the registration of a brand for the purposes of protection is a part of intellectual property law called trade marks’ law. In legal parlance, a ‘brand’ is usually referred to as a ‘mark’ (I agree with you that it is not as glamorous).
A mark is a sign that distinguishes goods and services of one person/enterprise/business from those of others. It could be a word, letter, numeral, drawing, picture, shape, colour, label, name, or any combination of any of these. Where it is used on a product or a service, it is generally called a ‘trade mark’ or a ‘service mark’ respectively.
The registration of a mark in Nigeria is governed by the Trade Marks Act. I will not go into the actual process of registration here and now, let it suffice to say that the current process of trade marks registration may be somewhat cumbersome. Thus, it is best to let the strong-hearted lawyers and trade mark agents handle it for you.
I have to briefly mention the doctrine of ‘PASSING-OFF’ by which protection is given to unregistered marks by common law. If some person/entity ‘passes off’ their product or service with a mark that looks like your own or with your name or mark, in a manner sufficient to cause confusion or deception, you are entitled under law to proceed against the person.
The advantage that a registered mark has over an unregistered one is that of proof in the event of infringement. A successful Passing-Off action depends on proof that the mark has accumulated public goodwill over a period of time, and that certain losses have been, is being, or is likely to be incurred by you as a result of the actions of the infringer. This ‘goodwill factor’, which may be difficult to prove, is not compulsory in an action for the infringement of a registered mark.
The remedies for an action for infringement of a registered mark and those of an action for passing off on an unregistered mark are the same viz: injunction, damages, accounts, conversion, delivery up and destruction of the infringing goods.
Well, now, you can’t say you didn’t know all these.
BRANDING, AND ALL THAT JAZZ
Entrepreneurship. I find that word fascinating for two reasons. One: it’s challenging to spell correctly. And two: it is a convenient cover-up for those who do not know what they are doing or what they are about, since everyone knows that an entrepreneur may not be successful immediately. Well, we are not discussing how to make a business idea or entrepreneurial venture succeed; we don’t want to put the core business advisors and shrinks out of business. However, we’ll briefly discuss something that could be a crucial element to its success.
Here’s another popular word: Branding. Every Bode, Obinna and Ali is tossing that word about these days, and with good reason too. As with almost everything in life, it could work for you or against you. When you’re starting a business, an important factor to consider is your brand. You may own the brand or you may have to apply for a licence from its rightful owner (we’ll talk about licensing and franchising another time).
In business, a brand is important because it creates an identity for you which can help you to:
• Ensure that your customers, clients, business partners and the general public can distinguish your product/service from others products/services.
• Build a relationship and reputation with the general public and have a competitive advantage (well, if your product/service is good).
• A successful brand is a form of property (intellectual) that can help you to obtain income (through franchising and royalties).
• A good and successful brand is a valuable business asset that helps your credibility and may help you gain investors and obtain financing.
Your brand is a form of your intellectual property. It is as much a property as any other thing you own, and in due time, it could even be more valuable than your real property or other tangible properties. Thus, it is important for you to protect it, so as to get the most out of it. This is especially in a country like Nigeria where everyone wants to copy a successful thing and make it their own.
The best form of protection that you can give your brand is by registering it. Registration gives you the exclusive right to prevent others from trading under the same or a confusingly similar brand.
Branding is related to many areas of law including unfair competition, advertising law and company law. However, the area of law that deals with the registration of a brand for the purposes of protection is a part of intellectual property law called trade marks’ law. In legal parlance, a ‘brand’ is usually referred to as a ‘mark’ (I agree with you that it is not as glamorous).
A mark is a sign that distinguishes goods and services of one person/enterprise/business from those of others. It could be a word, letter, numeral, drawing, picture, shape, colour, label, name, or any combination of any of these. Where it is used on a product or a service, it is generally called a ‘trade mark’ or a ‘service mark’ respectively.
The registration of a mark in Nigeria is governed by the Trade Marks Act. I will not go into the actual process of registration here and now, let it suffice to say that the current process of trade marks registration may be somewhat cumbersome. Thus, it is best to let the strong-hearted lawyers and trade mark agents handle it for you.
I have to briefly mention the doctrine of ‘PASSING-OFF’ by which protection is given to unregistered marks by common law. If some person/entity ‘passes off’ their product or service with a mark that looks like your own or with your name or mark, in a manner sufficient to cause confusion or deception, you are entitled under law to proceed against the person.
The advantage that a registered mark has over an unregistered one is that of proof in the event of infringement. A successful Passing-Off action depends on proof that the mark has accumulated public goodwill over a period of time, and that certain losses have been, is being, or is likely to be incurred by you as a result of the actions of the infringer. This ‘goodwill factor’, which may be difficult to prove, is not compulsory in an action for the infringement of a registered mark.
The remedies for an action for infringement of a registered mark and those of an action for passing off on an unregistered mark are the same viz: injunction, damages, accounts, conversion, delivery up and destruction of the infringing goods.
Well, now, you can’t say you didn’t know all these.
Subscribe to:
Posts (Atom)