Disclaimer: The aim of this article is information and enlightenment; please consult a solicitor for individual professional advice.
YOU AND YOUR AGENT
So you’ve decided to be a professional. All that singing in church and cracking jokes at kiddies’ parties won’t do you anymore. So you change your wardrobe and include a lot of bling in it. The next thing you might need to do to up your swagger is to get an agent or manager. Everyone knows that any important person or person-to-be never speaks or hustles for themselves.
In any case, it’s not only good for your profile to have an agent, it is may be practical. As a creative person, you may not have the necessary time, skills, resources and connections to effectively promote yourself and your work. Thus, to be taken seriously before you grow old, it might be a good investment to get an agent.
Very simply, an agent is a person who has authority to create legal relations between you and others, and this agent could be an individual or a company. In any situation, it’s best to have a good relationship between you and your agent.
Before I go on, here's a word of warning: always maintain a relationship with a good lawyer, agent or no agent.
That said, note that there may be some popular agents who are very good at getting delicious deals for entertainers but who may not be right for you. It is prudent to pick an agent who may not be so connected but who is passionate about working well with you and for you.
In Nigeria of today, you’ll hardly find statutes concerning entertainment industry/talent agents. Yeah yeah, we know it’s long overdue. However the good news is that you can make your own rules by contract. You must make your own rules by contract. This is very important. It does not matter if the agent is your cousin or your church member, this is business. The contract will determine most of the issues of your working relationship with your agent.
Here are some things you should bear in mind when drawing up such a contract:
1. Write it down. Generally, you may create an agency relationship by oral or written agreement. It could even be created by your conduct. However, it is most advisable to put the terms of the agency in writing; it can save you a lot of doctor appointments later.
2. It is wise to agree on the core duties of your agent and other obligations. Usually, the main duties of an entertainment/talent agent include finding work opportunities for you and negotiating the terms of those opportunities. As the agent is the manager of your career, both of you have to be on the same page.
There are certain fiduciary duties that come along with the position of an agent, but I won’t go into that now, talk to your lawyer about them.
3. Retain the final say. Generally, an agent may enter into contracts for you, but it is advisable that you contract to always have the final say on what you want to do. It is possible that the agent knows and understands the industry more than you do, and you may have to defer to his/her ‘higher wisdom’. All the same, some deals may go against your personal ethos or convictions, thus, retain the final right of contract and deals approval, make your concrete approval and signature compulsory to seal any deal. Do not take things for granted.
4. The agent’s gotta earn some money off you, it’s only natural. Decide on the mode of remuneration. Most agents are paid by a pre-determined commission (a percentage) on the income recieved by the principals.
It’s most advisable to expressly define the income from which the agent may deduct his/her commission. It’s usually best to limit the commisionable income to that derived from live shows and performances or endorsements that the agent helped to bring in.
While on the subject of money, it possible that the agent will incur certain costs and expenses on your behalf, agree on the mode and frequency of reimbursement.
5. Most agents represent entertainers on an exclusive basis. This means that anyone who wants to enter any professional deals with you must go through the agent. If your agent has been tested and trusted, it may be wise to hire him/her on an exclusive basis. However, nothing stops you form contracting to change this.
6. Agree on the term/duration of the agency relationship. You can always include the option of renewal of the agency relationship if it works out well.
Bottom line: be wide awake on issues concerning you and your agent. It could make or mar your entertainment career.
© 2010 Tinukemi Alabi
Comments/Questions: tinukemi@gmail.com
Friday, October 22, 2010
Monday, September 27, 2010
NOLLYWOOD DREAMS AND PRODUCT PLACEMENT
Disclaimer: The aim of this article is information and enlightenment; please consult a solicitor for individual professional advice.
NOLLYWOOD DREAMS AND PRODUCT PLACEMENT
I have a dream. That one day, I will be delighted to watch a Nigerian-made movie (in 3D, mind you) at the top of the international box office. Now, I don’t mean a movie with Nigerian-born actors like Chiwetel Ejiorfor starring in a Paramount Pictures-distributed, James Cameron-directed ‘Hollywood’ movie. I’m talking of seeing a movie written by a Nigerian, produced by a Nigerian, directed by a Nigerian, shot in Nigeria, and acted by our own sons and daughters of the soil.
The most common excuse on the mouth of Nigerian film producers is that of limited funds. Well, that’s quite understandable, nothing good comes cheaply. I have long repented of complaining and criticizing without proferring solutions, so I have decided to throw more light on one method of fundraising for film producers- PRODUCT PLACEMENT.
Product placement occurs when a brand or product is prominently added and displayed in the scenes of the film, and sometimes written into the lines. It is a refeshing way of advertising because it is not so ‘in-your-face’ like direct advertising. It is a good way of generating funds and free products for the producer and it is a good and credible way of advertising for the brand owner.
Please, let’s clarify something about product placement from the onset. With product placement, you have the brand owner’s permission and you will even benefit from using the product in the film. This is different from where you do not have any permission and you may not even be aware that you are displaying the products or intellectual property of someone else (we do this a lot in Nigeria). If it is incidental inclusion or it does not feature prominently or so many times in the film, it may not be a problem. However, when you display or use a brand/product prominently, especially in a wrong or negative manner, you may be asking for trouble. In any case, we are not discussing that here and now, remind me to bring up the topic later.
Here are some things to keep in mind when contemplating or negotiating a product placement arrangement:
1) Get a lawyer. This is the first and most important caveat. Don’t even think of going through with a product placement deal without thorough and specific legal guidance. The pitfalls are wider than the potholes on Lagos-Ibadan expressway.
2) Let the brand owners know what type of film you are producing. They may need to know the storyline, especially the scene(s) in which you propose to use their product. This is a fair request. However, you need may want to keep some parts of the storyline to yourself, so long as it will not affect the brand in any way (your lawyer will guide you here). In addition, you may have the brand owners sign a Confidentiality or Non-Use and Non-Disclosure Agreement. That way, you have some level of guarantee that your story is safe.
3) Have a written contract between yourself (as the film producer) and the brand owners. Please, do not assume anything. Know and agree for sure.
4) Agree on the method of placement. Will the brand of tissues be prominently displayed when the lead actress is crying? Or will lines concerning the product form part of the dialogue? How many times? For how long?
5) Do not promise what you cannot deliver. This is very important. An instance where this can arise is where you agree with the brand owner that the product will form part of the dialogue twice in the movie, and during editing and post production, you cut off one of the scenes involving the product. You may be exchanging your credibility for a court action.
In addition, it may be wise to insert a clause into the contract that limits your liability to monetary damages and prevents the brand owners from getting an injunction to stop the release of your film for non-performance of a contractual term. Although the success of this type of clause in film-making contracts has not been tested in Nigerian courts, I daresay, it should be successful. The grouse of a few people, however justified it may be, should not stop the progress of the work of a thousand of others.
Generally, it’s just best all round to do what you promised, like you learned in kindergarten. In any case, the brand owners (the ones with sharp lawyers) will require that they see the finished product of the film before it is premiered or released. And this is a logical request; they have their interests to protect.
6) It is also logical for the brand owners to ask you to warrant that your work is an original work and that you have not infringed on the rights of another person (a third party). This is because this third party may find a way to stop the release of the film and of course, the advertisement of their product. However, try your best to ensure that this warranty does not give rise to weighty damages. You may warrant that you’ll refund only the money paid by the brand owners for the product placement and only when the court has found that you did infringe the rights of the third party.
7) It may also be prudent to make it clear to the brand owners that what you are offering them is the placement of their brand/product in the film as agreed and not to a share in the profits, royalties or other proceeds of the film. They are advertisers, not direct profit investors.
8) A word of advice, though: while you may involve a number of products in the film, you don’t want to crowd the film with a lot of products, such that the sitting room of the lead actress looks like a supermarket. The whole gist of product placement is that it does not even seem like advertising, and so it registers on the subconscious mind of the viewer without all the bias that direct advertising faces.
Please, Nollywood, make my dream come true.
© 2010 Tinukemi Alabi
Comments/Questions: tinukemi@gmail.com
NOLLYWOOD DREAMS AND PRODUCT PLACEMENT
I have a dream. That one day, I will be delighted to watch a Nigerian-made movie (in 3D, mind you) at the top of the international box office. Now, I don’t mean a movie with Nigerian-born actors like Chiwetel Ejiorfor starring in a Paramount Pictures-distributed, James Cameron-directed ‘Hollywood’ movie. I’m talking of seeing a movie written by a Nigerian, produced by a Nigerian, directed by a Nigerian, shot in Nigeria, and acted by our own sons and daughters of the soil.
The most common excuse on the mouth of Nigerian film producers is that of limited funds. Well, that’s quite understandable, nothing good comes cheaply. I have long repented of complaining and criticizing without proferring solutions, so I have decided to throw more light on one method of fundraising for film producers- PRODUCT PLACEMENT.
Product placement occurs when a brand or product is prominently added and displayed in the scenes of the film, and sometimes written into the lines. It is a refeshing way of advertising because it is not so ‘in-your-face’ like direct advertising. It is a good way of generating funds and free products for the producer and it is a good and credible way of advertising for the brand owner.
Please, let’s clarify something about product placement from the onset. With product placement, you have the brand owner’s permission and you will even benefit from using the product in the film. This is different from where you do not have any permission and you may not even be aware that you are displaying the products or intellectual property of someone else (we do this a lot in Nigeria). If it is incidental inclusion or it does not feature prominently or so many times in the film, it may not be a problem. However, when you display or use a brand/product prominently, especially in a wrong or negative manner, you may be asking for trouble. In any case, we are not discussing that here and now, remind me to bring up the topic later.
Here are some things to keep in mind when contemplating or negotiating a product placement arrangement:
1) Get a lawyer. This is the first and most important caveat. Don’t even think of going through with a product placement deal without thorough and specific legal guidance. The pitfalls are wider than the potholes on Lagos-Ibadan expressway.
2) Let the brand owners know what type of film you are producing. They may need to know the storyline, especially the scene(s) in which you propose to use their product. This is a fair request. However, you need may want to keep some parts of the storyline to yourself, so long as it will not affect the brand in any way (your lawyer will guide you here). In addition, you may have the brand owners sign a Confidentiality or Non-Use and Non-Disclosure Agreement. That way, you have some level of guarantee that your story is safe.
3) Have a written contract between yourself (as the film producer) and the brand owners. Please, do not assume anything. Know and agree for sure.
4) Agree on the method of placement. Will the brand of tissues be prominently displayed when the lead actress is crying? Or will lines concerning the product form part of the dialogue? How many times? For how long?
5) Do not promise what you cannot deliver. This is very important. An instance where this can arise is where you agree with the brand owner that the product will form part of the dialogue twice in the movie, and during editing and post production, you cut off one of the scenes involving the product. You may be exchanging your credibility for a court action.
In addition, it may be wise to insert a clause into the contract that limits your liability to monetary damages and prevents the brand owners from getting an injunction to stop the release of your film for non-performance of a contractual term. Although the success of this type of clause in film-making contracts has not been tested in Nigerian courts, I daresay, it should be successful. The grouse of a few people, however justified it may be, should not stop the progress of the work of a thousand of others.
Generally, it’s just best all round to do what you promised, like you learned in kindergarten. In any case, the brand owners (the ones with sharp lawyers) will require that they see the finished product of the film before it is premiered or released. And this is a logical request; they have their interests to protect.
6) It is also logical for the brand owners to ask you to warrant that your work is an original work and that you have not infringed on the rights of another person (a third party). This is because this third party may find a way to stop the release of the film and of course, the advertisement of their product. However, try your best to ensure that this warranty does not give rise to weighty damages. You may warrant that you’ll refund only the money paid by the brand owners for the product placement and only when the court has found that you did infringe the rights of the third party.
7) It may also be prudent to make it clear to the brand owners that what you are offering them is the placement of their brand/product in the film as agreed and not to a share in the profits, royalties or other proceeds of the film. They are advertisers, not direct profit investors.
8) A word of advice, though: while you may involve a number of products in the film, you don’t want to crowd the film with a lot of products, such that the sitting room of the lead actress looks like a supermarket. The whole gist of product placement is that it does not even seem like advertising, and so it registers on the subconscious mind of the viewer without all the bias that direct advertising faces.
Please, Nollywood, make my dream come true.
© 2010 Tinukemi Alabi
Comments/Questions: tinukemi@gmail.com
Tuesday, August 24, 2010
NIGERIA? WE'VE GOT TALENT!!
Disclaimer: The aim of this article is information and enlightenment; please consult a solicitor for individual professional advice.
NIGERIA? WE’VE GOT TALENT!!
Are you an artist, writer, singer, photographer, movie producer or the creator of any intellectual work? Oh, please relax; this is not an ad for a talent hunt. It is a little guide for talent competitions and festivals. If you are contemplating the submission of an entry for some talent competition or festival to go and show everybody just how it’s done, you need to sit up and read carefully. The event could be local or international and the entry in question could be anything protected by copyright: a written or recorded song, a poem or story, a movie or a photograph, a sculpture or a painting.
Under Nigerian and international laws, when you create a work you own the copyright in that work. Very simply, copyright means the exclusive right to exploit the work you’ve created. There are some exceptions, but this generally means that if anyone wants to use that work in any form or to any degree, that person will have to seek permission from you.
Let me clarify something. The work we are discussing here is the one which you have created before the competition and which you are submitting for it. We are not discussing the work that the organisers of the competition sponsored you to create after you have won or after you have reached a certain stage in the competition. That is another thing entirely and it is likely that the conditions surrounding it would differ.
Also, note that the work we are referring to is the work of intellectual property, not the tangible property containing the work. So, don’t be miffed if the organiser doesn’t return the sheet of paper on which you submitted your poem or if you discover that the roasted corn you bought by the roadside was wrapped in it.
Copyright is a transferable right. However, the fact that you are submitting your work does not mean that you have given away your copyright. Nevertheless, when you are entering for a talent hunt or competition or festival, it is not unusual for there to be some form of transfer of your copyright to the organiser, the question to ask is: what kind of transfer is it? What is it, exactly, that you are permitting?
The kind of transfer it is will have certain effects. Any of these effects is alright, as long as you know and assent to the kind of transfer that brought it on.
More often than not, it is impossible to negotiate the terms of the transfer. Usually, you will be given an entry form that contains the terms and conditions of the competition. Chances are that the document will be boring. Even so, always read the fine print. If you do not see a clause that deals with the transfer of rights, please ask or forever hold your peace.
Copyright can be transferred in a number of ways, but, for our purpose here, we’ll concern ourselves with three types of transfers: the non- exclusive transfer, the exclusive transfer and the assignment.
The Non-Exclusive Transfer
Here, the organiser has the right to use your work in specified ways. However, this right given is not exclusive and other persons may use that same right in the same way(s). For instance, if the organisers have a right to copy and publish your work, you may still give the right to other people to copy and publish the same work. This kind of transfer is quite safe for you, but it’s doubtful that the organisers will want it. After all, where’s the fun if other people can do the same thing?
The Exclusive Transfer
In this situation, the organiser has the right to use you work in specified ways for a specified time. Here, this right is exclusive and no one, not even you the creator, will be able to exploit your work in that same way in that territory/area (e.g. in Nigeria). This is quite desirable and it is what organisers would want to go for. Still, you may want to ensure that the time and manner of licence is clearly stated. Imagine if you allow the organisers to use the photograph you’ve created on their website for a year and then five years down the line, it is still there. The good part of this licence is that after the specified time, all the rights concerning the work will revert back to you and you can transfer it to some other person or exploit it by yourself.
The Total Assignment
Here, you transfer all the rights concerning the work to the organisers, forever and ever. No other person, not even you, can exploit the work ever again without permission from the organisers who are now the new copyright owners. Now, if you’ll be paid for it, or if you win the grand prize of the competition, it may be worth your while. I mean, who needs a song when you’ve got ten thousand dollars cash prize or a Prado; you can always sing and record another song. However, what happens when you do not even make the preliminaries and you have already signed to assign all your rights when you were completing the entry form?
It may not be that the organisers are greedy; it could just be that the whole purpose of the competition is for the organisers to own and use the winning entry in exchange for the cash prize. It is when you do not win and all your rights have been transferred that you may feel cheated. The sad thing is that you may not be able to cry foul if it is established that you read and consented to the conditions of the competition.
If you created a work with someone and they want to submit the work for a competition, try to read the terms of that competition, especially the ones dealing with the transfer of copyright. This is because, usually, a licence or an assignment by only one of the owners of a work is deemed to be valid and effective. So, your buddy can effectively transfer the copyright in the story you both created.
Always, always read the fine print.
© 2010 Tinukemi Alabi
Comments/Questions: tinukemi@gmail.com
NIGERIA? WE’VE GOT TALENT!!
Are you an artist, writer, singer, photographer, movie producer or the creator of any intellectual work? Oh, please relax; this is not an ad for a talent hunt. It is a little guide for talent competitions and festivals. If you are contemplating the submission of an entry for some talent competition or festival to go and show everybody just how it’s done, you need to sit up and read carefully. The event could be local or international and the entry in question could be anything protected by copyright: a written or recorded song, a poem or story, a movie or a photograph, a sculpture or a painting.
Under Nigerian and international laws, when you create a work you own the copyright in that work. Very simply, copyright means the exclusive right to exploit the work you’ve created. There are some exceptions, but this generally means that if anyone wants to use that work in any form or to any degree, that person will have to seek permission from you.
Let me clarify something. The work we are discussing here is the one which you have created before the competition and which you are submitting for it. We are not discussing the work that the organisers of the competition sponsored you to create after you have won or after you have reached a certain stage in the competition. That is another thing entirely and it is likely that the conditions surrounding it would differ.
Also, note that the work we are referring to is the work of intellectual property, not the tangible property containing the work. So, don’t be miffed if the organiser doesn’t return the sheet of paper on which you submitted your poem or if you discover that the roasted corn you bought by the roadside was wrapped in it.
Copyright is a transferable right. However, the fact that you are submitting your work does not mean that you have given away your copyright. Nevertheless, when you are entering for a talent hunt or competition or festival, it is not unusual for there to be some form of transfer of your copyright to the organiser, the question to ask is: what kind of transfer is it? What is it, exactly, that you are permitting?
The kind of transfer it is will have certain effects. Any of these effects is alright, as long as you know and assent to the kind of transfer that brought it on.
More often than not, it is impossible to negotiate the terms of the transfer. Usually, you will be given an entry form that contains the terms and conditions of the competition. Chances are that the document will be boring. Even so, always read the fine print. If you do not see a clause that deals with the transfer of rights, please ask or forever hold your peace.
Copyright can be transferred in a number of ways, but, for our purpose here, we’ll concern ourselves with three types of transfers: the non- exclusive transfer, the exclusive transfer and the assignment.
The Non-Exclusive Transfer
Here, the organiser has the right to use your work in specified ways. However, this right given is not exclusive and other persons may use that same right in the same way(s). For instance, if the organisers have a right to copy and publish your work, you may still give the right to other people to copy and publish the same work. This kind of transfer is quite safe for you, but it’s doubtful that the organisers will want it. After all, where’s the fun if other people can do the same thing?
The Exclusive Transfer
In this situation, the organiser has the right to use you work in specified ways for a specified time. Here, this right is exclusive and no one, not even you the creator, will be able to exploit your work in that same way in that territory/area (e.g. in Nigeria). This is quite desirable and it is what organisers would want to go for. Still, you may want to ensure that the time and manner of licence is clearly stated. Imagine if you allow the organisers to use the photograph you’ve created on their website for a year and then five years down the line, it is still there. The good part of this licence is that after the specified time, all the rights concerning the work will revert back to you and you can transfer it to some other person or exploit it by yourself.
The Total Assignment
Here, you transfer all the rights concerning the work to the organisers, forever and ever. No other person, not even you, can exploit the work ever again without permission from the organisers who are now the new copyright owners. Now, if you’ll be paid for it, or if you win the grand prize of the competition, it may be worth your while. I mean, who needs a song when you’ve got ten thousand dollars cash prize or a Prado; you can always sing and record another song. However, what happens when you do not even make the preliminaries and you have already signed to assign all your rights when you were completing the entry form?
It may not be that the organisers are greedy; it could just be that the whole purpose of the competition is for the organisers to own and use the winning entry in exchange for the cash prize. It is when you do not win and all your rights have been transferred that you may feel cheated. The sad thing is that you may not be able to cry foul if it is established that you read and consented to the conditions of the competition.
If you created a work with someone and they want to submit the work for a competition, try to read the terms of that competition, especially the ones dealing with the transfer of copyright. This is because, usually, a licence or an assignment by only one of the owners of a work is deemed to be valid and effective. So, your buddy can effectively transfer the copyright in the story you both created.
Always, always read the fine print.
© 2010 Tinukemi Alabi
Comments/Questions: tinukemi@gmail.com
A NEW TUNE: COPYRIGHT COLLECTING SOCIETIES
Disclaimer: The aim of this article is information and enlightenment; please consult a solicitor for individual professional advice.
A NEW TUNE: COPYRIGHT COLLECTING SOCIETIES
I visited the infamous Alaba market a while ago. It’s said to be the hub of piracy and I had been warned to go with a good ID card in the event that law enforcers raid the place. Without prejudice to any person or group of people, I am tired of people shouting Alaba every other day. Yes, piracy is a scourge and I’m all for kicking it out, but I fear we’ve been ignoring other important things. The Alaba boys are ‘small fish’. I propose that we turn our attention to something that would be more rewarding in the end: A COPYRIGHT COLLECTING SOCIETY.
Nigeria is ripe for a functional, effective and reliable copyright collecting society. Things are looking up in this respect and so we will not go into the unfortunate history of collecting societies in Nigeria, neither will we take sides or get into the scramble of who’s right or wrong. All, we’ll do for now is understand what a copyright collecting society is and what it does.
By now, you should have a fair knowledge of how copyright works. All the same, here’s the deal. Copyright gives the owner of an eligible work the exclusive right to exploit that work in a number of ways including reproduction, recording, publishing, public performance, adaptation, translation, communication to the public, etc. In other words, only the copyright owner can do any of these acts or authorise anyone to do any of the acts. Any one that exploits the work without permission from the owner may be guilty of infringement.
This means that any person, or any organisation for that matter, that wants to use a copyrighted work, e.g., a song must seek permission. These users include television and radio stations (yeah, that’s right, especially them), competitions and talent shows, festivals and special events, expositions, restaurants, bars, hotels, night clubs, shopping centres, exhibitions, offices, websites, etc.
Now, imagine the representatives of all the ‘users’ of ‘Strong Thing’ on a queue at Banky W’s door, contracts in hand, seeking permission for every time they air or play the song or use it in some other way. Then, these poor people would then march to the doors of Tuface Idibia, to seek permission for every use of ‘Implication’, ‘Enter the place’, ‘African Queen’ and all his other songs, and then they would move on to Styl Plus, then TY Bello, then El Dee, then Ebenezer Obey, then Tosin Martins, Kefee, P. Square, Asa, and every other artiste or copyright owner. Ha!!
Enter the saviour: Collecting Societies
Put simply, a collecting society (also called a collective management organisation) is an association that has the authority to license works and collect royalties on behalf of copyright owners for an agreed fee. The collecting society acts as a middleman between copyright owners and the users of the works. The relationship between the copyright owners and the collecting society is a fiduciary one where the copyright owners are the principals and the collecting society is the agent representing them.
Copyright societies exist because it is impractical to enforce the rights of the copyright owners one by one and the copyright owners do not usually have the knowledge, expertise and resources to monitor all uses of their works. Equally, it is not possible for a broadcasting organisation, for instance, to seek specific permission from every copyright owner for the use of every copyrighted work, every time.
Contrary to what a lot of people think, collecting societies are not meant for those in the business of music alone. The members of a collecting society include all owners of copyright and neighbouring rights: writers, visual and other artists, photographers, music composers, singers, or performers. However, although broadcasting stations are copyright owners (with regard to their broadcasts), for this purpose, they are considered users.
As you have probably guessed, collecting societies are best appreciated by bulk users who use copyrighted work as the bedrock of their businesses. Collecting societies administer rights including:
a) The right of public performance (music played or performed in clubs, restaurants, and other public places);
b) The right of broadcasting (live and recorded performances on radio and television);
c) The mechanical reproduction rights in musical works (the reproduction of works on CDs,tapes, vinyl records, cassettes, mini-discs, or other forms of recordings);
d) The performing rights in dramatic works;
e) The right of reprographic reproduction of literary works (photocopying);
How A Collecting Society Works
1. The copyright owners join a collecting society and declare all their works, the rights to which they want the society to administer for them.
2. The collecting society builds up a large repertoire or collection of works.
3. The users of the work (e.g. broadcasting stations, exhibitors, schools and eateries) negotiate with the collecting society for a licence to use all the works in the repertoire of the collecting society for a specific period of time, for a fee, of course. This licence is called a blanket licence because it covers a lot of works.
4. The collecting society monitors the use of the licensed works.
5. The users submit records of the works used over a specified period to the collecting society (e.g the logs of music played on radio between January 1st and June 30th).
6. At a specific time, the collecting society pools all the proceeds paid by users, deducts a percentage for administrative costs and distributes the rest of the proceeds to the copyright owners based on the use of their works, as determined from the records submitted by the users. They are special technological systems used for all these purposes.
In practice, it may be cumbersome for just one collecting society to manage all the types of rights enumerated above. So, what usually obtains is that a collecting society handles just one of the rights, e.g., the right of public performance.
Where a collecting society is under reciprocal representation agreements with collecting societies in other countries, it may administer foreign repertoires in its national territory, exchange information and pay royalties to foreign owners of rights. For instance, if the collecting society in Nigeria is under this reciprocal agreement with ASCAP (one of the collecting societies in America), it would represent the copyright owners in ASCAP’s repertoire and ASCAP would represent the copyright owners in the repertoire of the Nigerian collecting society.
The race has started, but in Nigeria, we are still tying up our shoestrings. Yes, the Copyright Society of Nigeria (COSON) has been approved and all that. We can only hope that the society executes the mandate before it timeously as we lose remuneration and revenue daily. All stakeholders will do well to work with them and stop wasting good breath on piracy.
I propose that we leave Alaba alone for one week and target the big users who are enjoying the rewards without the sweat. They have no hiding place, and neither are they likely to go out of business or go on strike just because they have been asked to follow the law.
Who’s with me?
© 2010 Tinukemi Alabi
Comments/Questions: tinukemi@gmail.com
A NEW TUNE: COPYRIGHT COLLECTING SOCIETIES
I visited the infamous Alaba market a while ago. It’s said to be the hub of piracy and I had been warned to go with a good ID card in the event that law enforcers raid the place. Without prejudice to any person or group of people, I am tired of people shouting Alaba every other day. Yes, piracy is a scourge and I’m all for kicking it out, but I fear we’ve been ignoring other important things. The Alaba boys are ‘small fish’. I propose that we turn our attention to something that would be more rewarding in the end: A COPYRIGHT COLLECTING SOCIETY.
Nigeria is ripe for a functional, effective and reliable copyright collecting society. Things are looking up in this respect and so we will not go into the unfortunate history of collecting societies in Nigeria, neither will we take sides or get into the scramble of who’s right or wrong. All, we’ll do for now is understand what a copyright collecting society is and what it does.
By now, you should have a fair knowledge of how copyright works. All the same, here’s the deal. Copyright gives the owner of an eligible work the exclusive right to exploit that work in a number of ways including reproduction, recording, publishing, public performance, adaptation, translation, communication to the public, etc. In other words, only the copyright owner can do any of these acts or authorise anyone to do any of the acts. Any one that exploits the work without permission from the owner may be guilty of infringement.
This means that any person, or any organisation for that matter, that wants to use a copyrighted work, e.g., a song must seek permission. These users include television and radio stations (yeah, that’s right, especially them), competitions and talent shows, festivals and special events, expositions, restaurants, bars, hotels, night clubs, shopping centres, exhibitions, offices, websites, etc.
Now, imagine the representatives of all the ‘users’ of ‘Strong Thing’ on a queue at Banky W’s door, contracts in hand, seeking permission for every time they air or play the song or use it in some other way. Then, these poor people would then march to the doors of Tuface Idibia, to seek permission for every use of ‘Implication’, ‘Enter the place’, ‘African Queen’ and all his other songs, and then they would move on to Styl Plus, then TY Bello, then El Dee, then Ebenezer Obey, then Tosin Martins, Kefee, P. Square, Asa, and every other artiste or copyright owner. Ha!!
Enter the saviour: Collecting Societies
Put simply, a collecting society (also called a collective management organisation) is an association that has the authority to license works and collect royalties on behalf of copyright owners for an agreed fee. The collecting society acts as a middleman between copyright owners and the users of the works. The relationship between the copyright owners and the collecting society is a fiduciary one where the copyright owners are the principals and the collecting society is the agent representing them.
Copyright societies exist because it is impractical to enforce the rights of the copyright owners one by one and the copyright owners do not usually have the knowledge, expertise and resources to monitor all uses of their works. Equally, it is not possible for a broadcasting organisation, for instance, to seek specific permission from every copyright owner for the use of every copyrighted work, every time.
Contrary to what a lot of people think, collecting societies are not meant for those in the business of music alone. The members of a collecting society include all owners of copyright and neighbouring rights: writers, visual and other artists, photographers, music composers, singers, or performers. However, although broadcasting stations are copyright owners (with regard to their broadcasts), for this purpose, they are considered users.
As you have probably guessed, collecting societies are best appreciated by bulk users who use copyrighted work as the bedrock of their businesses. Collecting societies administer rights including:
a) The right of public performance (music played or performed in clubs, restaurants, and other public places);
b) The right of broadcasting (live and recorded performances on radio and television);
c) The mechanical reproduction rights in musical works (the reproduction of works on CDs,tapes, vinyl records, cassettes, mini-discs, or other forms of recordings);
d) The performing rights in dramatic works;
e) The right of reprographic reproduction of literary works (photocopying);
How A Collecting Society Works
1. The copyright owners join a collecting society and declare all their works, the rights to which they want the society to administer for them.
2. The collecting society builds up a large repertoire or collection of works.
3. The users of the work (e.g. broadcasting stations, exhibitors, schools and eateries) negotiate with the collecting society for a licence to use all the works in the repertoire of the collecting society for a specific period of time, for a fee, of course. This licence is called a blanket licence because it covers a lot of works.
4. The collecting society monitors the use of the licensed works.
5. The users submit records of the works used over a specified period to the collecting society (e.g the logs of music played on radio between January 1st and June 30th).
6. At a specific time, the collecting society pools all the proceeds paid by users, deducts a percentage for administrative costs and distributes the rest of the proceeds to the copyright owners based on the use of their works, as determined from the records submitted by the users. They are special technological systems used for all these purposes.
In practice, it may be cumbersome for just one collecting society to manage all the types of rights enumerated above. So, what usually obtains is that a collecting society handles just one of the rights, e.g., the right of public performance.
Where a collecting society is under reciprocal representation agreements with collecting societies in other countries, it may administer foreign repertoires in its national territory, exchange information and pay royalties to foreign owners of rights. For instance, if the collecting society in Nigeria is under this reciprocal agreement with ASCAP (one of the collecting societies in America), it would represent the copyright owners in ASCAP’s repertoire and ASCAP would represent the copyright owners in the repertoire of the Nigerian collecting society.
The race has started, but in Nigeria, we are still tying up our shoestrings. Yes, the Copyright Society of Nigeria (COSON) has been approved and all that. We can only hope that the society executes the mandate before it timeously as we lose remuneration and revenue daily. All stakeholders will do well to work with them and stop wasting good breath on piracy.
I propose that we leave Alaba alone for one week and target the big users who are enjoying the rewards without the sweat. They have no hiding place, and neither are they likely to go out of business or go on strike just because they have been asked to follow the law.
Who’s with me?
© 2010 Tinukemi Alabi
Comments/Questions: tinukemi@gmail.com
Thursday, July 29, 2010
MUSIC FOR YOUR MOVIE
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.
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.
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.
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