YOUR CONTENT RIGHTS AND SOCIAL MEDIA

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

There's a lot of 'sharing' going around on the internet especially on 'harmless' social media. And that's okay, as long as you read the terms. You know those 'Terms of Service' tabs you see on social media websites? Right.

A lot of social media websites determine the ownership and right to the content you post on their site.

Check out an excerpt from YouTube's Terms of Service:

"... by submitting Content to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and YouTube's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive licence to access your content through the Service and to use, reproduce, distribute, display and perform such content as permitted through the functionality of the Service and under these Terms of Service." 

For instance, YouTube allows you to retain ownership rights, but you grant pretty significant and extensive rights to YouTube and its users. This, in itself, is not a bad thing- they actually need you to give them some of those rights to publish your content. However, just so you know, it may not work for you in the long run.

So, the next time you decide to use a social media site for any reason, be aware that you're making a choice between some extra publicity and the handover of the control of some major intellectual property rights.

It may not mean a lot right now, but bear in mind the potential issues that could arise when you post the next worldwide hit on a social media website.

©2013 Tinukemi Alabi
Contact: tinukemi@gmail.com

YOUR MOVIE SCRIPT AND THE THREE ‘C’S

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

I was facing a personal dilemma when the thought of writing this piece came to me. Having the right information helped me to make a good decision, and being a very nice lawyer, I thought I'd share.

This piece applies to any entertainment product or eligible work of copyright. However, to make it very understandable, I'll use the analogy of a movie script.

Maybe you have a 'winning' movie script in a file on your computer and you're trying to find the best way to make something out of it. You know that a script is a literary work protected by copyright, and that, as the author, you are the copyright owner, the only one who can 'do and undo' with the script. Yet, you are not getting richer when it's just sitting in your computer and you do not have the financial and professional means to make a movie.

So, you look at the some of the options available and narrow them to two:

a.) You can try to produce a movie from it and keep all the proceeds; or

b.) You can assign it (sell it outrightly) to a movie producer.

Enter the three C's.

The three C's of copyright are tools that can help you to make a knowledgeable decision. They are: Compensation, Credit and Creative control.

1.) Compensation: Does the financial reward come first for you? Do you want to be compensated handsomely? If this comes first for you, then you may favour selling your script to the highest bidder, especially when you do not have the financial resources to produce a movie. This may be your number one consideration, even if it means that you have to lose credit for it and control over it. In any case, be clear about what the compensation is, whether it is in kind or in cash, and how it is to be paid or structured.

2.) Credit: Do you mind very much about being acknowledged as the writer of the script? If you do, even if you sell it, you may be able to contract to have your name credited as the script-writer, especially if you'd like to use it to boost your profile and career advancement. However, this may not be very easy if the buyer of your script decides to make some changes and then claims authorship of the new product, giving you no credit for the backstory. If you get to produce the movie, however, you can have your credits in big, red blazing letters.

3.) Creative Control: Do you want to have a say in how the script is transformed into a movie and have some measure of control over the project? Maybe the subject matter was about a young, unemployed man who loved to drink beer, and somewhere along the line, the buyer decides to make the story about an adulterous, overweight woman. Or maybe you wanted the movie to be set in Lagos, Nigeria, but the buyer decides to go for Jos, instead. If you are not the producer of the movie, it is very unlikely that you will have any say in how the movie eventually turns out.

You may be able to sell your script to someone who will pay you handsomely, give you all the credit you want, and allow you to retain creative control all the way. However, in most situations, you may have to prioritise and decide which one matters to you the most. Use the three C's to help you make a knowledgeable decision.

©2013 Tinukemi Alabi
Contact: tinukemi@gmail.com

MUCH ADO ABOUT COSON

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

In my August 2010 article on this blog, I proposed that we turn our attention to an area more rewarding for the Nigerian music industry- a Copyright Collecting Society. Apparently, someone was listening.

There have been a lot of questions about COSON (Copyright Society of Nigeria) and how they operate. Therefore, the aim of this article is to give you a quick working knowledge of how a copyright society like COSON works (or should work). I tend to talk fast, so sit up.

Copyright gives the owner of a musical work or sound recording 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. Accordingly, 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 organisation that wants to use a song must seek permission for each time of use. These users include television and radio stations, expositions, restaurants, bars, hotels, night clubs, shopping centres, exhibitions, offices, websites, etc. However, it would be too cumbersome for all users to seek permission every time they need to play the songs of every artiste. This is where the usefulness and practicality of a copyright collecting society like COSON comes in.

Put simply, a collecting society is an association that has the authority to license works and collect royalties on behalf of copyright owners for an agreed fee. Collecting 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.

The collecting society acts as a middleman between copyright owners and the users of the music. 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.

The following is a simplified process of how a collecting society works:

1. The copyright owners (i.e., musicians, labels, producers, etc) join a collecting society and declare the specific works and rights 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, hotels 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 LICENSE' 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 (for example, the logs of music played on a particular radio station between July 1st and December 31st, 2012).

6. 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.

I hope this helps you to understand the process better. I don't want to talk too much, so the next time we meet, remind me to explain to you how COSON could extend its repertoire to include the music of foreign artistes, too.

Oh, I knew I had forgotten something: Have an amazing 2013!!

© 2013 Tinukemi Alabi
Contact: tinukemi@gmail.com

THE BASICS, AGAIN

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

Let's go to the basics of entertainment law. I'll start by saying that when we talk about entertainment law, we're dealing with far more than copyright. However, because it has a lot to do with the protection of works of entertainment, we'll start there. We'll briefly address what it takes to protect certain entertainment products.

Copyright protection gives the creator of a 'copyrightable work' (a work eligible for copyright, like a song, a script, or a movie) a diverse set of exclusive rights over their work for a limited period of time. These rights enable the creator to control the economic use of their work in a number of ways and to receive payment.

In Nigeria, there are no statutory requirements for a work to be registered before it can enjoy copyright protection. Once the work is original and it is created and fixed on a tangible medium or material from which it can be perceived (for instance, paper, disk, tape, canvass), copyright protection automatically becomes available, whether the work is published or not.

Having explained that a work enjoys protection without any further formalities, it is important to sound a note of warning. While a work is 'protected', it may not really enjoy the protection. Some difficulties may arise if you want to enforce your rights in case of a dispute. Let's illustrate with an example.

You have written a song from your heart and recorded it on a CD. Automatically, it enjoys copyright protection. You keep the CD. A little while later, you hear a song on the radio that sounds exactly like your own, down to the beats and the lyrics. And if another person claims that you 'stole' the song from them, what do you do in that situation? Is your work protected by copyright? Yes it is. Has your work actually enjoyed copyright protection? That is another matter entirely. Of what use is a 'protection' that you cannot enjoy? How do you even prove that the song is yours, or that you came up with it first?

The Nigerian Copyright Commission has created a voluntary registration process called the Copyright Notification Scheme. This scheme allows you to register your work with the Commission and your work forms part of their data bank. This process can help you enjoy the protection already intrinsic in your work. It ascertains the time of the creation of the work, so that you may find it easier to prove not only ownership but also priority of creation.

Thus, while registration is not compulsory for an eligible work to enjoy copyright protection, registration under the Copyright Notification Scheme is advisable.

© 2012 Tinukemi Alabi
Contact: tinukemi@gmail.com

A LIL' SOMETHING FOR SONGWRITERS

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


A LIL' SOMETHING FOR SONGWRITERS

A songwriter is usually one of the most important persons in the process of bringing a song to life. In acknowledgement of the usually unknown (relatively) heroes, here's a little something.

In Nigeria, the artiste is usually d songwriter, and so this may generally simplify a lot of things, at least where a regular pop song is concerned. However, there are always people who write songs and do not actually perform them or record them, they just 'give' them out or 'sell' them. And of course, they're those who write songs not just for regular pop radio, but also for films, movies and commercials.

Songwriters can get a wealth of useful and practical information from so many entries on this blog. However, I'd like to briefly mention an area of songwriting that may be a little knotty: the area of 'Works for Hire'

In terms of songwriting, a song is a WORK FOR HIRE where a person (corporate body or individual) commissions a songwriter to write a song specifically for them for a person, product, service or event. In that situation the ownership of the song (including its present and future revenue) belongs to the person who commissions it, and does not belong to the songwriter. In such an arrangement, the writer is paid a one-time fee for the composition, but he/she then sacrifices all ownership of the song.

Some songwriters may not be pleased with this arrangement, and may want to retain rights to their song, its use and its revenue, current and expected. There's nothing wrong with wanting the creative control and financial payback for one's efforts. However, once the agreement is that the song is being written for another person, then the songwriter should be aware that he/she may be letting go of its ownership.

Since some works for hire may not be called or defined as such (sometimes, even the person commissioning it may not be aware of the term), both parties, especially the songwriter should be careful to put the agreement on paper and read the fine print. Or better still, get an intellectual property lawyer or practitioner to review it.

All the best. Keep on churning out more songs for us (just keep the trash out, please).



Copyright 2011 Tinukemi Alabi
Questions/Comments: tinukemi@gmail.com

DERIVATIVE WORKS: QUICK LINES

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


DERIVATIVE WORKS: QUICK LINES

A while ago, we decided to reduce the sophisticated topics of entertainment and go back to the basics. As part of the basics, we're discussing an area that very few people avert their minds to: Derivative Works.

Without much ado, I'll give it to you very clearly, and very quickly. Here are basic things you should know about a derivative work.


1.) When an eligible work is created by a person, in Nigeria, that work automatically enjoys copyright protection once it's original and fixed on an expressive medium (if you're a consistent visitor on this blog, by now, this should be as clear to you as a nursery rhyme. I only say it on every other entry, after all).

2.) One of the exclusive rights protected by copyright is the right to make derivative works of the original work. As such, only the copyright owner (or anyone he/she authorises) may make works which are derived from their work.

3.) And to the question on your lips: what, really, is a derivative work? A work is a 'derivative' work if it derives its substance from another work which already exists. For instance, when you write a novel/story, and someone makes a movie or play out of that novel/story, the new one is a derivative work which is derived from the first work. Other examples are translating a story/book/script/ into another language, making a painting or a sculpture from an existing photograph, 'remixing' or 'sampling' a song with new instrumentation, etc.

The movie 'Things Fall Apart' is a derivative work of the novel 'Things Fall Apart' by Chinua Achebe. The movie 'O Le Ku' is a work derived from the novel 'O Le Ku' by Akinwunmi Ishola. If you were to stage a play on the drama 'The gods are not to blame' by Ola Rotimi, then that play would be a derivative work.

A derivative work is, thus, a new, original work that includes aspects of a pre-existing, already copyrighted work.

4.) Only a copyright owner can make or grant permission to someone else to make a derivative work based on the original work. If permission is not granted, the creator of the new work becomes liable for copyright infringement.

5.) For a derivative work to enjoy copyright protection, it must be different enough from the original so that it is considered a new piece of work. It must fulfil the requirement for originality.


I did say 'basic things'. If you want a lengthy discourse, you'll have to get in touch with an entertainment lawyer or practitioner. See ya next month.



Copyright 2011 Tinukemi Alabi
Questions/Comments: tinukemi@gmail.com

MUSIC: A BUSINESS OF PROFESSIONALS

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

MUSIC: A BUSINESS OF PROFESSIONALS

If your music-making is a profit-making business or you intend to make it one, then you need to start treating it like a money maker. In any case, something that takes a lot of your time and puts some dime in you pocket should be treated with seriousness.

To do this, do not underestimate the necessity of using professionals in your business. When I say 'professionals', I do not necessarily mean the ones in dark suits, swinging leather briefcases, I lay more emphasis in what they know and how practical it is to you as a singer, producer or whatever role you play in the music industry.

There are a number of such professionals you would need, but I'll list a necessary few:

1.) A lawyer. By far, one of the most important, and I'm not being nepotistic. If you intend to make money from your business, it's important that you create a legal business structure that identifies the major stakeholders in the business, and what their stakes are. Identifying the people and their stakes may be your prerogative, but documenting it and creating a structure is best left to a lawyer. As it is advisable that you create a profit-sharing structure that works, your lawyer will help you with the preparation and documentation.

A lawyer will also come in handy during negotiations and the drafting of agreements, and generally making sure that you stay out of trouble.

2.) An agent (or manager). I use the term 'professional' rather loosely when associating it with an agent. This is because most 'agents' in Nigeria are anything but professional. In any case, it's quite important to get someone who is very knowledgeable about the peculiarities of the Nigerian music industry. In your association, with an agent, you should be careful, though (see the October 2010 article "You and Your Agent" for in-depth information on your relationship with your agent).

3.) A business consultant. This person's job description is to 'show you the money'. The main necessity for this 'professional' is to advise you of opportunities within and without the music industry, so that you can save and invest your money wisely. Sometimes, the best person for this position, may not necessarily be the phonetics-speaking 'suited-up' consultant, it could just be a person with a knack for identifying and following up opportunities for wealth creation. Get that person on board. It's cool if this person can combine book-keeping, accountancy, and tax consultancy with the job, if not, you need yet another professional for that.

4.) The financial consultant. Now, it's the duty of this person to deal with the numbers and figures- book-keeping, accountancy, and tax consultancy. When you earn profit, like we hope you would, you will be subject to the payment of tax. The professional should be able to advise you on the relevant and best legal (working with your lawyer, and business consultant, of course) position for you.

Of course, there are various other 'professionals' involved (publicity and media, artiste development person, stylists, etc), but the above-listed ones are the must-have for the core business part of your endeavour.

Choose these professionals clearly on what they know and how practical and relevant their knowledge is to you. And when you get them on board, please, listen to them.

Be on top on things. It's never early to stay in control of your 'business', or if you prefer, your money.

Copyright 2011 Tinukemi Alabi
Comments/Questions: tinukemi@gmail.com

BACK TO THE BASICS (PART 1)

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

BACK TO THE BASICS (PART 1)

We’re going back to the basics. This is because while it would be nice to continue with the sophisticated issues in entertainment law and business, I’ve observed that a lot of people still do not understand some fundamental points.

If you’re a consistent visitor on this blog, you’ll know, by now, that when it comes to entertainment and the law, we’re dealing with far more than copyright. However, because it has a lot to do with the protection of works of entertainment, we’ll start there. This month, we’ll briefly address what it takes to protect certain entertainment products.

Copyright protection gives the creator of a ‘copyrightable work’ (a work eligible for copyright, like a song, a script, or a movie) a diverse set of exclusive rights over their work for a limited period of time. These rights enable the creator to control the economic use of their work in a number of ways and to receive payment.

In Nigeria, there are no statutory requirements for a work to be registered before it can enjoy copyright protection. Once the work is original and it is created and fixed on a tangible medium or material from which it can be perceived (for instance, paper, disk, tape, canvass), copyright protection automatically becomes available, whether the work is published or not.

Having explained that a work enjoys protection without any further formalities, it is important to sound a note of warning. While a work is ‘protected’, it may not really enjoy the protection. Some difficulties may arise if you want to enforce your rights in case of a dispute. Let’s illustrate with an example.

You have written a song from your heart and recorded it on a CD. Automatically, it enjoys copyright protection. You keep the CD. A little while later, you hear a song on the radio that sounds exactly like your own, down to the beats and the lyrics. And if another person claims that you ‘stole’ the song from them, what do you do in that situation? Is your work protected by copyright? Yes it is. Has your work actually enjoyed copyright protection? That is another matter entirely. Of what use is a ‘protection’ that you cannot enjoy? How do you even prove that the song is yours, or that you came up with it first?

The Nigerian Copyright Commission has created a voluntary registration process called the Copyright Notification Scheme. This scheme allows you to register your work with the Commission and your work forms part of their data bank. This process can help you enjoy the protection already intrinsic in your work. It ascertains the time of the creation of the work, so that you may find it easier to prove not only ownership but also priority of creation.

Thus, while registration is not compulsory for an eligible work to enjoy protection, registration under the Copyright Notification Scheme is advisable.

From time to time, we’ll take a pause on the more sophisticated topics and go back to the basics of entertainment law and business. Afterall, what’s the sense in having a beautiful house without a solid foundation?

© 2011 Tinukemi Alabi
Comments/Questions: tinukemi@gmail.com

AN ASIDE FOR PHOTOGRAPHERS

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

AN ASIDE FOR PHOTOGRAPHERS

Oh, I haven’t forgotten that this is an entertainment-related blog. I happen to find photographs enlightening and entertaining (not to mention awe-inspiring), so, I think we’re still on point. By the way, back up: it’s an aside. Here are some basic pointers (excuse the pun) for those interested in photography.

First off, you must know that your photograph is your property, just as much as your car, your phone, or your clothes. It is called INTELLECTUAL PROPERTY (IP) because the photograph itself, as opposed to the material it is fixed on, is intangible. That does not detract the fact that it is still property worthy of rights and protection.

• Suitability for Protection. Basically, like most other intellectual properties, a photograph is eligible for copyright protection when it is original and fixed on some material or medium on which is can be perceived (or well, seen). It’s irrelevant that the quality is below par, or that you’re an amateur.

• Nature of Protection. The protection is a negative one. It prohibits any other person from doing certain acts in relation to the photograph without the copyright owner’s permission. Such no-can-dos include reproduction, publishing, adaptation, distribution or further exploitation. Of course, they are certain exceptions to the rights of the copyright owner, but I did say we’re dealing with ‘the basics’.

• Ownership. The owner of copyright in the photograph is the person who took the photograph and not the person whose likeness or thing was photographed. It’s amazing how smart alecs say things like: “Mr. Santiago took a photograph of Miss Burrito. He had no right to do that. He’s infringing her copyright.”


Now, the first statement, well, it’s just a statement of facts. The second statement is arguable. It depends on the circumstances; Mr. Santiago may have had some kind of permission or some other legal defence. The third statement, definitely erroneous. Taking a person’s picture does not mean that the copyright of the person’s whose picture was taken was infringed. Some right may be infringed, maybe a privacy, publicity or brand right. But not copyright. The photographer is the copyright owner.


Having said that, I’ll point out that in some situations, the copyright may be not be owned by the person who took the photograph. In cases of employment (excluding employment in journalism), an employee who takes a photograph is the copyright owner, except there is an agreement transferring the copyright from the employee to the employer. Similarly, in commissioned works/works of hire, except there is an agreement transferring the copyright in the photograph(s) to the proprietor, the photographer remains the copyright owner.

• Length of protection. The protection does last forever, no sirree. It ends fifty years after the end of the year in which the work was first published or taken.

Well, I haven’t said much, but I hope something clicks. Ah, that pun thing again.


© 2011 Tinukemi Alabi
Comments/Questions: tinukemi@gmail.com

'COFFEE CALL' FOR ENTERTAINMENT WRITERS

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

‘COFFEE CALL’ FOR ENTERTAINMENT WRITERS

I have a unique love for writers; they are a special breed of people. On this nepotistic note, we start our current discussion: financial compensation for entertainment writers, specifically those writers who write for movies or television. Compensation for writers is a somewhat complicated ball game, and so, we’ll briefly explain the ways by which a writer may be paid. We’ll delve deeper in further discussions on this forum.

Now, it possible that some of the things you’ll read here will go right over your head, however, pay close attention because it will help you to make informed decisions when opportunity comes-a-calling. Plus, I think it’s time to wake up and smell the coffee.

It is important to note that before any payment is determined and agreed upon, the parties (the writer and the producer) must determined exactly what rights are being passed from the writer to the producer, and what the writer will be compensated for. This is because a writer may think he is just writing a story for a regular ‘one part movie’. However, what happens when the movie becomes a raving success and the producer decides to make a sequel (or a regular Part 2), make some T-Shirts, notebooks or other merchandise? Perhaps, some cable television wants to broadcast it. Or what happens when a foreign producer wants to take the movie to Portugal with Portuguese subtitles? All these and a lot more possibilities would bring in more money for the producer, and maybe the writer, too (depending on what rights and possibilities are passed around in the contract). A writer may want to make certain that his/her compensation takes into account possible revenue streams.

Having pointed that out, let’s move on to some of the ‘methods’ of payment. Each of these methods comes with pros and cons, and so it is possible to exploit more than one method for the same transaction (get a smart lawyer).

• Flat Fee. Here, you name your price, haggle a bit, haggle some more, pick up the full amount of your money, and go on your way. Very neat, very straightforward and very common. Just don’t go causing trouble when the story turns into the movie of the year.

• Deferred Fee. With this method, you also agree on the fee upfront. However, you may agree that all or part of the fee may be deferred until a specified point in time. Depending on just how long the deferral will be, the parties may decide that the writer will receive a premium/interest as additional compensation for the deferral.

This would have been a good place to talk about option agreements, but it merits its own separate discussion so we’ll address it later on this forum.

• Partial/Milestone fees. Here, the entire project is divided into different parts, and when a particular part is completed, the writer gets paid a specified amount or percentage of the fees. For instance, the story writer may get some money when the script is developed, when the movie is shot, when the movie is released on DVD, etc.

• Revenue Split/Royalties. The parties may agree that the writer will share in certain identified profits deriving from the story. This may be limited to CD and DVD sales and cinema profits or may include a host of other rights. With this method, one has to pay close attention as profits may be derived from any source whatsoever. It is also possible for writer to get an advance of the sum that may be due to him/her. It is necessary to specify if this is ‘gross profit’ or ‘net profit’ and determine just what kind of expenses are deductible from the profits.

• Or you could do all that work for free!


© 2011 Tinukemi Alabi
Comments/Questions: tinukemi@gmail.com

BETWEEN ARTISTES AND MUSIC PRODUCERS

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

BETWEEN ARTISTES AND MUSIC PRODUCERS

I’d say Happy New Year, but with most of January gone, there’s nothing really new about the year anymore, so I’ll just wish you a pleasant 2011 (or what’s left of it).

Today, the train of caution is riding the rails of the artiste-music producer relationship. In Nigeria, these days, this relationship is particularly chummy. Well, there’s nothing wrong with chummy, we just need to be on the ball.

The work of a music producer is not to be underestimated. In a lot of cases, a music producer practically takes some babbling and turns it into something bearable. There’s no denying that the producer does a lot of original work mixing the beats and rhythm, recording the song, and in a lot of cases, writing the lyrics too.

And here comes the mantra: Determine the professional relationship in writing. Apart from making sure that business is business, an agreement clarifies a lot of issues in this relationship which has been taken for granted for too long by the industry.

A lot of things can form the body of the artiste-music producer agreement. These include the determination of who bears the costs of recording, studio fees, the terms and period of the recording and its delivery, and relevant warranties and indemnifications. However, a very important and often overlooked part of such an agreement is the determination of the ownership of the work.

Generally, in sound recordings of musical works, the artist in whose name the recording was made becomes the copyright owner. However, with a lot of original creative work of the music producer going into the recording, this may just be an oversimplification. It never hurts to make things clear.

The situation becomes even more compelling when you realise that under the Copyright Act, the producer may well be deemed a joint owner of the work, and thus, a potential sharer in the proceeds stemming from it.

Please understand that the step to take in this situation is to assign all the interests and rights in the recording. Furthermore, an assignment must be in writing and must be signed by the parties for it to be valid.


© 2011 Tinukemi Alabi
Comments/Questions: tinukemi@gmail.com

ME, MY GROUP AND I (PART 2)

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

ME, MY GROUP AND I (PART 2)

A little while ago, we started talking about the business of musical groups/bands/duos and we discussed the merits of forming a profit making association to make things professional, satisfactory and generally tidy. Among the things we identified as important to note in a Shareholders' Agreement, we singled out the issue of a group's name as deserving of its own entry because of its pivotal role as the money making tool of the group.

Now, I won't begin to explain the importance of a good name. Forget that it's better than riches, here, it is the riches. You will not believe the pains people go through in naming their business. Everyone knows that a good name is it. It has to sound right. It has to hit you and not get lost in the crowd out there. It must stand out. Personally, I understand when I hear seemingly sane people call their businesses names like 'Coco-Bracada-Merlina'. I mean, diss it all you want, but you don't forget a name like that easily. It usually gets your attention and keeps it. As the brand behind the success and the cash, the group’s name is so important. It is the brand that draws crowds at a show. It is what makes fans buy a CD or merchandise. It is everything in any business, and more so in music business.

Now, imagine the situation of Coco-Bracada, a hypothetical group of four girls (Lily, Rose, Hibiscus and Cactus). They've become so popular even the President dances to their songs. Then, one bright, flowery morning, Hibiscus decides that Rose is too proud and Cactus is too prickly and temperamental and that she does not want to have anything to do with them. So, she and gentle girl Lily form a new group and call it Coco-Bracada, hoping to use the already established name/brand to the advantage of their new group.

Or another situation: Cactus decides that she was the one that came up with such a wonderful successful name which was given to her in a dream. And so, she wants a larger share of the profits earned from the name, even though all she does is back up the lead vocalist.

These are just two of many squabbles which can arise with regards to a name if care is not taken. Still working with that Shareholders' Agreement we started last time, here are a few tips:

1. The agreement should transfer the ownership of the group's name/brand to the company, who as we mentioned before is a separate person under the law. Nothing stops the group members from agreeing that they all own the name. However, a neat and wise way to tidy it is to make the company the brand-owner.

2. The agreement should specify very clearly what happens when one of the members want to leave the group. The best thing to do would be to agree that when such a situation arises, the leaving member will forfeit all rights to the use of the name without the consent of the company. There should be a fair clause that allows the leaving member's interest to be bought out.

3. The shareholders' agreement may make a leaving member entitled to the profits that are derived from the name up to the point when he/she leaves; after all, he/she helped to make that particular money.

4. In a situation where one of the members came up with the group's name, then it may be best to compensate him/her for the 'inspiration'. It should be deemed that this member absolutely sold/assigned the name/brand to the company and compensation should be agreed upon. Lest he/she starts demanding for a greater share of profits.

5. As soon as a name is determined, it becomes a veritable brand deserving of trade/service registration. Even though there is some level of protection for unregistered brands, it's better, in the long run for the name/brand to be registered.

Obviously, I can't tell you everything, but I have tried to help you watch your back.

Merry Christmas. See you in January 2011.

© 2010 Tinukemi Alabi
Comments/Questions: tinukemi@gmail.com

ME, MY GROUP AND I

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

ME, MY GROUP AND I

I received a new name recently- Rocker of Boat. The person officiating at my naming ceremony accused me, very politely of course, of rocking the boat. The system in place is working for everyone involved, he says, why spoil things with my ‘well-meaning advice’? I received the name with equanimity. I had a question he couldn’t answer, though; can a steady boat be rocked?

In any case, here I come again, a-rocking, and the boat we’re targeting today is the one carrying musical groups/bands/duos. As long as you are singing and you’re more than one person, I’m talking about you. I get personally miffed when the members of talented groups go their separate ways. There’s a whole laundry list of reasons why groups split up, personal, and business (remember the story of Lagos Boys way back on this blog? You can look it up in one of the older posts). Now, I won’t pretend to be a shrink and find a way to solve the personal issues. However, as it relates to the issues concerning the entertainment business/career, I have a thing or two to say.

If you’re in a band, or you are thinking of forming or joining one, please, consider the merits of forming a profit-making association between the group members. This could be a partnership or a company. It will ensure that the musical career is not just for personal fulfilment but also for financial consideration. However, while a partnership will do a good job of keeping things tidy, a company may be a better option because it is a separate person under the law and it limits the personal liability of group members.

Either way you decide to go, you would need an agreement between the group members. This is even more so in the case of a partnership because it is a delicate association that is prone to dissolution if things go wrong. If you are considering a partnership, this would be a Partnership Agreement and if you prefer a company, you may thoroughly spell out your terms in the company’s Article of Association or a Shareholders’ Agreement.

Now, anyone can form a company or draft a regular partnership agreement or shareholders’ agreement. However, you need a good entertainment lawyer to draft that type of agreement between the members of a musical group for the purpose of their musical career/business. I’ll just mention a few things to watch out for while preparing such an agreement, and I’ll assume that you have chosen to form a limited liability company.

1. Who owns the company? That’s a question with a pretty straightforward answer. Naturally, the members of the group should be the owners/shareholders of the company. In the interest of everyone, the members should hold equal shares to prevent squabbling later. It is possible that a major financier or manager will want to be a direct part of the business and hold shares. This is a consideration that should be assessed depending on the situation.
2. Distribution of profits. It seems obvious that the profits should be shared equally between the members. That is until you remember that one member is the lead singer doing the bulk of the singing, and another member paid the studio and engineers that produced the demo that helped the group shoot to fame. And then, yet another member is the major song-writer. Then, distributing profits equally is a sure way to build resentment and make sure that the group does not see the end of 2011 together. It is quite amusing to see a bunch of grown ups bickering like junior secondary school students.
3. The name of the group. As the brand behind the success and the cash, the group’s name is such an important part of a company of singers that it merits its own discussion. This is why I’m giving it its own entry on the blog - Me, My Group and I (Part 2).
4. Accounts and financial records of the company. It is imperative to keep accounts of the company, so that if one member or another person entirely lends the group some money, the money could be treated as a loan to be repaid with interest. Since the company will be making profit, it is important to bear in mind the necessity of paying tax. If you do not like the idea of paying tax, please stick to singing in the choir and in buses (and don't think of making profits). Note that at some point in time, it will become necessary staff.
5. Copyright ownership. This is a somewhat tricky issue. The members of the group are usually joint owners of the works of copyright created by the group, and joint ownership comes with a lot of issues. For instance, generally, where a member licenses the use of a song to a third party, it will be valid under the law, even if other clients do not know. An agreement will put a lot of things in perspective by clearing out terms on which this issues may be addressed.
6. Other businesses. The company may decide to venture into other businesses. The modalities of these should be considered.

There are a lot of other things to be considered including voting, admission of a new member, death and disability of a member, and other issues, all of them important. However, we’ll be discussing the group names next.

Hang on tightly to your boat.


© 2010 Tinukemi Alabi
Comments/Questions: tinukemi@gmail.com

YOU AND YOUR AGENT

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

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

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

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

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.

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.

Feather Play

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

FEATHER PLAY

The hard way is the most effective way of learning. However, since I’m nice, I’ll be gentle, but we do have to learn. Let us ruffle some feathers, so we can learn, of course. For the purposes of this bird play, we’ll take a journey on one of those ‘executive’ coaches that ferry people across the country and sometimes outside.

Ever travelled long distance by road in Nigeria in one of those ‘executive’ coaches? There are a lot of reasons not to: the fatigue, the time, the crappy food…but on the good side there’s the extra leg room, added convenience, the movies…. Let’s talk about those movies you watch on the road (or maybe in the air). Now, we won’t be discussing the sensibility of the storyline or the appropriateness of the cast, we will be discussing legality.

Of course, for the purposes of this discussion, we’ll be referring to our beloved Copyright Act. Movies are protected under the Act as cinematograph films. This right is vested in the author of the film, maybe the producer. However, it is possible that a film being viewed in a coach has been licensed to a Pay TV broadcaster, like DSTV or hiTV, and it is from this broadcasting station that the film is copied and shown in buses.

To determine whose copyright has been infringed, it would depend on whether the film is being shown straight from the disc on which it was recorded by the producer, or whether it is being shown from the channel of a broadcast station, where it was part of a broadcast (we are assuming that the broadcast itself is duly licensed). Either way, there is some protection.

By section 5 (1) (c) of the Act, the author of a cinematograph film generally has the exclusive right to control, i.e. to do or authorise the doing of any of the following acts in Nigeria:

a) Make a copy of the film;
b) Cause the film to be seen or heard in public;
c) Make any record embodying the recording in any part of the soundtrack associated with the film by utilising such soundtrack;
d) Distribute to the public, for commercial purposes of the work, by way of rental, lease, hire, loan or similar arrangement.

Similarly, thanks to section 7 of the Act, the copyright in a broadcast is the exclusive right to control the doing in Nigeria of any of the following acts:
a) the recording and re-broadcast of the whole or a substantial part of the broadcast;
b) the communication to the public of the whole or a substantial part of a television broadcast, either in its original form or in any form recognisably derived from the original;
c) the distribution to the public for the commercial purposes, of copies of the work, by way of rental, lease, hire, loan or similar arrangement;
d) the taking of still photographs from the broadcast.

Now are these ‘coaches’ encroaching on some rights? Let’s look at section 14(1) (a) and (c). The import of this section is that It provides that copyright is infringed by any person who without the licence or authorisation of the owner of the copyright:
(a) does, or cause any other person to do an act, the doing of which is controlled by copyright;
(c) exhibits in public any article in respect of which copyright is infringed under paragraph (a) of this subsection.

So, now, you tell me, if these coaches have not been authorised to show these films, will they be infringing some person’s right, prima facie? It’s okay, you won’t be an ‘aiding’ or ‘abetting’ by watching the movies in the coach, so you can tell the truth, at least to yourself. The coach company has probably lost their own copy of your ticket anyway, so no one will be able to trace you.

It would be interesting if the actual copyright owners were to take it up with these guys, but that is not the point here. The issue is that those things that you thought you could do and get away with? Well, people are starting to take notice. For every ‘home video’ you buy, realise it is just what you call it, a home video, not meant for public use or viewing. I believe a warning usually appears on the screen to tell you just that. The fact that the warning is tacky and/or may be filled with typographical errors would not relieve you of liability.

Oh, you are smiling? Afterall, you do not own an executive coach. However, as it happens, this is not limited to buses, planes, bicycles, scooters or anything moves you from point A to B. It applies in a lot of situations: the club or that is busy showing broadcasts from Soundcity and MTV Base; the owner of a restaurant or fast food place that is playing ‘home videos’ or watching Africa Magic during business hours where customers can watch; the ‘beer parlour’ owner who hopes to draw in more customers by showing football matches on TV…

The copyright to these works are owned by people who are slowly but surely getting interested in their investments, and whether you like it or not, the law says they get to dictate how their works are exploited. So, if hiTV says to pay 50,000 for some form of commercial bouquet before you can show their matches or whatever in public, well, tough luck.

You can either get an authorisation from the owner, or you can wait for fifty years after the end of the year in which the film was first published or the broadcast first took place, whatever the case may be, since that is when the protection ends. I personally think it might make more sense to go the first way, though, because if you have to wait for fifty years, instead of the ‘home video’ they expect, your clientele may mistake it for some form of documentary on 'Yesteryears'.

If you must do it, do it right. Really, how hard is that to understand?