Tackling Music Plagiarism in Nigeria by Bamidele Oringo and Emmanuel Andondeye
Theodore Levitt is credited with the conception that “Creativity is thinking up new things, innovation is doing new things.[1]” The practical implication of the foregoing is that innovation and creativity are the bedrock of progress, growth, and development in any society. Thus, in the entertainment industry, creativity and innovation determine the sustainability and relevance of every key player. However, it is regrettable that in the Nigerian entertainment industry, creativity is not encouraged; the industry has been plagued with intellectual theft, especially in the music sector. The illegal act is carried out in different forms. It could be the reproduction and/or the carbon copying of a song lyrics or video. Whilst it is acceptable in law to derive inspiration from an artiste`s work, that does not warrant any artiste to re-create or reproduce such work without obtaining relevant consent. The artist could be authorized by the true owner or in exceptional instances, his estate, subject to certain conditions. These conditions could be contractual: the payment of an agreed sum of money or an agreement signed by both parties to share the money generated from the song.
FORMS OF MUSIC PLAGIARISM
Music plagiarism could take the following forms:
1) Lyrics plagiarism: This occurs when there is a reproduction of a complete or part of a song lyrics in another song. A good example of this is the song “Champion of the World” by Coldplay which has the lyrics of the song “Otutu Nke Chukwu” by Harcourt Whyte (1975). Similarly, Veronica Vega’s song “A Million“ featuring Quavo (2019) has the lyrics of the song “Ise Oluwa Ko Seni Toye” (2000) by Musiliu Haruna Ishola.
2) Sampling: Sampling is the reuse of a portion (or sample) of a sound recording in another recording. Samples may comprise of elements such as rhythm, melody, speech, sounds, or entire bars of music, and maybe layered, equalized, sped up or slowed down, re-pitched, looped, or otherwise manipulated[2]. The song “Let Nas Down” by J. Cole (2013) sampled Fela Kuti’s song “Gentleman” (1973).
3) Music video plagiarism: Music video plagiarism has gotten a large grip on the Nigerian music industry. One of Nigeria’s fast-rising star “Lyta” who released his song “Hold Me Down” with its visuals was accused of overwhelmingly plagiarising a song titled “Just Right” by the South Korean boy band, “Got7”.
Traceably, Lyta is not the only Nigerian entertainer that has come under fire for music video plagiarism. In 2013, the music video of Nigerian rapper, Ice Prince, “VIP” which was directed by Clarence Peters was accused of being a replica of American hip hop supergroup, Slaughterhouse’s “My Life”. Also, other Nigerian music video directors, the likes of TG Omori, Dir K, amongst a host of others have been called out for music video plagiarism.
CASES INVOLVING MUSIC PLAGIARISM IN NIGERIA
There have been quite an alarming number of music plagiarism cases in Nigeria. An artist named Henry Knight, in an Instagram post on his page, accused Peter of the P Square group of intellectual theft, when the latter in 2018, used the hook, chorus, and progression of the former`s song, `Ebeano`, which was released in 2015, with his song also titled `Ebeano`, without his permission or acknowledgment. Another similar case involved Nigeria`s music legend, Tubaba who was accused of stealing a song titled `Amaka` originally owned by an artiste named Yoko B. In an interview with Punch Nigeria, Yoko B alleged that his song, titled `Amaka` was plagiarized by Tubaba and he was convinced that his work was stolen because he had previously worked with Larry Gaaga, an associate of Tubaba, who had access to his version[3].
Popular music group, Danfo Drivers also accused Tekno of sampling their song `Kpolongo` in his hit song `Jogodo` without obtaining permission or clearance from them.
Yet another case of music plagiarism in the Nigerian music industry was between a music artist popularly known as Danny Young (real name: Ajibola Muyiwa Danladi), who brought copyright infringement proceedings against Tiwa Savage and her record label, Mavin Records Ltd. Danny Young laid claims to the sum of N200million (approximately $560,000) for copyright infringement regarding his song, “Oju Tiwon” and N5million (approximately $13,000) for the cost of the action. In addition to these monetary claims, Danny Young also claimed an account of profits as well as injunctive and declaratory reliefs[4].
LEGAL FRAMEWORK REGULATING MUSIC PLAGIARISM IN NIGERIA
Music plagiarism borders on an area of law, known as Intellectual Property. Intellectual property is simply the creation of the human mind and intangible property of human creation. According to the World Intellectual Property Organization (WIPO), intellectual property refers to “creations of the mind: inventions; literary and artistic-intellectual works; and symbols, names, and images used in commerce”[5]. Nigeria became a member of the World Intellectual Property Organization (WIPO) in 1993, and the World Trade Organization (WTO) in 1995, this, thus exemplifies the country’s effort over the years to improve multilateral relations, develop and protect the rights of IP owners, both municipally and globally. At the international level, there are Intellectual Property regulations in the form of treaties that have been ratified by Nigeria such as the Paris Convention for the Protection of Industrial Property (ratified in September 1963); the Berne Convention (1986); the Rome Convention (Performers, Producers of Phonograms & Broadcasting Organisations – ratified in October 1993); the Patent Law Treaty (ratified in April 2005) and the Patent Cooperation Treaty (ratified in May 2005). Also, there are several private/non-governmental groups formed to facilitate and enhance IP rights, such as the Intellectual Property Lawyers Association of Nigeria (IPLAN), Anti-Counterfeiting Collaboration (ACC) of Nigeria, Performing Musicians Association of Nigeria (PMAN), founded by Christy Essien-Igbokwe and Sunny Okosun in 1984, Federation of Intellectual Property Owners (FIPO), among others.
It is worthy of mention that there are statutes governing intellectual property in Nigeria, namely; the Copyright Act, 2004, the Patents And Designs Act 2004, Trademarks Act, 2004, and recently in May 2021, the Buhari-led administration signed into law the Plant Variety Act, 2021. These laws aim to protect and foster an environment in which creativity and innovation can flourish, and which enables people to earn recognition or financial benefit from what they invent or create. The Copyright Act 2004 is more explicit in the area of music plagiarism.
COPYRIGHT ACT 2004
The Copyright Act (as amended), Cap C28 Laws of the Federation of Nigeria 2004 makes provision for the protection, transfer, infringement, and remedies for infringement of copyrights in Nigeria. It is the sole regulatory framework existing within the Nigerian legal stratosphere. The Act seeks to protect the creative works of authors, artistic works, songwriters, music publishers, cinematograph films, photographers, and other creative artists. Section 1(1) of the Copyright Act provides for works that could be plagiarised, thus: (a) literary works (b) musical works (c) artistic works (d) cinematograph films (e) sound recordings; and (f) broadcasts. Section 1(2) of the aforementioned Act states that works shall not be eligible for copyright unless– (a) sufficient effort has been expended on making the work to give it an original character; (b) the work has been fixed in any definite medium of expression now known or later to be developed, from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device. Also, works will not be eligible to be copyrighted by reason that the making of the work or the doing of any act about the work involved an infringement of copyright in some other work. Section 15 of the Act provides for the infringement of copyright in Nigeria; while Section 16 of the Act provides for an action for infringement of copyright. It further states that an action for infringement of copyright shall be actionable at the suit of the owner, assignee, or an exclusive licensee of the copyright in the Federal High Court exercising jurisdiction in the place where the infringement occurred. In an action for infringement, all reliefs by way of damages, injunctions, accounts, or otherwise shall be available to the plaintiff.
NECESSARY INGREDIENTS TO ESTABLISH IN A CLAIM OF MUSIC COPYRIGHT INFRINGEMENT
Legally, for any claim of music theft to succeed, the copyright owner must be able to establish the following:
Direct evidence such as eyewitness testimony, admission by the defendant, or any recording showing the defendant in the very act.[6]
Circumstantial evidence: Since direct evidence is rarely available in cases such as this, a claimant can depend on circumstantial evidence through proof of access to the work and substantial similarity.[7]
Proof of access: The plaintiff is expected to prove that at some point, the defendant had access to the song he is accused of copying. If the song is published, it may be easy to prove that the infringer must have heard it at some point but if it was never published, it may be very difficult to prove that he ever had access to the song.[8]
Substantial similarity: It must be established or proven that similarities in the songs are sufficient enough to warrant plagiarism. Several tests may be applied to achieve this.[9] The court in the case of CHOLVIN V. B&F MUSIC CO[10] gave an elucidatory decision on this ingredient. In this case, the plaintiff’s work had been distributed in 2000 professional copies of sheet music and four recordings of which 200,000 records were sold, and it had been performed on several nationwide broadcasts. The court held that in light of this circumstantial evidence, it was reasonable to infer, in combination with similarities between the two pieces that there had been infringement. Also, the court held in the case of HAWKES & SONS (LONDON) LTD V PARAMOUNT FILM SERVICE LTD[11] that a twenty-second portion of a four-minute music amounted to substantial copying.
RECOMMENDATION
The incessant occurrence of legal suits against musicians and the public embarrassment needs to be forestalled. Therefore, we recommend the following:
1) ENGAGING THE SERVICE OF A LAWYER
Engaging the service of a lawyer is requisite for success in any business relations. For entertainers or musicians, the guidance of a lawyer may help prevent court action and public embarrassment associated with music plagiarism, and monetary loss. Entertainment lawyers are specialists in drafting contracts, representing the artist in court, and bargaining deals on behalf of the artist. Every artist is therefore advised to engage the services of an entertainment lawyer.
2) ALTERNATIVE DISPUTE RESOLUTION (ADR)
Some of the many advantages are that; it saves time, assures of the confidentiality of parties involved and it is cost-efficient.
In some jurisdictions in Nigeria, ADR is a pre-action consideration that must be satisfied by a claimant in a suit, which goes to show that it is highly encouraged in the Nigerian judicial system e.g Lagos State. Thus, ADR processes could be set up by the parties involved on how to apportion the royalties that may accrue from the music as most ‘informal settlements’ done by most parties are clandestine and would leave the aggrieved party, further disadvantaged.
3) ADEQUATE SCRUTINY OF WORK BEFORE DISSEMINATION
As already stated, an artist could be liable for plagiarism, although such an act was committed accidentally. With the advancement in the world of technology, there are numerous technologies, which can detect stolen lyrics, a sampled beat, and amongst other things. Recently, Spotify developed an app that can detect whether a song is devoid of plagiarism or not. Aside from Spotify, other apps which could be found on Google and Play Store will be helpful. Examples include Shazam, SoundCloud, Fraunhofer IDMT, inter alia.
CALL FOR ACTION
Due to the incessant acts of music plagiarism in Nigeria, there is a dire need for a call to action from the Nigerian government and private/non-governmental groups. The government can checkmate this ill by enacting more laws to tackle the skyrocketing cases of plagiarism in society. Furthermore, there has been massive technological advancement in the world, thus, a need to enact new laws and amend already existing laws e.g Copyright Act, to meet up with the demands of the society and thus, halt this vice. Also, bodies such as IPLAN, ACC, PMAN, and FIPO which have been lax and neglectful, ought to bring up stringent measures for deviants, review and draft intellectual property bills, engage with members of the National Assembly and organize seminars and workshops.
ORINGO BAMIDELE GABRIEL
Oringo Bamidele Gabriel is a student of the Faculty of Law, University of Calabar. Bamidele is an astute law student who is very sedulous in his academic pursuit.
ANDONDEYE EMMANUEL IPEH-UNIM
Andondeye Emmanuel Ipeh-unim is a student of the Faculty of Law, University of Calabar. Emmanuel is a writer, a public speaker, a legal researcher, and also a member of the Nigerian Red Cross.
[1] https://www.passiton.com/inspirational-quotes/8197-creativity-is-thinking-up-new-things accessed on March 18, 2022
[2] https://www.google.com/search?q=meaning+of+sampling+of+beats&oq=meaning+of+sampling+of+beats&aqs=chrome..69i57.23447j1j4&client=ms-android-transsion-infinix-rev1&sourceid=chrome-mobile&ie=UTF-8#sbfbu=1&pi=meaning%20of%20sampling%20of%20beats accessed on March 18, 2022
[3] https://skepticlegal.wordpress.com/2018/07/16/music-plagiarism-in-nigeria-conditions-necessary-to-establish-a-successful-claim-of-music-copyright-infringement/ accessed on March 18, 2022
[4] https://ipkitten.blogspot.com/2019/03/danladi-v-tiwalope-savage-and-another.html?m=1 accessed on March 18, 2022
[5] https://lo.library.wisc.edu/intellectual_property/lesson_1.html accessed on March 18, 2022
[6] https://www.nigeriafilms.com/more/127-columnists/35830-music-plagiarism-and-music-creation accessed on March 18, 2022
[7] Ibid
[8] Ibid
[9] Ibid
[10] (253 F. 2d 102 {7th Circ.}1958)
[11] (1934) 1 Ch. 593.
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