For new readers, as an African (Nigerian)-American Attorney, I have a keen interest in Africa’s legal systems and jurisprudence. Further, given there are very few firms, if any, that specialize in fashion and entertainment law in Africa, I do intend for this portal to also be expansive to include Africans both within the USA and on the continent. Now let’s cut to the chase.
STEPH NORA OKERE V. P-SQUARE ALLEGED COPYRIGHT INFRINGEMENT
In December of 2010, a young popular emerging Nigerian singer, Waje, accused Africa’s biggest stars P-Square (also Nigerians) of copyright infringement of their hit song “Do me.”(This was the second time the press had repeated her story.)
I covered the legal issues raised by her allegations and it is republished below. Barely a year since those allegations, and after a very successful recent album launch for their latest album release “Invasion,” yet another allegation surfaces of an alleged copyright infringement. This time, an actress/singer, Steph Nora Okere, claims the duo stole her song and featured it in their latest album. What is crazy about the accusation is Okere alleges the duo had Waje, the very songstress who accused P-Square of copyright infringement, sing (Okere’s) allegedly stolen song.
“Shikena” as in “Oh my!” Let’s get into THE LAW!
Below is an excerpt from Steph Nora’s interview with a Nigerian magazine circulated all over the web:
Steph Nora claims:
“I sent the song (titled ‘Jeje’) over to Jude (Okoye, P-Square Manager) via email and he listened to it. The next day I called him for his opinion and he said exactly these words “Steph Nora the song is good but don’t release it like that because it doesn’t meet the standard of the Nigerian market.” I asked him what should be done and he suggested that I return to the studios and brush it up. . .As (he is) a brother and colleague, I took his advice and went back to the studio with my producer, Jiff. I also consulted with my manager, and we agreed to improve on the work ahead of the album launch, which I planned for this December. I finally completed the song in May/ June (2011).
But to my consternation, two weeks ago my personal assistant called my attention to P Square’s new album, which included a track entitled Jeje. . . What they did was to remix the chorus of my version to a danceable track. That was not all; they also gave their version the same title, Jeje and featured Waje.”
- How does a musical work gain copyright protection under Nigeria’s Copyright Act? In the case of a musical work in Nigeria, there must be showing of a “sufficient effort” on the work to give it an original character” and (a showing that) the “work has been fixed in any definite medium of expression . . .” Think music on a CD,for example to understand the language “fixed in any definite medium of expression.
- What is the legal issue here? The unauthorized adaptation of Okere’s existing work aka. derivative work. Nigeria’s Federal Copyright Act defines “adaptation” as a an instance, “where pre-existing work is modi(fie)d from one genre to another and consists in altering work within the same genre to make it suitable for different conditions of exploitation, and may also involve altering the composition of the work. “
- Huh? In simple language, this is referred to as “derivative work.” Derivative work is where previously existing work is either transformed or adapted into a new one i.e. “new version.” So, a remix of Jeje would qualify as an adaptation under Nigeria’s laws. Under the USA law, such adaptation has to be a “substantial” one. The legal battle is therefore on what constitutes “substantial” adaptation/transformation. Nigeria’s law is silent on this and provides no way of measuring how much is too much.
- Does P-Square Need Permission from Steph Nora to Create a “Remix” Version of “Jeje”? If her allegations are true, yes. Nigeria’s Copyright Act provides “protection for musical work irrespective of musical quality and includes works composed of musical accompaniment.” The Act also provides the exclusive right of the owner of a musical work to make adaptations. If P-Square sought to make an adaptation of “jeje”, they needed Steph Nora’s permission to do so, if what she claims is true.
- What Could Steph Nora Have Done to Protect Herself? There is no centralized copyright registration system in Nigeria unlike the USA, for example. So, her best bet would be for P-Square to sign an agreement not to copy her work before forwarding her song to the duo. The Copyright statute already provides for civil remedy so it seems a bit redundant to have a legal agreement signed. But, the agreement can permit an action under contract law and also serve as real evidence to prove a “flagrant” infringement of Okere’s “jeje” under Nigeria’s Copyright statute.
What Should An Artist/Label in P-Square’s Position Do Before Using Music?
- Don’t Copy Without Permission: If it can be said that indeed P-Square made a derivative work of Steph Nora, then clearly they want to avoid doing so, in future, without permission. While the legal system might not be very strong in Nigeria, the media/blogs are a growing force to be reckoned with. It quickly gets old trying to explain to the public, media, blogs etc. that you did not steal another artist’s song.
The first time, people might understand. The second time, you really begin to lose credibility, irrespective of whether the allegations are true.
- The above area poses a tough situation for persons like P-Square. There is no centralized system for copyright registration in Nigeria so how can artists like P-Square protect themselves, especially where they want to help emerging artists? If Nigeria had a centralized system where artists could register their work, P-Square would arguably have registered their work so that when allegations of infringement arise, they can produce their registration.
Right now, “publishers, printers, producers or manufacturers of works” under the statute are expected to keep their own personal register pf works they produce,but that does not solve the problem of dealing with accusations that you stole the song of another.
- How Much Is Too Much to Use? This is the biggest battle Okere will have to deal with, especially in a society where Copyright laws are yet to be understood and a streamlined. How much is too much? What are the set amounts of notes, words or lines that a person can use where it does or does not constitute “stealing?” The US courts struggle with these and the decision from courts here are split. Nigeria’s statute is silent on this, so this is a hurdle that might prove tough to overcome for Okere.
- What Remedies Are Available: An Injunction to stop the further sale of “jeje,” monetary damages and accounting. Where there is demonstrated “flagrancy” and it can be shown a defendant has benefited from the infringement, the court can also add the damages it deems appropriate.
- Where Do You Sue: Nigeria’s Federal High Court in the Place Where the Infringement Occurred
TIP: P-Square needs to really clean up their act on this front. Allegations of this sort will ultimately affect the band, especially where US music labels and artists are concerned. Nigeria’s D’Banj just signed a deal with Kanye West’s GOOD Music Label, Nigeria’s Asa also just signed a distribution deal for her music to be retailed across the USA. No distributor or record label in the USA, in their right mind, will want to do business with any record label or artists that are already attracting or are a legal liability. The duo need to put a lock down on these sorts of allegations and get their legal house in order.
Okay, now check out Waje v. P-Square Joint-Authorship Claim.
Waje vs. P-Square ‘Do Me’ Alleged Copyright Infringement (Republished from December 2010)
Alleged Facts: This music news resurfaces again, after being published last month here. Waje, a rising vocalist/singer, according to the news, alleges copyright infringement by P-Square in their hit song ‘Do Me.’
Key facts according to the aforementioned news are as follows: 1) Waje collaborated with P-Square to produce ‘Do Me;’ 2) She was never compensated, in anyway, for the hit song; 3) she was never given credit for her work on the CD packet distributed across Nigeria and Africa; and 4) there was no agreement both orally or written outlining compensation and copyright ownership, among many terms.
Why Care? If the facts above are true, then it is quite worrisome and you want to avoid getting in the same situation.
What Law Governs? Nigerian Copyright Act Cap. C.28, Laws of the Federation of Nigeria 2004. This law was initially passed in 1988, amended in 1992 and 1999 and later re-codified in 2004.
Who Owns ‘Do Me?’ Under Nigeria’s Copyright law, P-Square and Waje are co-owners. They share joint authorship of the song. It is also irrelevant the amount of work Waje put into ‘Do Me’ or that they contributed distinct part that was later made into the ‘Do Me’ composition.
Why? Because the law defines co-owners as persons who “share a joint interest in the whole or any part of a copyright;” OR “[h]ave interests in the various copyrights in a composite production . . . (i.e) a production consisting of two or more works.” Clearly, Waje has a joint interest in ‘Do Me.’ But let’s get further into the legal gist.
What Does Joint Authorship Mean: Under the law, it is defined as “work produced by the collaboration of two or more authors in which the contribution of each author is inseparable from the contribution of the other author or authors.”
In Plain English? Ask, can ‘Do me’ exists separately from Waje’s part in the song? If the answer is no, then you have joint authorship.
Who Gets Songwriting Credits? Both P-Square and Waje. The law provides a “Paternity right” to copyright owners of work(s). This means Waje has a right to claim authorship and to be identified as author of her work. Waje gets compensated and also appropriately credited as a co-owner of the song.
But Waje has no Contract?! And so?! Nigerian Copyright law by default provides a safety net in instances where parties do not draft a contract. This is unique to copyright law. You should always have a contract in place.
She Should Keep It Moving! P-Square Was Doing Her a Favor: Sure if that is what she wants. For others, first you won’t get in this situation because you read this article and now know better. Second, I don’t care if you are an artist washing the gutters of Ajegunle or selling pure water in traffic at Oshodi. If any artist, famous or not, use your work, absent an agreement where you say “use my song for free and don’t credit me,” they MUST pay and credit you. They did not become wealthy “dashing” people free songs left and right. If they chop (earn money), you too must chop, End of tori.
Is it Possible for Waje to Have Written/Performed the Song and Still Not be a Joint Owner? Yes.
- If Waje was an employee of P-Square AND (notice the conjunction. You need the “AND”) there was an agreement that said they own the right to her music; OR
- If Waje was an apprentice with P-Square being the publisher AND there is an agreement saying they own her song.
What Should You Do in Waje’s Situation?
Nigerian law says if you find yourself in Waje’s situation, you are entitled to, among other things, seek through the courts damages (money), an injunction i.e stop further playing or sales of ‘Do Me’ and, an accounting of profits.
NOTE: A lot of these rules mirror US and international copyright laws.
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