The entertainment business informally known as the
showbiz has so far held a firm grip on the economy of Nigeria and as a
stakeholder-industry in employment opportunities and arts and culture
promotion. Some facts cannot be ignored about Nigeria’s showbusiness, first, is
how Nigeria’s entertainment industry and Nigerian talents in diaspora have made
the country one of the World’s most talked about.
Secondly, is the economic figures that are often
been linked with the industry, like the projection of the global consulting
firm- PriceWaterhouseCoopers (PWC) that Nigeria’s consumer revenue in
entertainment and media (E&M) will rank fourth as the fastest-growing
country by 8.8 percent from 2022 to 2026.
The broad scope or limits of the Nigerian
Entertainment industry is not a concern in this paper, rather the common
deficiencies and catalytic elements that often lead to conflicts and “media
war” in the industry. This work, further seeks to appraise how avoidable some
of the conflicts are, if only the proper instruments of agreement are employed
to police activities and day-to-day transactions in the entertainment in
industry.
The Carter Efe & Berri Tiga Drama
Reference will be consistently made to the 29th
July, 2022 when the
internet and digital music markets exploded with the release of the song –Machala
by comedian Carter Efe and music artiste Berri Tiga- a song that became largely
prominent because first it was a,water-flow interaction between comedy art and
music art being associated with a comedian who is obsessed with the popular
music artiste Ayo Balogun (Wizkid) and largely because it massaged and suit the
ego of the bastle house -Wizkid FC (arousing anxiety in the already competitive
fan bases). The song being more panegyric was dedicated to sing the praises of
Wizkid.
The prominence or manoeuvre of the song is not the
point here, rather, the ravaging events later to unfold which would herald the
removal of the song which had hit number two debut on TurnTable Nigeria Top 100
and number one on Apple Music Nigeria Top 100, from all streaming platforms.
THE WAR ZONES
The prospect of conflict in any social or business
relationship is almost inevitable. The Nigerian entertainment industry is a
commercial enterprise where products and services such as music, films, video
games, sports competition inter alia are transacted.
Although, the modern entertainment practice in
Nigeria set out as commercial business. Thus, for instance, the signing of a
new artiste to YBNL Records would be pure business from the beginning till
later for YBNL Records and any dispute arising from such relationship will be
pure business dispute to be resolved with the relevant instruments of law or
otherwise. However, it is not uncommon that most entertainment disputes
gravitate from what began as a mere social relationship with no original
intention of commercial arrangement or with no conscious effort to form a
contractual relationship. This, relatively appears to be the situation with the
Carter Efe versus Berri Tega dispute on “Machala”.
Importantly, whether a pure business arrangement or
a mere social relationship in the entertainment industry, there are bound to be
disputes between parties. The common disputes that often arise are identified
herein as the war zones.
The war zones are simply the various common disputes
likely to arise in the day-to-day transactions and relationships in
entertainment. The likely disputes in the showbiz are inexhaustible, however,
the most common dispute in the war zone is examined thus:
Copyright Infringement
Copyright infringement includes the doing of any of
the acts that are exclusively reserved for copyright owners under Section
6 of the Copyright Act, without prior authorization from the owner or
who is administering it.
“Copyright Infringement” is an umbrella word that
houses many disputes that are common in the Arts and Entertainment industry.
The concept is a body of complex rat tunnels consisting many complex disputes
and sub-disputes. Clearly, Section 6 of the Copyright Act outlines a list of
acts that constitute copyright infringement, some of which include, to
reproduce, publish, perform or distribute the work without the
authority or consent of the owner of such work. Although, there are more of
these acts that constitute copyright infringement and consequently culminate as
the basis of common disputes or say the war zones in the industry.
For the purpose of entertainment, two cardinal
disputes often stem from copyright infringement, which are, Ownership
dispute and Piracy. The basis of all other disputes often drifts back to
the question “Who owns the song?”. Perhaps, the notorious slang “Na
me get Zazoo” by singer Portable would ring a bell at this juncture. Piracy
on its own is simply the unauthorized use or reproduction of a person’s work. Thus, the scope
of piracy is restricted to unauthorized reproduction while Ownership dispute
extends in scope to unauthorized performance, distribution, sale, importation e.t.c
of the work. {In this article, “work” is used as a synonym for a music/song,
film,short videos or any other product of entertainment.}
Back to the Carter
Efe versus Berri Tiga reference. Claims of copyright infringement and ownership rights constitute
the crux of the Carter Efe versus Berri Tiga dispute. Berri Tiga alleged that,
despite that he wrote and recorded the whole of the song “Machala” Carter Efe
had been going about performing the song in shows without informing or inviting
him and that Carter does not tag him on any post about the song. Although, he
has claimed that he is not contesting ownership right in the song, but has so
far, continued to perform the song alone.
Hence, relying on
the facts admitted by Berri Tiga, the following further questions become
expedient to answer: if Berri Tiga does not truly own the song, then “What
is Berri Tiga’s status and rights in the song having written and recorded the
song?”,
Berri Tiga as the
Author or Owner of “Machala”?
In the process of
determining the question of ownership of a work, ownership is often mistaken
with authorship. This again, is another highlight of the Carter Efe versus
Berri Tiga dispute. On many occasions, the author of a work may not be the
owner of a work, whereas, both author and owner of the work are entitled to
certain distinguishable rights under the law. Thus the status of an author of a
work is distinguishable from the status of the owner of the same work.
An author of a work
is simply the person who created the work or who contributed copyrightable
expression to the work. This is what the law says about an author of a work:
copyright
in a work shall belong in the first instance to the author unless otherwise
stipulated in writing under the contract of employment.
[Section 10(2) Copyright Act]. Another instance, where the author
will not be entitled to copyright ownership of a work is, if it is shown by a
written contract that the author assigned (read “sold”) or exclusively licensed
his ownership right to another person.
By implication, Berri Tiga would be considered the
sole author of the song “Machala” if he created the song, that is, if truly,
only he wrote the song and in fact studio-recorded it and therefore would be
entitled to be the copyright owner in the first instance, except there is a
written contract stating otherwise .
In another instance, if Carter Efe is able to show
that there was a written contract between him and Berri Tiga, indicating that
he employed the services of Berri Tiga to write and studio-record the song,
then Carter Efe would be considered the copyright owner (although not the
author) while Berri Tiga would only be considered as the mere author and not
the owner of the copyright or that Carter Efe could show that, after the
production of the song, Berri Tiga assigned or exclusively licensed him the ownership, making him Carter Efe the
new owner of the song. At this juncture it appears plain that the first
transaction-error made by the parties is omitting/neglecting to make a written
contract.
The Rights of an Author and Rights of a Copyright
Owner
Since Berri Tiga has
admitted with evidence that he does not drag ownership of the song with Carter
Efe, which by implication means that he admits that Carter Efe owns the song.
Therefore, one may safely regard Berri Tiga as the author and Carter Efe as the
copyright owner for the purpose of distinguishing the rights of both in this
paper.
The
rights of an author (who is not the owner of the work) is restricted. Hence,
according to the Copyright Act, the rights of an author include:
–
To claim authorship of his work, in
particular that his authorship be indicated in connection with any of the acts
referred to in section 6 of this Act, except when the work is included
incidentally or accidentally when reporting current events by means of
broadcasting.
–
Also to object and seek relief in
connection with any distortion, mutilation or other modification of any other
derogatory action in relation to his work, where such action would be or is
prejudicial to his honour or reputation.
These rights are perpetual,
inalienable and imprescriptible. [Section 12 Copyright Act]
On the
other hand, the owner of a work enjoys a large chunk of rights provided by law.
Thus, the rights of the owner of a musical work for instance include, the right
to reproduce, perform, publish, assign, adapt and translate the musical work. [Section
6 Copyright Act]. As already stated, for a person to be legal owner of copyright for the purpose of
vesting requisite locus, he must fall into any of the following
categories, namely:-
(a)author of the work himself;
(b)the assignee;
(c)the licensee.
It is only any of these legally authorized
or accredited owners that can seek redress in copyright in the court of law. [(2007)
13 NWLR M.C.S. (Nig) Ltd./Gte v. Adeokin Records 619 (P.628, paras.
C-D)]
Now, referring to the Carter Efe
versus Berri Tiga drama, it is an undefeatable fact that, whichever of both
parties is found to be the true owner of the song, has the right to publicly
perform, sell or reproduce the song “Machala”. The ultimate question again
remains “Who owns “Machala?”. This is a question to which an answer may
only be obtained by way of legal process; either by Court litigation or by an
Alternative Dispute Resolution means.
Written Contracts as
the Police
The place of contract
law in policing the entertainment business cannot be understated. Many war
zones or simply, disputes that have so far led to huge economic loss and many
no love-lost affairs in the entertainment industry may have been avoided with
the instrumentality of a well prepared agreement.
A simple Artist
Recording Contract, Employment Agreement or Split Sheet Agreement would have
saved both parties from the embarrassment of which the creative work is now
subjected to.
A clear example how
written contracts can police entertainment business played out in a recent
decision of a Federal Court in the United States, in the case of ERIC ELLIOT
v CARTAGENA delivered in 2022. Fat Joe (Joseph Cartagena) & Remy
Ma as owners of the popular 2016 hit song “All the way Up” were sued by Eric
Elliot who claimed that he had authored and co-own the song but that he was
cheated out of proportion.
What Fat Joe did in
defence was to simply present to the court a draft of the agreement signed by
Eric Elliot showing that he had since been paid off with lump sum of $5,000 for
his contribution in the song. Relying, on the draft agreement, the judge simply
held in favour of Fat Joe and that Elliot had unambiguously assigned any
ownership or copyright rights which he had in the song for the sum of $5,000.
This, thus, show how
a simple written contract can protect interests of parties even after a donkey
years.
It is at this point
that the existence of entertainment lawyers come into appreciation.
Entertainment lawyers are specially trained to protect rights of the
artists/creatives at the infancy stage up until maturity; to draft contracts
that accurately reflect the expectations of the parties and comply with the
requirements of the law; to review contracts and negotiate on behalf of the
artist. Ultimately, entertainment lawyers have a duty to offer legal advise in
order to avoid prospective legal problems.
Summary
Copyright &
piracy being a global problem, is more associated with developing countries
like Nigeria. Copyright piracy has been recognized worldwide as an enemy of
creative arts, intellectualism, entertainment and creativity. It obstructs
genuine investments and corrupts cultural value of a nation.
Copyright
infringement would include distributing, selling, importing or performing a
copyrightable work without the authority of the author or owner of the
copyright in the work. The effect of copyright infringement is that it steals
the joy and hopes of persons who have expended ceaseless efforts towards the
production of a work-thus, preventing them from enjoying their pecuniary entitlements.
However, it may
be difficult to make a claim of copyright infringement in the first place for a
transaction that arose merely from social relationship.
A firm submission
in relation to the Carter Efe v Berri Tiga dispute is that a simple split sheet
contract or an Artist Recording Contract would have prevented the needless loss
suffered by both parties in respect to the production and income on the
internet-shaking song. Although, they both have made comments
about agreeing on a 95%-5% split or a N100,000,000 buy-off, there’s yet to be
presented a concrete evidence of such agreement or not by parties.
Now, because,
parties failed to make a proper legal agreement, they may have to deal with
losing both the prospect of pecuniary gains and promotion which the song could
have earned them- having been suspended from all digital streaming markets due
to the conflict. In other words they both would bear the heavy cost of their
negligence.
BIBLIOGRAPHY
M. Dugeri, Entyertainment Law
in Nigeria (Emerging Trends, Sources, Practice and Precedents), Adcore
Consulting, 2021 P. 6
D. G. Ayeni, Copyright Ownership in Nigeria: A Critical Examination of the Rights
Conferred on Copyright Owners, 2021
©
Samuel
Olufowose
2022