By Samuel Olufowose
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.
Samuel Olufowose, (Inte-tainment Law Club)
©2022
BIBLIOGRAPHY
- Dugeri, Entyertainment Law in Nigeria (Emerging Trends, Sources, Practice and Precedents), Adcore Consulting, 2021 P. 6
- Ayeni, Copyright Ownership in Nigeria: A Critical Examination of the Rights Conferred on Copyright Owners, 2021