Facing the Music: A Cursory Look at Sampling and Covering of Music in Nigeria, its Legal Implications and the Way Forward

INTRODUCTION

In Africa, music is an integral part of the culture of the people, in fact, Nelson Mandela once remarked that “the curious beauty about African music is that it uplifts even as it tells a sad story.” Such is the level in which music is revered in Africa. Over the years, the continent has produced musicians and artists who have gone ahead to influence generations both within and outside the continent, creating styles such as afrobeat which has gone on to contribute immensely to the world. Originality and creativity are two integral parts in the production of music, an artiste is expected to bring forth his music from within whilst getting a message across or making people dance and as such, he is to be rewarded for his creativity. The protection of musical works is an aspect of copyright. This guarantees the owner of a musical work to the control and management of his work, alienating everybody else from using the music without his authorization.

This article is written in light of the current developments in the music industry, the rise of musical covers in Nigeria, the sampling of songs and lyrical content which has led to accusations of copyright violations as well as its legal implications whilst juxtaposing these developments with that of the United States of America.

COPYRIGHT IN NIGERIA

As a former colony of Britain, Nigeria derives her copyright law from English law in the beginning of the 18th century with the stationers being the chief proponents of exclusive rights against copiers who were offered protection in 1534 against importation of foreign books by the Crown which led to the Charter in 1556 and with further developments including the need for a body of definite substantive rights and for effective procedures to enforce them. These needs were reflected in the Copyrights Act of 1710. By the Berne convention of 1886, a multinational system had been created with copyright given national treatment and this consequently led to the Copyright Act 1911 which was the first legislation to bring all copyrights within a single text and given rights even in unpublished works on a statutory footing. Nigeria introduced the 1911 Copyright Act as an order-in-council in June 1912 and which was eventually replaced by the 1970 Copyright Act which was in turn repealed by the 1988 Copyright Act.

Copyright is the exclusive and assignable legal right, given to the originator for a fixed number of years, to print, publish, perform, film, or record literary, artistic, or musical material. It is a form of intellectual property, applicable to certain forms of creative work. Copyrights are considered “territorial rights”, which means that they do not extend beyond the territory of a specific jurisdiction. A work of copyright in Nigeria by virtue of s.1(1) embraces literary, musical and artistic work, cinematograph films, sound recordings and broadcasts. The requirement for copyright in Nigeria is stated in section 1(2) which is that sufficient effort has been expended on making the work to give it an original character (originality) and the work has been fixed in any definite medium of expression now known or to be later developed from (fixation). The rights could be vested in an author or multiple authors each of whom holds a set of rights to use or license the work, and who are commonly referred to as rights holders. These rights frequently include reproduction, control over derivative works, distribution, public performance, and moral rights such as attribution. The duration of copyright for literary, musical or artistic work other than photograph, copyright in the work will expire seventy (70) years after the end of the year in which the author dies whilst for cinematographs and films, the copyright will expire fifty (50) years after the end of the year in which the recording was made and for broadcasts fifty years after the first broadcast took place.

SAMPLING AND COVERS OF MUSIC

According to Wikipedia, in music, sampling is the act of taking a portion, or sample, of one sound recording and reusing it as an instrument or a sound recording in a different song or piece. Sampling was originally developed by experimental musicians who used edited vinyl on phonographs and it rose to fame in the with the rise of electronic music and disco in the mid-1970s to early 1980s, the development of electronic dance music and industrial music in the 1980s, and the worldwide influence of hip hop since the 1980s on genres ranging from contemporary R&B to indie rock. Often samples consist of one part of a song, such as a rhythm break, which is then used to construct the beat for another song. Sampling does not necessarily mean using pre-existing recordings. A number of composers and musicians have constructed pieces or songs by sampling field recordings they made themselves, and others have sampled their own original recordings. The use of sampling is controversial legally and musically particularly in the area of copyright. Pioneer musicians who used this form did not receive permission from the copyright holders before making music from the samples, as the genre became a recorded form centered on rapping in the 1980s and subsequently went mainstream, it became necessary to pay to obtain legal clearance for samples, which was difficult for all but the most successful DJs, producers and rappers which resulted in a number of recording artists ran into legal trouble for uncredited samples.

In pop culture, a cover version of a song simply means a new performance or recording by someone other than the original artiste or composer of a previously recorded commercially released song originally used as an effort to revive the song’s popularity among the younger generation of listeners after the original song has declined over the years. It exists primarily in three types of entertainers depending on their brand of entertainment. There are Tribute acts who are performers that recreate the music of a particular artiste or band allowing the audience to enjoy the “next big thing” to the original artiste. Cover acts are artists who perform a broad variety of crowd-pleasing songs for an audience, who enjoyed the familiarity of the songs and perform at weddings, family celebration and corporate functions. Revivalist artistes or bands perform an entire genre of music by recreating it and including it to the audience who have not experienced that sort of music before now.

COVERING AND SAMPLING IN NIGERIA AND ITS LEGAL IMPLICATIONS

In Nigeria, music plays an important role in the everyday life and also contributes immensely to the economy. Nigerian artistes are world renowned, earning features with American artists such as Drake, Rae Sremmurd, to name a few. They have also contributed slang with words like “30 Billion Gang”. Nigerians pride originality, innovation and creativity and because of the predominant style of music, “musical beats” are invented in almost every new song, this invariably reduces the attention paid to sampling (or so it seems). A closer look shows that several hit songs contain samples, Lagbaja’s Gra Gra was sampled in Davido’s If; Kojo Funds and Abra Cadabra’s Dun Talking in Davido’s Fall; Wizkid’s Caro in Yemi Alade’s Johnny, the sampling of chords and interpolation of the lyrics of Starboy Nathan’s Come into My Room by Psquare in Temptation. This extends to music videos too with several video directors recycling swiped ideas while shooting music videos for different artists.

Ironically, there has not been a single report of a successful sampling or related copyright suit in Nigeria. The reason for this apathetic attitude raises a lot of questions as the level of awareness of these artistes for their copyright protection, whether these artistes have successfully cleared their samples for use or the tiresome nature of Nigeria’s adjudication system and the relative ease of calling out artistes on radio and social media for “stealing” their songs without informing them.

Recently, popular Nigerian artiste, Tekno dropped his version of a popular song from back in the day titled “kpolongo” by a duo named “Mad Melon and Mountain Black” popularly called “danfo drivers”. One would have expected this to be followed with a suit alleging intellectual theft but rather, albeit a little true to their names, the “danfo drivers” called out Tekno on radio and claimed to be on a manhunt for him. Fortunately for Tekno, he met up with the artistes and claimed the matter has been resolved via Instagram. In as much as the situation may seem laughable, it clearly depicts the current attitude towards sampling in Nigeria.

With regards to covers of songs, there has been an endless love affair with song covers in Nigeria, whether the songs covered are Nigerian hits or worldwide dance tunes as seen with Ycee’scover of Designer’s Panda, Omawunmi’s cover of Adele’s Hello, Maleek Berry’s cover of Rihanna’s Work. There is also the curious case of Destiny Boy, a 13yr old, who makes Fuji covers of popular Nigerian songs and gets major airplay. In the Nigerian climate, there are no express provisions governing covers of songs unlike in other climates where a person must obtain a mechanical license in order to reproduce a song and a synchronization license in order to reproduce a song as a soundtrack into TV programs, movies and commercials. One wonders if maybe these artistes get more accolades than they deserve.

LEGAL IMPLICATIONS OF SAMPLING AND COVERING OF MUSIC IN THE UNITED STATES OF AMERICA

Music sampling is the subject of many legal disputes, chiefly in the realm of copyright law as it applies to musical compositions and sound recordings. Early artistes simply used portions of other artists’ recordings without permission. As soon as music incorporating samples began to make significant money, some sampled artists, publishers, and record companies began to take legal action, claimingcopyright infringement. Sometimes, after the threat or initiation of a lawsuit, such disputes are settled out of court, often with the sampling artist obtaining a license at considerable cost and making other concessions to appease the aggrieved party; other times, the sampling artist contests the infringement claims, such as by arguing in court that the copyright law does not cover their particular use of the work. Up until the 1980s, there was little or no litigation on sampling. One of the first major legal cases regarding sampling was with UK dance act MARRS’ “Pump Up the Volume”. As the record reached the UK top ten, producers Stock Aitken Waterman obtained an injunction against the record due to the unauthorized use of a sample from their hit single “Roadblock”. The dispute was settled out of court, with the injunction being lifted in return for an undertaking that overseas releases would not contain the “Roadblock” sample, and the disc went on to top the UK singles chart.

More dramatically, Biz Markie’s album I Need a Haircut was withdrawn in 1992 following a US federal court ruling, that his use of a sample from Gilbert O’Sullivan’s “Alone Again (Naturally)” was willful infringement. This case had a powerful effect on the American record industry, with record companies becoming very much concerned with the legalities of sampling, and demanding that artists make full declarations of all samples used in their work. On the other hand, the ruling also made it more attractive to artists and record labels to allow others to sample their work, knowing that they would be paid often handsomely for their contribution.

In a more recent significant copyright case involving sampling, it was held that even sampling three notes could constitute copyright infringement (Bridgeport Music, Inc. v. Dimension Films, 410 F.3d 792 (6th Cir. 2005)). This case was roundly criticized by many in the music industry, including the RIAA.

In 2015 American artists Robin Thicke, T.I and Pharrell Williams were sued by the family of the Late Soul singer Marvin Gaye. They claimed they Thicke’s song “Blurred Lines” was a rip off of Gaye’s song “Got to give it up”. Gaye’s family won and the 3artists were ordered to pay 5.3millon dollars to the Gaye’s estate. In an appeal against the judgment, Pharrell and Thicker argued that“inspiration is not copying” but the appellate court upheld the verdict of the trial court that Pharrell and Thicke did in fact illegally borrow from Gaye’s single and ruled that 50% of all royalties from Blurred Lines including the 5.3million dollars should go to Gaye’s estate.

There are ways to use copyrighted work without permission. If you are using the works for education, or research, or you are using it for criticism or you are just commenting about it, then it is under “Fair Use” and you are able to use it without needing any permission. The “Fair Use” doctrine was formed to help with freedom of expression.

Furthermore, as regards covers of songs, once a musical work has been published, anyone can record a cover version of the song by obtaining a mechanical license. A song is “published” when copies or recordings are distributed to the public for sale or rent. A live performance is not publication. The mechanical license only covers the audio portion.

The essence of taking a look at the American system is to show the rate of development and protection of copyright as opposed to the lackadaisical attitude towards protection of copyright in Nigeria. This invariably leads to the next question, what is the way forward.

THE WAY FORWARD

It has been long overstated that there is a need for a thorough review of the Copyright Act 1988, as there have been significant strides made technology-wise and in general human development which was not provided for in the act. If and when the act is reviewed, to ensure greater ease at ascertaining license to the use of music, there should be a provision for obtaining a mechanical license and synchronization license and this must be issued by the Nigerian Copyright Commission or expressly secured by the artists.

Moreover, there should be adequate sensitization of artists by the Nigerian Copyright Commission as well as their various trade unions about the nature of copyright, to understand that paying a music producer to produce a beat or song for them transfers upon a right and that song or beat becomes their intellectual property. The result of which means; any sampling either of the lyrics, instrumental or melody; or the use of the idea in another’s work without their prior permission, sought and obtained by anyone amounts to an infringement of copyright and actions should be brought for redress in court with a claim for damages rather than using “social media justice”. There is an urgent need for a change of attitude within the Nigerian music industry towards plagiarism if we are to move any further and stake a claim in the music world.

Al-Ameen Sulyman is a 400 level student of the Faculty of Law, University of Lagos. He is very passionate about intellectual property, oil and gas law and medical law in Nigeria. He is also the current Public Relations Officer of the Law Students’ Society, University of Lagos and has worked on several committees. He believes the world cannot work without individuals first respecting the sanctity of privacy.

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