Jun 18, 2018

Falz's "This is Nigeria," Davido's "Mind" and the Ubiquity of Copyright Infringement in Nigeria | Lotanna Attoh





By now everyone and their mother must have heard the song "This is Nigeria" by Nigerian rapper, Falz the bahd guy.

The song, a take on "This is America" by his American counterpart - Childish Gambino, has generated quite a bit of controversy in academic and non-academic circles, thus the need for this article.

The artistic quality of the song and video will not be discussed, you can contact me for my thoughts on those; I will only focus on its legal issues. I will also address that of the DMW and Davido assisted "Mind" song. Let's begin.




The Law

The first thing we must realise is that every nation has its own copyright law, and that such laws are not in isolation. What this means is that a nation's copyright law is (ideally) in tandem with international (intellectual property) treaties that the nation is a signatory to.

A number of these treaties exist, each with different provisions. But they all have central themes, or what can be termed as core principles.

Nigeria is a signatory to some of these treaties, the most important being the Berne Convention of 1886. The US, the other country of interest in this article, is also a signatory to this Convention. The provisions of this treaty (and others as well) are meant to serve as a guide to the signatory countries in the formulation of their own copyright laws, using the treaty provisions as the minimum standard that should be implemented in theirs.

On the local front, Nigeria has her own copyright law which was enacted in 1988 via a Decree (No. 47). This law has among its provisions, the core principles stated in the Berne Convention. One of this principles is that of reciprocal protection, which encourages a country to give works made by foreign authors or published in foreign countries, the same protection it gives to works by its own nationals. This principle is contained in section 5 of our Copyright Act, and it protects such works where the country of publication is a signatory to the same treaty that Nigeria is a signatory to.

In the US, this same reciprocal-protection provision exists in their 1976 Copyright statute, but the crucial provision to this discourse is that contained in section 115, which deals with "covers" and their attendant licences. In a nutshell, this provision states that a musician who wants to "cover" or do an interpretation of another's song, need not obtain permission from the original author; but if that musician's "cover" is intended for commercial purposes, then the musician must pay the author of the original some royalties/percentage on each copy of the "cover" sold. This percentage is already set by the law. No such provision exists in our Copyright Act.



"This is Nigeria"

The question here (and in law, most importantly) is: what is Falz's "This is Nigeria"? To answer this, we must first state what it isn't: "This is Nigeria" is not an original song. Why? Because the music (the beat) to which the rapper raps on is an exact copy of that which  the American rapper, Childish Gambino, raps on in "This is America," the original and that which preceded "This is Nigeria."

So, what then is it? Under the law (US copyright law) and in music culture, it can be only be one of 2 possible things: a cover or a parody. These 2 categories each have their implications.

A "cover" as we have seen is a kind of defence recognised under the US law, and is defined as a work which does not alter the "basic melody and character" of the original (section 115).

A parody, meanwhile, is another defence to copyright infringement in both the US and Nigeria's (see the second schedule to our Copyright Act) copyright laws. On this (parody), I will rely on the US legal jurisprudence, as ours is unfortunately grossly lacking in this and many other areas. There, a parody has been interpreted by the courts as a work which takes the vital elements of an original work and uses it to either comment on that work or for comic relief. This the court held in the Campbell v Acuff-Rose Music, Inc. case [510 US 569(1994)], which was a case involving an infringement of the song "Oh, Pretty Woman" originally composed by Roy Orbison, by the rap group 2LiveCrew. Curiously in this case, the crew when sued claimed the defence of parody, and not that of a cover. And the court (the Supreme Court) ultimately upheld their parody defence, stating that their rendition of the song, qualified as a parody.

From these 2 concepts, I believe that "This is Nigeria" can only fall under the "cover" category. One, because Falz's version does not in any way ridicule or comment on Gambino's "This is America"; it does the opposite of ridiculing: it comments on topical issues in the Nigerian society, and two, in hip-hop and music culture in general, when an artiste takes a beat (music) of another artiste and does an interpretation of it, either using his own lyrics or that associated with the original, such a song is termed a "cover." In Mr Falz's case, his "This is Nigeria" had his own lyrics on the same music (beat) that Gambino's "This is America" did.

We now know that Falz's "This is Nigeria" is a cover (under US law and music culture in general), what then are the implications?

As we have seen, in the US, the implication is that royalties must be remitted to the author of the original where the cover is for commercial purposes.

Two questions thus emerge: (1) is Falz's "This is Nigeria" a commercial work? and (2) would this US cover-licence provision apply in Nigeria? To answer the first, I will first have to answer the second.

The US cover-licence provision (section 115) cannot apply to Nigeria. This is because section 5 of our Act (mentioned above) provides that the protection offered to works by foreign authors or works published in foreign countries, is that which is offered to works by nationals. And in the Nigeria Copyright Act, there is no such protection that provides for "covers" or their licences, or fees for such licences. Hence, such a protection cannot be offered to foreign works/authors, due to its non-existence.



Since the Nigerian Copyright Act does not recognise "covers," what then is "This is Nigeria" under the Act?

Simply put, "This is Nigeria" is a copyright infringement. It is an infringement of Mr Gambino's "This is America" song and video. This infringement can be seen by the provisions of section 6 (2) of the Copyright Act. Section 6 (1) provides for the rights (right of reproduction, distribution, publication etc.) which authors of various works (literary, musical, artistic, and film) enjoy, and subsection (2) of that section further states:

The doing of any of the acts referred to in subsection (1) of this section shall be in respect of the whole or a substantial part of the work either in its original form or in any form recognisably derived from the original (italics mine for emphasis)

This provision is clear enough. So then the question is if both works, "This is Nigeria" and "This is America," (their songs and videos) are placed and viewed side-by-side, can "This is Nigeria" be said be to have been "recognisably derived from the original"? No? You must either have not seen/heard "This is America" or you are just a die-hard fan of Mr Falz. Either way, you would be still be wrong. "This is Nigeria" is clearly (in the music/beat, the melody, and the video) derived from the original work - "This is America."  This is thus the protection that will be offered to Gambino's "This is America" under section 5 through the provision of section 6 (2).

On the second question of whether "This is Nigeria" is a commercial work, there are several layers and ways to look at it.

First, we have stated that our Copyright Act makes no provision for a "cover," cover licences, or their fees; and thus "This is Nigeria" isn't one (under our law), and Mr Gambino will not be able to recover from Mr Falz on that ground. But our Act provides an author of a work the exclusive right of performing the work in public, and broadcasting or communicating it to the public. See section 6 (1) (a) (iii) and (vii) of our Copyright Act. And through section 5 (our reciprocal-protection section), works by foreign authors, in this case "This is America" by Childish Gambino, are granted these same rights. Thus, Childish Gambino has the exclusive rights to perform his song "This is America" in public and broadcast/communicate it to the public. And any one, other him, who performs either the whole or a substantial part of his song "either in its original form or in any form recognisably derived from the original" will have infringed on this his exclusive right. It is thus in Mr Falz's exercise of these 2 rights granted to Mr Gambino that will determine the commercial nature or otherwise of his "This is Nigeria."

First, to the best of my knowledge, Mr Falz did not put the song up for sale upon its release, so from that it can be said that the song was not for commercial purposes (but then, how many Nigerian artistes put their songs up for sale upon release?)

The real test I believe is from the performance and  broadcast/communication of the song.

On performance, if Mr Falz performs the song (with the music) in public at any event he is contracted to perform, he will have infringed on Mr Gambino's exclusive right of public performance. And if he is paid for those performances, then it can be rightly said that the song is indeed meant for commercial purposes.

Also, where radio and TV stations play the song (and Mr Falz acquiesces to such plays by keeping mum), he and these stations will have infringed on the broadcast rights of Mr Gambino. This too will show that the song was created for reasons other than 'patriotic' ones. For Mr Falz knows that royalties will accrue to him for plays of the song (and others) at the end of the year from the Copyright Society of Nigeria (COSON), our performance rights organization.

Lastly, another clear sign of the song's commercial nature is the fact that a video was created for it and put up on YouTube. Those familiar with the YouTube model know that YouTube puts up adverts on your channel after your video attains a certain number of views, and subsequently pays you for the advert(s) placed. So, the more views you have on your videos, the more likely you are to have adverts placed on it, and the more money you make. As I write this, "This is Nigeria" has 5.8 million views and counting. I just wonder why YouTube hasn't taken it down yet....This could be because (1) Falz credits Gambino and (2) as at when l viewed the video last, there are no adverts attached to it.

To conclude on Mr Falz and Mr Gambino, we can succinctly summarise that:

(1)  the works of foreign authors have copyright protection under our copyright law (section 5)

(2)  this protection is given to those works published in countries/by authors residing in such countries that are signatories to the same treaty as Nigeria

(3) the US and Nigeria are signatories to the same treaty (the Berne Convention)

(4) "This is America" by Childish Gambino is an original work published in America and whose author resides in America

(5) "This is Nigeria" by Falz the bahd is not a "cover" under the Nigerian Copyright Act

(6) "This is Nigeria" is a work that infringes on the rights (given by our Act) of Childish Gambino in his work - "This is America"

(7) "This is Nigeria" may or may not be commercial work, depending on some factors and circumstances.

I will not be able to state here the ways in which Mr Gambino can seek redress for this infringement as that is another topic deserving of its own article.



"Mind"

Unlike Mr Falz's "This is Nigeria," the Davido and his DMW affiliated song - Mind - is pretty much straight forward, as it does not pose the question of it being a "cover" or not. It's an original song. And in that originality, lies a most blatant piece of copyright infringement you will ever hear anywhere.

The infringement is in the song, "Caught Up" by the American artiste, Usher Raymond. This song was released sometime in November 2004 from Mr Raymond's 2004 Confessions album; and almost 14 years later, it was resurrected to be blatantly and shamelessly copied by Davido and his co-horts. 

The part copied/reproduced, and now performed, distributed, broadcast and communicated to the world is the hook/chorus in the Usher song. It goes thus:



"I'm so caught up,

Got me feeling, caught up,

I don't know what to do,

You got me losing my cool, caught up..."

In the Davido song, he and each one of  his DMW crew, sing those exact same words (and in the exact same melody sung by Usher) of Mr Raymond's "Caught Up" chorus as the bridge leading to the main hook in their "Mind" song. The boldness of this infringement left me embarrassed and flabbergasted at the same time; I just couldn't believe what I was hearing. The gusto with which they sang it was simply incredible. But then I wasn't too surprised as this is Nigeria, isn't it?

The same section 5 (analysed above) of our Copyright Act will apply to this instance of copyright infringement. As it involves a work published in a country (US) and by an artiste resident in that country, which is signatory to the same treaty (the Berne Convention) Nigeria is a signatory to. Also, the infringement is not in doubt as it clearly violates the exclusive rights granted to the author (Usher in this case) under section 6 of the Act.

And unlike Falz's "This is Nigeria," whose commercial nature is in doubt, that of "Mind" is not. The song was released as a single to a forthcoming album by Davido's DMW crew. Thus, Usher will be entitled to not only damages for the infringement, but also whatever profits the single has made and will make.

The only possible defence that Davido and his DMW crew may have is that of lack of knowledge provided for under section 16 (3) of our Act. But that defence may not hold water in court, as I am pretty sure Davido and his crew must have heard the Usher song when it came out 14 years ago and thus aware of its existence, because it was a hugely successful and popular song in the US and the world. I for one did hear it when it came out that year (and I am not that old). And in the unlikely event that this defence should succeed, they would still be liable to give Mr Raymond an account of profits made from the song (see section 16 (3) of our Copyright Act.)

The above is in the assumption that Davido didn't seek Usher's permission for the use of his and the writers' (Jason Boyd, Ryan Toby, Andre Harris and Vidal Davis ) "Caught Up" chorus.

If he did, then all the accolades and more go to him.



The Opinion

In addition to the 2 cases of infringement mentioned above, other alleged instances of copyright infringement have occurred this year. The cases of Simi's "Joromi" and Tekno's "Jogodo" come to mind. What is worrisome and ironical is that in all these cases the alleged infringement is being done by the artistes themselves: people who should know better and whom the Copyright Act seeks to protect.



What then could be the reason for this?

I am tempted to say that ignorance of the law is the major reason for this problem, but I refuse to believe that. Because apart from the fact that these artistes must have some basic knowledge of copyright law, they (the A-list ones) have professionals working with them who do know more about these laws and their applications and implications.

If this is the case, and I believe it is, the only reason why such cases of infringement occurs is because the artistes decide to take the risk (especially where the work copied is a foreign one), despite this complicit knowledge. This decision might seem a good one in the artistes' eyes as their only concern is in getting that hit song (enter "Mind"), but it is a myopic, expensive, and quite frankly, foolish decision.

It is myopic in the sense that, unknown to the artistes, such decisions to infringe set an example for other artistes (budding and established), and creates a false  impression in the music industry that copyright infringement is okay, and without consequence. This impression creates a culture of noncompliance with copyright law, and further weakens the machinery of the already weak copyright system. If artistes are the ones flagrantly breaking copyright law, what hope does the system have?

This impression is what Davido and his crew have created (if they didn't take permission) by using that aspect of Usher's song in their "Mind" song. With Falz, to be fair, he (on his Youtube channel) calls his "This is Nigeria" a cover and also credits Childish Gambino. Still, the rate and manner at which these cases of infringement are occurring is a cause for concern.

Lastly, such infringement decisions are in the long run, expensive. This is because when (that day is coming) a person is sued for such infringement and wins, the amount that the infringer will pay as damages, attorney fees, costs etc. will be far outstrip the gains made from the decision taken to infringe on that person's right.

Artistes should be the ones aggressively promoting and protecting copyright laws and the system. They are the ones with the largest stake in it, and not doing so or doing the opposite is worse than suicidal.

A 2000-plus word article is more than enough for the wise.



I remain a Minister in the Temple of Justice.



L. Attoh Esq.

Photo: Google Images
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