Re: Musical Society of Nigeria at 30; Nollywood at 20 (Nigeria’s Entertainment Industry Coming of Age)
MUSON recently celebrated its 30th anniversary celebration. Nollywood is set to kickoff its 20th anniversary celebration. These are without doubt important milestones in the history of Nigeria’s entertainment industry. I don’t want to let it pass just like that. To support this nascent industry, congratulate them on their achievements, and identify legal issues that they are bound to confront in the future, I have put together a series of article that touch specifically on Intellectual Property and the Entertainment Industry with focus on copyright and trademarks (these are “hot” issues here in the US and around the world). This is the first.
Robin Thicke (“Blurred Lines”) v. Marvin Gaye: Copyright Lessons for The Nigerian Music Industry
Copyright issues are ubiquitous in the entertainment industry. An artist accused of infringing another’s work can be shammed and devastated by such accusation and may be forced to cough up millions in monetary damages if a copyright infringement claim is instituted and won. Conversely, an artist stands to lose millions if his/her work is misappropriated by another.
Enter Robin Thicke. In the United States (U.S.), one of the hits of summer 2013 was “Blurred Lines” (a.k.a. the Song of the Summer of the Century) by Robin Thicke, Pharrell Williams, and Clifford Harris Jr..So popular was the song that it reportedly topped the Billboard Hot 100 chart for about eight weeks this summer. This should be good news for Robin Thicke and friends but for the crinkle in the story. The problem is that there appears to be some similarities between “Blurred Lines” and “Got to Give It Up” a 1970s hit by Marvin Gaye.
A New York Times critic commented in an article in the New York Times (8/2/2013) that Blurred Lines “is influenced heavily” by Marvin Gaye’s “Got to Give it Up.” In a May 2013 GQ interview, Thicke, also acknowledged that Blurred Lines was influenced by Marvin Gaye. Asked what the story behind “Blurred Lines” was, Robin Thicke responded, “Pharrell and I were in the studio and I told him that one of my favourite songs of all time was Marvin Gaye’s “Got to Give It Up.” I was like, “Damn, we should make something like that, something with that groove.” Then he started playing a little something and we literally wrote the song in about a half hour and recorded it. The whole thing was done in a couple hours—normally, those are the best ones.”
Marvin Gaye is dead so why does it matter if a 2013 song sounds very similar to his old song? Two problems at least. First, the copyright in a song does not end with the death of the songwriter. Copyright can last for several years or decades after the death of the author.
This is important because although an intangible property, copyright is a very valuable property right that is transferable and assignable. In Marvin Gaye’s case, copyright in his song belongs to his descendants. Second, the line between being influenced by a prior work and actually infringing such a work is very thin but one that nevertheless exists and should never be crossed. Was this line crossed in the present case is the big question. Fearing a potential lawsuit from Marvin Gaye’s descendants, on August 15, 2013, Thicke filed a lawsuit in a California federal court against Marvin Gaye’s estate. Essentially, this was a pre-emptive strike.
Thicke, essentially sought a declaratory judgment that Blurred Lines does not infringe on Marvin Gaye’s “Got to Give it Up.”The court will have to determine whether Thicke was merely inspired by Marvin Gaye’s song or whether he actually produced a song that was substantially similar to Gaye’s song?
There are many lessons that Nigerian Artists can draw from Thicke’s recent copyright saga. These lessons are important because virtually every country in the world has laws protecting copyrights in musical works and even sound recording. In Nigeria, copyright is protected by the Copyright Act (Cap. 68) Laws of the Federation of Nigeria 1990 (“Nigerian Copyright Act”). Thicke’s case offers at least ten lessons for Nigerian artists:
1. In many countries, musical works and sound recordings are protected by copyright. Under Article 1 of the Nigerian Copyright Act, musical works, artistic works, and sound recordings are all eligible for copyright.
2. Only musical works that are original and fixed in a definite medium of expression are copyrightable in Nigeria. Article 1(2) of the Nigerian Copyright Act stipulates that a literary, musical or artistic work shall not be eligible for copyright unless: (a) “sufficient effort has been expended on making the work to give it an original character;” and (b) “the work has been fixed in any definite medium of expression.”
3. Copyright is a bundle of rights that gives to the owner certain exclusive rights. Section 5 of the Nigerian Copyright Act stipulates that copyright in musical works shall be the right to do and authorize the doing of a number of acts including: reproducing the work, performing the work, distributing the work, displaying the work, publishing the work and broadcasting the work.
4. Copyright in sound-recording is an exclusive right in Nigeria to: (a) “the direct or indirect reproduction, broadcasting, or communication to the public of the whole or a substantial part of the recording either in its original form or in any form recognisably derived from the original” and (b) “the distribution to the public for commercial purposes of copies of the work by way of rental, lease, hire, loan or similar arrangement.” Article 6 of the Copyright Act.
5. Just because a song is old (e.g. from a different decade) or because whether the author is long dead does not mean it is not protected by copyright and can be misappropriated by another artist. Copyright in a song subsists long after the death of the original artist. The duration of copyright varies from country to country and frequently depends on the type of work in question. In Nigeria, copyright in musical works subsists for seventy years after the end of the year in which the author dies. Copyright in sound recording lasts for fifty years after the end of the year in which the recording was first made.
6. To infringe the copyright in a protected work, an artist need not copy the lyrics verbatim. Infringement can be found if the works are substantially similar in terms of the rhythm, bass, and riffs.
7. Copyright law protects expression of ideas but not ideas per se. Thus, ideas can be taken but not the particular way an individual artist expressed the idea. In Feist Publications, Inc. v. Rural Telephone Service Co. (499 U.S. 340 (1991), the U.S.Supreme Court noted that “[t]he most fundamental axiom of copyright law is that ‘no author may copyright his ideas.’”
8. In the US and most other jurisdictions, to prevail in a copyright infringement action, the plaintiff must prove three main things: (1) that the plaintiff owns a valid copyright; (2) that the defendant actually copied the work; and (3) that there is substantial similarity between the defendant’s work and the protected aspects of the plaintiff’s work.
9. Most countries provide exceptions from copyright. One major exception to copyright control in Nigeria is the “fair dealing” exception. The law allows for “fair dealing for purposes of research, private use, criticisms or review or the reporting of current events, subject to the condition that, if the use is public, it shall be accompanied by an acknowledgment of the title of the work and its authorship.” All the exceptions can be found in the Second Schedule to the Nigerian Copyright Act.
10. The Third Schedule to the Nigerian Copyright Act provides for “Special Exception in Respect of Records of Sound Recording.” Ideally, every music artist should understand what this exception means and how and when it can be successfully used.
So does “Blurred Lines” infringe Marvin Gaye’s rights in “Got to Give it Up.” Is it copyright infringement when one artist produces a song that is similar to another song in terms of the bass, the percussion, and other compositional features but not the words? The plot has recently thickened.
On October 30, 2013, the children of Marvin Gaye filed a copyright infringement action against Thicke, Williams and Harris Jr., and also against music publisher, EMI April. The suit alleges multiple acts of infringement. The lawsuit just filed in the US district court in Los Angeles is at the very preliminary stages. Stay tuned.
In conclusion, the Nigerian music industry is coming of age. Presently, the main copyright issue the industry faces appears to be counterfeiting and distribution of fake works in the major markets in the country. However, as the industry matures, issues relating to copyright infringement (whether one artist “stole” another’s work) will become more common. Nigerian musicians need to know and understand the basics of copyright law.
Robin Thicke and friends should be enjoying the pleasure that comes from having produced a song that is considered “the hit of the summer” but instead they are bogged down by accusations of copyright infringement. Robin Thicke’s saga teaches that it is one thing to produce a “hit” song and quite a different thing to produce a song that is original and is not tainted by accusations of copyright infringement. With basic lessons copyright law, established artists in Nigeria as well as up and coming ones can understand the copyright pitfalls in the music industry and become savvy about protecting their valuable intellectual property rights as well as shielding themselves from accusations of plagiarism and copyright infringement.
Professor Uche Ewelukwa Ofodile
LL.B. (Nig.), LL.M. (London), LL.M. (Harvard), S.J.D. (Harvard)
By: Uche Ofodile