By Justin Ige
What if I were D’Banj, the Koko master; or DJ Zeez, the 04kasibe crooner? What if I wanted to make more money from my creativity? What if I wanted to stop others from making money from my creativity without any recourse to me, would I be greedy or simply industrious? Industrious, I would say.
Say, Coca-Cola took the phrase what is the Koko? or simply, the word, Koko and used it in an advert? What if, instead, the advert read something like drink Coca-Cola and your ori must 4kasibe? Would a D’Banj or DJ Zeez, respectively, be able to lay any claims? Would a Coca-Cola be liable? Maybe another artiste started using these expressions in their own songs; maybe it’s a movie producer or some other person or company taking advantage of others creativity? Maybe we ll just call them copycats or better still, cats infringing on copyrights.
It is not unknown that the expression, let’s go there! is a product of 9ice’s creativity. This is not to say those words have never been used or that they never existed before 9ice used it in his music. It is also not unknown that the expression has been used severally, after he popularized it, by others with or without commercial exploitative intent. If it is true, and it is, that more often than not, these creative minds do not create these words and expression and can therefore not be called creators, what rights could they possibly have over those expressions? What could they have done to put them in a position of advantage? It is very important to note that the peculiarities of each and every case would determine the answer to these questions. The angle of law from which the issue is viewed would also determine the answers.
I, however, state categorically with regard to these examples and similar circumstances that as a result of the way these artistes have used these expressions they have achieved secondary meaning which is distinctive and without which these same expressions would lack the value they now possess in the world of commerce and advertisements. The use of these expressions immediately causes the mind of the audience to be directed at their favorite artiste, and an immediate connection is made between the artiste and the advertised product. The product then registers in the mind of the audience more quickly and more effectively as a result of the connection. The use of such expressions in adverts automatically makes such advert more effective as the adverts are more easily noticed and remembered thereby creating a longer lasting impression. It could also create a mild and subconscious; or a bold and conscious impression of endorsement of the product by the artiste in the mind of the audience. All these add value to the image of the product and facilitate better patronage eventually. The possibility of the artiste getting financial returns from this added value is what this article is about.
Added value or no added value, what rights do the artistes have? The expressions being their creations or not, what rights or interests can they claim legally? The artistes may be clothed with the legal term, authors, having written the expressions as lyrics of songs; in other words, assuming the status of authors of a literary work, this is one legal perspective to look at it. However, are these arguments enough to grant the artistes rights under the law, and to make unauthorized users liable? These and these alone, as arguments, could definitely be weak ones but there are other arguments (depending on the peculiarities of each case) to which these would certainly lend some very useful weight. On the defensive, arguments of fair use or fair dealing can equally lend some weight to other arguments.
There are, however, actions which a creative mind can certainly take under the law to solidify his position and to protect his interests. These actions will be looked at but without any doubts, it is worth saying that there is a lot of room for growth and development in our creative industries.
When a ‘D’banj coins a phrase or word and uses it in his music, the expressions become popular as a direct result of the use. When these expressions become popular, they immediately become signatures that identify and represent the artiste, his music, his image and what he stands for. They identify the services the artiste renders and these very well includes endorsement and advertising services. They distinguish the artiste and his services from other artistes, his competitors.
With a well-managed brand and image, the endorsement of products by artistes can be of immense value to the advertisers. An effective way of doing this is to use the phrases or coined words in adverts or product representations thereby creating a connection between the artiste and the advertised product. By so doing, the advertisers benefit from the goodwill of the artiste. This method of exploitation of goodwill can be easily utilized without direct reference to the artistes, and the difficulty in ascertaining or claiming any rights in these expressions makes the artiste more vulnerable.
In my opinion, the best and most effective way which an artiste has is to look for a solution in the law of trademarks. He may also rely on some of the aforesaid arguments to strengthen whatever solution may be found in the law of trademarks. To effectively utilize the provisions of the trademarks law might imply that the artiste deliberately determines what words, slangs or expressions he wants to dispose to this form of exploitation in the world of commerce, advertisements, and endorsement. He would need to design and utilize the expressions in such a way as to be covered as a trademark. He would then need to register them so as to be protected. He may do this only if he is still in the process of writing the music. If he has already written the music, finished production and released the music, he is left with the alternative of post-production evaluation. He can examine the expressions, which may have now attained popularity to find if they are eligible for registration. If he finds that they are eligible, he may then proceed to register.
The tests the expressions need be subjected to include the following:
1. Whether the expressions are a visible sign as opposed to sounds or smells. Most of these expressions can very well be recognized as visible signs. For examples, 4kasibe, kokolet, free me now!
2. Whether the expressions are distinctive. Are they capable of distinguishing the services of D’banj or Mo hits music enterprise from Mo cheddah of Knighthouse entertainment enterprise? Are they capable of distinguishing D’banj from DJ Zeez? An expression may be inherently distinctive if it is fanciful or arbitrary. An example of this can be found in kokolet or more recently, mamalet. Expressions such as let’s go there! or free me now! are not inherently distinctive as they are not arbitrary or fanciful expressions but they can be said to have acquired distinctiveness through use.
3. Whether the expressions are capable of misleading the public, especially in a way that might create unfair competition or give the artiste an unfair advantage over other artistes.
4. Whether the expressions are contrary to public order or morality.
If it is determined that the expressions pass these tests, the artiste may then proceed to have the expressions registered.
An infringement of the right of the artiste in these registered expressions occurs when any person who uses an expression so closely resembling the registered expressions as to likely deceive or cause confusion in the cause of trade. It is not the differences between the registered expressions and the used expressions that count but their similarity. The similarity may be based on how the expressions look on paper or even how they sound being pronounced. Once it can be taken that there is so much similarity that the used expression can deceive the audience and direct the mind of the audience to the artiste, an infringement of the artistes right has occurred.
An artiste, whose right has been thus infringed upon, can get from the court, a couple of reliefs. He may be awarded a sum of money in the form of damages, the court may also order that the infringement be discontinued, that is, the use of the infringing expression be stopped. Depending on the facts of each case and proof adduced, the artiste may enjoy the said reliefs and more.
Justin Ige can also be reached via email@example.com or 08023897112. This article contains general information only and is not intended to replace legal counsel. This article had been previously published in Justin Ige blog.
By Justin Ige