By Justin Ige
Alright, let’s talk about songwriting and the law. What is the relationship between the art of songwriting and the law? Where do they meet and what is the effect of the law on the art form?
That area of law that deals with songwriting is on a very broad sense known as intellectual property law. This being that songwriting is the result of intellectual effort, and the product of such effort a form of property. It can be owned just like any other property such as physical properties like cars and jewelry, only that this one is completely intellectual in character.
Intellectual property law has many branches and these include the law of trade marks, patent and designs, copyright. However, that branch of intellectual property law that directly deals with songwriting is copyright law. Copyright law regulates the various issues that come up in the process of writing a song.
Before we go into the details of what copyright actually is and what copyright law is in practical terms, it will be helpful to first identify what song is. What is a song and what are the components or elements of a song? What does a song comprise of? A song can be simply described as words that have been put to music. This means that a song is the combination of words and melody or lyrics and tune.
The interesting thing is that copyright law addresses these two elements of a song both differently as well as a unit. Copyright law administers or recognizes the words of a song as a literary work while it recognizes the melody or tune as a musical work. It recognizes, when both elements come together to form song as a musical work.
Ok before we go too far, what is copyright? And what is copyright law? Copyright is the right to control the doing of certain things in relation to certain forms of intellectual property while copyright law is the combination of the rules guiding the doing of those certain things; these certain things being things such as copying or duplicating, recording, broadcasting, making any cinematographic film in respect thereof and performing in public. Putting this directly against songwriting, one can say that copyright as it relates to songwriting is the right to control the recording of songs, broadcasting of songs, performing the songs in public, making copies of the song, adapting the song etc, while copyright law regulates the doing of all these things.
What the law actually says in respect of certain issues that bother on songwriting would be considered in further episodes but it suffices to mention that songwriting and songwriters are very well considered and provided for under the Nigerian laws and all songwriters and musicians should know what their rights are over their songs, how they can exercise control over their songs and how they can fully utilize and exploit their songs in such a way that would be of economical benefit to them. These are the kind of areas that would be addressed through this platform in further episodes. The law has definitely provided the necessary legal framework. All that is left is for the Nigerian songwriter to understand this framework and be able to best use it to his advantage.
It is not uncommon to attribute the many problems of Nigeria to the government. The problems facing the Nigerian entertainment industry has thus been attributed to the government over and over again. It is not my intention to completely absolve the government but it would be absolutely unfair to say that the government has ignored the plights of the entertainment industry completely or that the government has not taken steps to protect the interests of musicians and entertainers, songwriters inclusive. In all industries, the basic role of the government is to provide the enabling environment for growth and development. Upon the performance of this basic role, it would then be left to the industry stakeholders to work in that enabling environment and through the structures which the government has provided in order to actualize the much desired growth. Government cannot and is not expected to do everything.
What then has the Nigerian government done to provide the enabling environment for the growth of the Nigerian entertainment industry? What structures have been put in place? I might as well mention at this point, though it is not the purpose of this article, that the Nigerian government has just provided a two hundred million dollar fund for the use of the industry. This has been mentioned through different media but was particularly confirmed by Mr. Ben Murray-Bruce, president of the Silverbed group, at the recently concluded Nigeria Music Video Awards (NMVA). More importantly, however, is that we have laws designed to protect the interest of songwriters; and in terms of providing structures, the Federal government, in May 2010, approved the Copyright Society of Nigeria Ltd/Gte (COSON) to look after the interests of Songwriters, amongst others. Many songwriters are unaware of this development and neither are they aware of how they may combine the provisions of the relevant Nigerian laws with the COSON structure to actualize their dreams and get the full reward for their compositions.
It is the responsibility of songwriters or aspiring songwriters to seek out information on how they may fully avail themselves of the opportunities in Nigeria, and to proceed to utilize these opportunities rather than sit back and continue to complain that the government has not done anything. What the government has done so far can be immensely beneficial to a songwriter if fully tapped into.
A songwriter writes songs which are often exploited by singers, record companies, movie makers, advertising agencies, etc. It doesn’t matter if the songwriter actually exists in several of these capacities in relation to his songs as is often found in the country, what matters is that the songs are exploited and that the revenue accruing and accruable to the songwriter from these areas ought to get to the songwriter. The summary of how this is to be done is to ensure that formal and proper contracts are signed between the songwriter and his publishing company, record company, singers or any other person who may put those songs to use through one form of exploitation of the other. The songwriter has a responsibility to join COSON and to keep notifying the organization of all his works and all known uses of his works. More details would be provided in further episodes.
The songwriter is the author of a song and the owner of copyright in the song. He retains legal control of such a song unless he transfers the copyright to someone else. There are several methods through which the song may be exploited; such exploitation not to occur without the authorization of the songwriter any such dealing or use of the songwriters songs would be illegal and the songwriter may proceed to enforce his rights against any such unauthorized user. What then are the processes through which people other than the songwriter may legally use or exploit the song? The songwriter may transfer his copyright in the song to another either by assignment or licensing. These are the only methods through which the song may be exploited legally by another person. By law, an assignment must be in writing while a license need not be in writing. It is impossible to go into the details of these in this article but it is important to note that an assignment transfers ownership of copyright in the song while a license simply permits the use of the song.
One basic way for a songwriter to have his songs exploited and thus earn from them is to sign on to a music publishing company. The songwriter grants rights either by assignment or licensing to the company and the company in turn has the obligation of promoting the songs within the industry and finding opportunities for the song. It is the responsibility of the publisher to find artistes and musicians who would perform and record the songs; record labels, movie makers, television and radio producers, advertising agencies and other users who would use the songs. It is also the responsibility of the music publishing company to collect income from all users secured by it. It is however uncommon to find in Nigeria, dedicated music publishing companies. This is because the music industry has been more of a jungle than a structured industry. It is important to recall the developments in the Nigerian music industry which now allows for the establishment of dedicated music publishing companies. This is primarily the establishment and the approval of the Copyright Society of Nigeria Ltd/Gte (COSON) as a Collective Management Organization earlier this year. This is an opportunity that is now ripe for seizing in this country the enabling environment has now been laid. What we have largely had are record companies and Do-it-yourself (DIY) artistes who self publish. The standard profit sharing formula on published songs between songwriters and publishers is 50/50 but an agreement stipulating otherwise can be entered into. Publishing companies in Nigeria need to join COSON to fully tap into the opportunities now available.
A record company exploits a song by recording the song and exploiting the recording of the song through mediums such as sale of CDs, digital downloads, public performances, and the grant of master use or synchronization rights for movies. All such exploitations should generate income for the songwriter, whether or not he self performed the songs in the recordings. They should generate a continuous flow of income in the form of royalties for the songwriter. The Nigerian music industry has now developed to a stage where all these sources of income can be tapped, where they are no longer theoretical possibilities. It is therefore the responsibility of the serious songwriter to ensure that he signs proper legal agreements for the use of his songs to ensure that his extended interests are covered and protected. All the possible exploitation avenues are to be considered in the preparation of these agreements, and indeed in their execution, whether they are music publishing agreements or record contracts, or any other contract whatsoever dealing with the songwriter, his career or his songs.
Justin Ige can also be reached via justin@creativelegal.com.ng or 08023897112. This article contains general information only and is not intended to replace legal counsel. This article had been previously published, in series, in Justin Ige blog.