The growth in Nigeria’s entertainment industry calls for more sophisticated legal foundation!

There has always been entertainment, long before you were born. There has always been owambe. People have always chattered about one star or the other. There has always been music, people deft and dexterous with the talking drum; legendary singers who performed in marriages and masquerade festivals. Kings, emperors and Obas had dedicated musicians. There were comedians, court jesters, clowns. Games were played. We were told tales that men wrestled and the prize was the hand of the princess in marriage (you may still catch a glimpse of this in a handful of Nollywood videos).

The question: what is entertainment will always remain unanswered. It is unclear whether entertainment has a pragmatic relevance to human life or whether it is intrinsically an end in itself. There are arguable a zillion things in the world that people could find entertaining and there is probably more entertainment than people are willing to recognize. Yet, there is no consensus. Peter Voderer in one of his academic writings noted that one of the misconceptions of entertainment is an attempt to equate it with the media. This view is readily attributed to the dominant role the media currently plays in entertainment, both in the production and the conveyance from the point of production to the audience

Entertainment no longer means “to entertain.” It has taken up a technical connotation with the advent of the media and should rightfully be distinguished from fun and recreation. So we can banish boozing, weeding, gossip, partying, sports and games from entertainment. It is now even difficult to accommodate books and print works within the street meaning of entertainment. There might just be too much “education” and “information” in written literature for it to qualify as entertainment. However a few novels still show up in entertainment news especially when they have been made into movies; and of course, celebrity magazines (not TELL Magazine or Newswatch).

Improvements in the electronic media have been the driving force in entertainment. Hundreds of years after the print media was invented, the world has recorded stellar breakthroughs in developing new media. The invention of the radio, recording devices, broadcasting, television, the computer, internet and the handheld devices set the stage for the emergence of a fast growing industry – the entertainment industry. A handy testimonial is the current rebased economy of Nigeria where the music industry and the Nollywood were identified as major catalysts of the GDP growth. This success should be attributed to the increased access to technology which increased the consumer base of entertainment.

With improvements, sophistication and refinements in sound and visual which now are propagated through many means and devices, the global appetite for entertainment is even more whetted. Artistes and actors and actresses are becoming very popular. And as the societal attitudes towards music and acting loosened up, greater number of people now go into those ventures. You can compare the plight of Charlyboy Oputa whose parents almost frustrated from taking up a career in music and Naeto C, the son of a former Minister, Kema Chikwe who appears to have faced no publicly recognizable opposition from family. Families now encourage their children to go for talent shows like X-Factor and reality shows like Big Brother Africa. The industry grew.

The majority of the world is only interested in the consumption of entertainment. That is natural and very usual. It is not their business to know what goes on behind the stages, just as it is not the business of a man in the beer parlour to understand the processes and the structures of the brewery. The consumers of entertainment barely see beyond the screens, sounds and scandals to the sophisticated legal structures that underlie the industry. Of course, law is boring, unentertaining, but it is doubtlessly the pillar that holds the entertainment industry, just as it does every other industry.

The economic value in the entertainment industry is the ability of performers to protect their right to their products. The law of copyright becomes even more important given the increasing complexities in the industries like music labels, music groups or bands formation, band split-ups and most especially, the internet and social media use.

I will boldly repeat, the only financial value in entertainment is copyright. Without copyright, nothing legally distinguishes Andy Best movie production company from the alley gangs who produce the 20-in-1 DVDs. Every contract negotiated in the industry ultimately boils down to ownership of copyright. Let’s take for instance the movie “Half of a Yellow Sun” that was an adaptation of Chimamanda Adichie’s novel. The only bargaining chip Adichie had was her copyright in her novel and that was why she was paid. Why would the producer invest so much into the making of the movie if everyone else could package it and sell? This also applies to music. Because copyright is property, it could be transferred, leased, interfered with, sold and of course stolen. Piracy or copyright infringement is viewed globally with the same disgust as stealing or robbery because it deprives the real owner of the copyright of his or her yield. However, the seriousness with which it is viewed in Nigeria undermines its importance.

Bring on P-Square. Nigerian music lovers were waiting for the break-up hammer to fall on the twin. The duo is unarguably the most popular and successful Nigerian music group ever; they have melodiously sang about their strength in unity. They definitely will not be the first to break up and they can find mentorship in Plantashun Boyz or even the Oriental Brothers who dramatically split. Probably music fans would pick a side while the monoatomic Ps would engage in a war of lyrics against each other. As a lawyer however, I would see a breakup of a partnership and would try to imagine the legal aftermath. Can one of the Ps still continue answering P-Square or are both entitled to use that name? Who has the right to perform “No One like you” during my wedding? And what happens to their endorsement by Glo? Is there a sharing formula for proceeds of sale of their joint albums?

While I would assume that most music groups in Nigeria have a sort of a contract binding them, I am pessimistic that copyright issues are considered with seriousness. For example, I still wonder which among Tuface’s multiple award winning “African Queen” and Black Faces unsung “African Queen” is or ought to be the original. I heard of no copyright dispute arising from this.

The attitude is very different in developed countries. Recall the case of Destiny’s Child? LeToya Luckets and LaTavia Roberson were part of the girl band when they sang “Say My Name” but were removed from the group before the video was shot. They were replaced in the video by Michelle Williams and Farrah Franklin who lip-synced LeToya and LaTavia’s parts in the song. This led to a copyright battle which was later settled out of court. There are a lot of other cases in the United States of America involving copyrights and contractual issues as a result of band split-ups or termination of recording contract. This is an indicator of the awareness of the value of copyrights in the American entertainment industry.

I had the opportunity of interacting with the legendary Clive Davis, the producer who birthed and nurtured the careers of many American music talents including Whitney Houston’s. I am compelled to mention that he is a Harvard Law School graduate and an inductee of the Rock n’ Roll Hall of Fame. He gave me much insight into the roles of the law in the development of the American Music industry from negotiation of contracts, protection of copyrights, and settlement of disputes. It is worth noting that only a fraction of Whitney Houston’s songs were actually written or co-written by her. Indeed, most of her songs were re-enactments of other people’s songs including her most popular hit songs “I Will Always Love You” and “I Wanna Dance with Somebody.” It therefore means that Whitney’s music career was forged upon meticulous copyright negotiations. If not, Whitney Houston’s career would have been littered with copyright infringement suits.

Even retired and dead musicians whose copyrights have not expired continue to earn from remixes, public performances of the songs or their uses as theme radio or TV theme songs or movie sound track.  There are even on-going deliberations in the USA that the permission of artistes must be obtained, even on conditions of financial compensation, before their works are aired on the radio or TV.

The growth in Nigeria’s entertainment industry calls for more sophisticated legal foundation. It calls for higher involvement of lawyers in the negotiation of contracts and management of deals and rights. While entertainment has become more easily available due to developments in the media, Nigerians must always bear in mind that it is somebody’s trade or investment. Ownership of copyright should be contractually pre-determined by the players in the industry. It is high time Nigerian musicians stopped being just flattered when their songs are used as movie sound tracks, or advert theme songs or jingoes or remixed by a more popular singer. For the real owner of that song “When Jesus Says Yes, Nobody Can Say No” which Michelle Williams Featuring Beyonce et al has shamelessly sang and appropriated, stop blushing, someone is feeding off your sweat!

As I said before, law is boring, but indeed if Nigeria’s entertainment industry wishes to consolidate its position as a major economic driver, it must become the champion of copyrights protection preferably at the time of forging the contracts but, nevertheless, also when disputes arise.

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