By
Uchechukwu Ernest Amaefule
1.0 INTRODUCTION
Most of the songs we sing every day, even in churches, are copyright works of some authors, but we tend not to be aware of this fact. Unlike trademarks where registration of the mark is required for statutory protection, copyright vests automatically on the author/owner of the work immediately the original work is expressed and fixed in a definite medium. In Nigeria, the following works are eligible for copyright protection: literary works; musical works; artistic works; cinematograph works; sound recording; and broadcasts.[1] A literary, musical, or artistic work becomes eligible for copyright when sufficient effort has been expended on making the work to give it an original character; and the work has been fixed in any definite medium of expression from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device.[2] The ownership of a copyright work vests in the first instance on the author subject to any contract/agreement to the contrary.[3] The copyright owner acquires certain exclusive rights – to reproduce the work, to distribute, to make an adaptation, and publicly perform or display copyrighted works.[4] Thus, the copyright owner has the right to stop any person from exercising any of these exclusive rights without his/her consent and authorization. Any third party exercising any of the exclusive rights of the copyright owner without the owner’s consent and authorization is liable for infringement – both civil and criminal.[5] In this paper, we shall examine the copyright culpability of the popular music “cultural praise” by popular Nigerian artiste Kcee.
2.0 EXAMINATION OF THE COPYRIGHT CULPABILITY OF THE SONG“CULTURAL PRAISE” BY KCEE.
Kingsley Chinweike Okonkwo popularly known by his stage name Kcee, is a Nigerian singer, songwriter, recording artiste, stage performer, model and philanthropist. Kcee is signed unto Five Star Music record label. Kcee released an album titled Cultural Praise Volume 1 in December 2020. The album which featured the Okwesili Eze groupis 9 minutes 17 seconds in duration. It is a compilation of about 12 popular Christian praise songs, including a song themed “SOM TOO CHUKWU”. Upon its release, the album became considerably popular especially among Christians of south-east Nigeria. The album is available for download or streaming on various sites for a fee or for free, including YouTube, iTunes, Spotify, Pinterest and Amazon. It is available for purchase on Amazon Music at a fee of $0.89.[6]
On January 28, 2021, one Mr. Jude Nnam, through his lawyers, wrote to Five Star Music, Kcee’s Record Label, claiming that Kcee infringed his copyright in the music themed “SOM TOO CHUKWU” which was a song composed and written by Mr. Jude Nnam in 2001 to celebrate his daughter’s first year birthday. The “SOM TOO CHUKWU” song is available on YouTubeand other channels. Mr. Jude Nnam was described in his lawyer’s letter in the following words: “Worship songwriter and choral music composer, a keyboardist and a choral conductor who has distinguished himself in the African music terrain especially within the Roman Catholic circle. He is currently the National Music Director for National Catholic Lithurgical Music Council in Nigeria; the Music Director of Christian Association of Nigeria (CAN);… and a papal Knight.”. The crux of Mr. Jude Nnam’s claim is that Kcee copied his song without his consent, authorization or license to use the music. Kcee was also said to have performed the work publicly including a performance of the song at a wedding.[7]
As stated above, Kcee’s song (the compilation) is 9 minutes 17 seconds. SOM TOO CHUKWU was the first song to be played and the song (Kcee copied the first stanza and chorus in the original version) was performed for 1 minute 47 seconds. In the original version of the SOM TOO CHUKWU song by Jude Nnam, the entire song lasted for 5 minutes 11 seconds wherein the first stanza and chorus were about 1 minute 30 seconds. So, in effect, Kcee copied and reproduced the entire first stanza and chorus of SOM TOO CHUKWU in his compilation –Cultural Praise Vol. 1. It may thus be said that Kcee had infringed the copyright of Mr. Jude Nnam’s song “SOM TOO CHUKWU”.[8] However, the purpose of this essay is to pitch on a stance whether or not popular musician Kcee had infringed the copyright of the song “SOM TOO CHUKWU”.
Section 51 of the Copyright Act defines an “author” in the case of literary, artistic or musical work as the creator of the work; and an “author” in the case of sound recording as “the person by whom the arrangement for the making of the recording were made…” Section 6 of the Copyright Act gives an author or the owner of a copyright work the exclusive right to control reproduction of his work; including, but not limited to, the right to control the performance of the work, publication and distribution of the work and even broadcast of the work. By the provisions of section 7 of the Copyright Act, the author or owner of the copyright in a sound recording has the exclusive right to control the direct and indirect reproduction, broadcasting or communication to the public, the whole or substantial part of the recording either in its original form or in a form recognizably derived from the original. The owner of the copyright also has the exclusive right to control the distribution of the work to the public for commercial purposes. Also, an owner of a copyright can assign his work or license the use of same to third parties. This will amount to a permitted use by a third party of a copyright work vested in another person. However, from the facts available as at this time, it is uncertain whether Kcee was licensed to use the work, SOM TOO CHUKWU.
Generally, when one performs another’s song for commercial gains or other benefits, he shall be liable for an infringement and not even the defense of fair use may avail him. To commercialize a song, individuals are expected to obtain license to be on the safe side of the law. Such license may be indirect, since there exists a society[9] that does this on behalf of artistes like the Copyright Society of Nigeria. An infringement in the right of a copyright holder leads to a suit[10] where accused persons may attract liabilities that can be whether criminal or civil. It is clear that the musical art – Cultural Praise by Kcee – was used for commercial purposes as the music was released for profit-making. As at the time of writing this essay, millions of copies of the song have been sold on different music sites such as: Spotify, Audiomack, Deezers, and the rest. This very commercial purpose makes Kcee liable to an action against Mr. Jude Nnam as indeed there has been an infringement of his copyright having not consented to the use of his music. Neither was an acknowledgement made as to Mr. Jude Nnam’s copyright during the 9 minutes 7 seconds Cultural Praise song.
3.0 CONCLUSION.
The action of Kcee and the Five Star Music in relation to the SOM TOO CHUKWU music is perceived to be a direct infringement on the copyright of Mr. Jude Nnam. Section 15 of the Copyright Act states that ‘a work is infringed by a person who without the license or authorization of the owner of the copyright – (a) does, or cause any other person to do an act, the doing of which is controlled by copyright; (d) distributes by way of trade, offer for sale, hire or otherwise or for any purpose prejudicial to the owner the copyright, any article in respect of which copyright is infringed…(g) performs or cause to be performed for the purposes of trade or business…any work in which copyright subsists.’ The cultural praise was produced, performed, and distributed by way of trade; same was offered for sale on various platforms. It would have been a mitigating factor for Kcee and Five Star Music, if the production and performance of the song were for church thanksgiving purposes and not for business. It would have also been a mitigating factor if the authorship of Mr. Jude Nnam was acknowledged in the Cultural Praise album.
[1] Section 1(1) of the Copyright Act CAP C28 laws of the federation of Nigeria, 2004.
[2]Section 1(2) (a) and (b) of the Copyright Act, Supra.
[3] Section 10 of the Copyright Act.
[4] Section 6 of the Copyright Act.
[5]See Section 15 and 20 of the Copyright Act.
[6]Available at https://www.amazon.com/cultural-praise-explicit/do/B08PKZY5LL
[7]See the YouTube video performance of December 7th 2020: https://www.youtube.com/watch?v=kmtd8fyers4
[8] However, it is still left for the court to decide in the suit: FHC/L/CS/304/2021.
[9]C-Act 1990, S.39.
[10]C-Act 1990, S.15(1).