Celebrated
singer and 2007 Idols West Africa finalist, Omawumi, released the song
‘Bottom Belle’ a few months ago. From all indications in the marketing,
promotions and packaging of her hit single, this was an original song by
Omawumi featuring Flavour. Indeed I have read numerous news reports on
websites and blogs in preparing to share this case with you all and they
all say essentially the same thing and do not attribute the song to
persons deemed the original owners, The African Rhythm Messengers.This
group comprising of Nigerian musicians released the song in 1998 under
the same title and the song is sold on Itunes among many digital stores.
(NOTE: I do know that there were two prior singers who sang this song
i.e. Herbert Udemba, first, and subsequently Sunny Bobo. However, for
our purposes, African Rhythm Messengers recorded and currently sell the
song. It is unclear the license they may or may not have. Hence the
legal issues I focus on of
cover songs and sampling.
Africa as a whole has not been the best place to protect the
intellectual property rights of artists. Further, the question of when a
copyright song lasts comes into play specific to Nigeria.
” Literary, musical or artistic works other than photographs: 70 years after the end of the year in which the author dies;
- Cinematograph films and photographs: 50 years after the end of the year in which the work was first published.
- Sound recordings: 50 years after the end of the end of the year in which the recording was first made.” – Quote from COSON)
(Back to the case at hand) Here is the essential gist of the release put out by Omawumi about the song:
“Bottom Belle is a special song,” the feisty diva
explains. “It is my witty way of telling the story of an opinionated
young Nigerian woman who wants and fully intends to enjoy her life. This
is a song you’ll rock to at the local hangout, the club or even the
village square!”
Bottom Belle has a feel good vibe, which is driven by a smooth
highlife beat. The song has an unmistakable club feel, merging native
sounds with a cosmopolitan edginess that would prove irresistible to
music lovers. The song tells the story of a young woman being wooed and
how expensive she is to maintain. She tells her ‘toaster’ to prove
himself a ‘chairman’ by taking her shopping and buying her a pair of
bell-bottom trousers and other things that would make her happy.
Kporokoto master Flavour never fails to impress, and he does the
same in this single. Playing the role of the ‘Chairman’, Flavour’s
vocals take the listener straight to the dance floor as he boasts of his
wealth in different currencies and how he plans to spend it on her as
long as she makes him happy and dances to his tunes.”
I saw the circulation of the song when it initially came out but
unfortunately, I was too busy to pay attention to it until now. I
absolutely adore Omawumi and believe she is one of Nigeria’s few really
talented artists. However, adoring an artist and even rocking to him/her
has nothing to do with the legal issues that stem from allegations of
copyright infringement. Besides the alleged copyright infringement by
the artist from Benin reported below by Questionmark Magazine, there is a
bigger and seemingly clearer infringement on the work of African Rhythm
Messengers going on.
This is where I pause so you all can listen to both versions:
African Rhythm Messengers, Bottom Belle
Omawumi – Bottom Belle
Clearly, at least on the hook, a substantial portion of this song was
used. The obvious question is, did Omawumi obtain clearance for the
song?
Folks, there are three key legal issues of high importance you all need to focus on in this case:
1.
Performing Cover Songs: What is required of you if you perform a cover song live?
2.
Recording Cover Songs on Your Album for Sale: what is required of you if you will place a cover song on your album for sale?
3.
Clearances for samples of recorded songs used to create your own work: What do you need to know about sampling other people’s work?
AML Legal Commentary
Anytime we discuss copyright infringement cases, your starting point has to be:
What is copyright law? What rights do I as a copyright owner have? If
I want to use the copyrights of others, what do I need to know? For
answers to the foregoing questions, click
here.
Now we get into the original questions I posed. NOTE: These
are all complicated topics that I have tried to simplify here. I am
working on my book which is a lot more comprehensive and you all can
purchase it when it is released for more indepth discussions. I don’t
have a release date, yet.
1) Can I play cover songs when I perform live?
AML Commentary: USA = Yes. Nigeria = Yes.
Who pays when I
perform live at a venue?
AML Commentary: USA = Venue owner. The venue owner pays
a “licensing fee” which is already negotiated to a performance rights
organization such as ASCAP and BMI. ASCAP and BMI in turn pay the lawful
copyright owner.
Nigeria = Venue owner. The venue owner pays a licensing fee to COSON, Nigeria’s
performance rights organization. COSON in turn pays the copyright owner of the song.
2). Can I record cover songs on my album?
AML Commentary: USA = Yes. But you need to pay mechanical royalties for the song of the artist you are recording.
Who Do You Pay Too? The Harry Fox Agency, a mechanical licensing, collection and distribution agency.
What is a mechanical license? In simple terms: it is
when music is licensed to be used on CDs, records, tapes and digital
configurations i.e downloads, streaming etc.
How much do you pay? In the USA, a statutory fee is mandated through a mechanical royalty fee.
Who typically pays for this license? The Record
label who seeks the song for its recording artist. It is subdivided into
1) mechanical royalty payment for the writer/publisher; and 2)
mechanical royalty payment for the recording artist.
Does Nigeria Have a Fixed Mechanical Royalty Rate and Harry Fox Like Agency?
To my knowledge, there is no fixed mechanical royalty rate. I believe
COSON has been advocating, in recent times, for that. COSON would be
looking to also take on HFA’s role of mechanical licensing, collection
and distribution in Nigeria.
Okay what’s really good with this Omawumi story? As to the Benin
artist, we need more facts. We really don’t know enough despite the
report. We need to hear his rendition and compare with Omawumi’s. Read
the story below.
As to Omawumi’s seeming infringement of African Rhythm Messengers, we need to discuss sampling.
What is sampling?
Sampling is when you take someone else’s song or recorded performance
and incorporate into your incorporate into your newly recorded
song/performance. If you will use their work, then you need to pay them.
Here, there is no denying that Omawumi incorporated African Rhythm
Messenger’s song into her own. Was this cleared i.e. she paid them and
also agreed on how she would attribute credit etc. We don’t know. All we
know right now is there is a third party, independent of the claim that
African Rhythm messengers could have against Omawumi and her label
(assuming it is not cleared), claiming copyright infringement.
Let’s narrow in a bit on clearing samples.
Samples are so common in hip-hop music today. Whether you reside in
Nigeria or the USA, under both laws, you need clearance to use the music
of another person. However, especially in hip-hop, sampling is a
notorious phenomenon. Do artists get sued? Yes they do. Jay-Z, Kanye
West are just examples of many artists sued for alleged sampling who
have settled their cases and kept things moving.
Our Nigerian music industry is still young particularly when it comes
to suing to preserve their legal rights. People tend to think “shake it
off” and God will be the one to administer the revenge. I say there is a
reason why God created the lawyers.
I presume as time goes on, the industry will become even more
educated and Nigeria’s legal industry will also become more
knowledgeable; which needless to say will lead to an increase in
litigation over issues like these. We are already seeing an increase in
litigation. I got virtual stares when I first began AML (AML is not even
one year old, yet) because it was so foreign both on a cultural and
business context. These days, I am receiving your releases and many
heads up on ensuing legal battles. Many of you also email me to let me
know you are setting better music law and business practices so your
careers can flourish. I am happy to hear all of these. This is a good
thing because if you as an artist work really hard, you should have
something to show for it, especially as you age.
Legal Action By Lawyers When Sampling Occurs
1. The Attorney representing the party whose copyright you infringed
will contact you to stop, effective immediately. Never ignore ANY
correspondence from lawyers, the police, courts or judges. Bad mistake.
2. Lawyers ask you to stop through a “cease and desist” letter. It
is no Kumbayah let’s all get along kind of letter. It is a “you’ve got
5days to quit with the mess, any and all mess, relating to infringement
of my client’s work” kind of letter.
3. If you happen to have sold the infringed work, the lawyer should
make a demand that such products currently on shelves, in digital
stores, youtube stores etc. be recalled immediately.
4. Lawyers will also demand that profits and damages be made and for proper accounting.
An all out war takes place if you disagree with the alleged
infringement accusation and decide to fight back. Otherwise, if you
infringed and you cannot refute the evidence, then your lawyer would
work out a settlement with the lawful copyright owner and you all keep
it moving.
QUESTIONMARK MAG. STORY
“Months after singer Omawunmi released her stunning new
single which she titled Bottom Belle where she duet current wave making
Afro centric act Flavour,the story reaching us has it that once upon a
time popular Ajegunle act, called Xperience Oligbese now based in Edo
State capital Benin City, has threatened to drag the song diva Omawunmi
to law court for what he termed copyright breach.
The handsome seven footer,popularly known for his trademark Oligbese
for sale told us that Omawunmi lifted some lines from his song he titled
Do Something which is contained in the album he titled Givam
Chance,released sometime in early 2004 and was produced by Nelson Brown
for Progressive Sound Park a Lagos based Recording company.
The Delta State born Dancehall act said before Omawunmi recorded her
song we have met several times at shows,where I performed my songs in
her presence and the only thing she told me was that she loves my style
of song but she never told me that she was planning to lift some lines
from my song titled “Do Something” until in February this year when the
label owner that released my album called me to ask why I allowed
Omawunmi to lift some lines from my song without permission or credit to
me and I was surprised. . . ”
Full story on Questionmark magazine.
