Recent trends of “controversial contracts” between rising music stars and record labels in the entertainment industry made it crucial for artistes to be vigilant when signing contracts with Record Labels. The vulnerable artiste must be wary of contract terms that may perpetually enslave him. Artists must understand the need to seek legal advice in the execution of entertainment contracts to understand obligations and possible heinous clauses buried within the contract terms.ARTISTE AND RECORD LABEL

Entertainment contracts, if not properly drafted and executed, can threaten the potential and growth of the artiste and the industry at large. However, the irony is that this key area is oftentimes trivialised or ignored in entertainment contracts. The name of an artiste is an asset and a brand to him. The popular and bigger the name, the more successful the artiste becomes in the music industry. This is why it is easy to attribute popular names like Davido, Wizkid, and Burna Boy with success as far as the Nigerian music industry is concerned. This article seeks to explore the legal implications of a “name” as a trademark in the music industry.

Assuming Ademola Adeola, a musical artiste whose stage name is AD, signs a record deal with Naija Records, a recording company, between Ademola Adeola and Naija Records, who owns the copyright to the stage name AD? This hypothetical scenario is often a thorn in the flesh between record labels in Nigeria and artistes. This question on who owns the copyright between an artiste and record label will be answered considering the relevant laws governing Intellectual Property in Nigeria.

 Under the tort of passing off, it is unlawful to falsely represent one’s product or business as that of another person, thereby deceiving buyers to patronise it[1]. In the tort of passing off, a person carries on his business or sells his goods under a name, trade mark, description or imitation of another person’s product to deceive the public to patronise one’s business, product or services[2]. The question at this stage is whether the doctrine of passing off encompasses name rights in music since the definition of passing off, as stated above, did not expressly include the word “music”.

The author believes that, since the music industry can be classified as a trade or business that offers entertainment services to society, music names may equally be accorded the same protection under the law of passing off. Furthermore, an artiste’s name is deemed to be his business brand, which falls under the umbrella of passing off.  It is important at this stage to borrow the words of a learned author who described “passing off as a lazy man’s option in enforcing trademarks and ancillary rights[3]”. This is because it is only when a trademark has not been registered that the issue of passing off arises as a common law remedy.

If such a music name is registered as a trademark under the TradeMark Act, the issue becomes that of an infringement of a registered trademark simpliciter, and the cause of action will have a statutory favour under the Trade Marks Act. It follows that, when a Music name that an artiste seeks protection is not registered as a brand under the Trade Marks Act, the affected party can only seek legal refuge under the doctrine of passing off and not the Act. Although an artiste can bring an action for passing off in the case of an unregistered trademark, registration confers an exclusive right to use of the trademark or brand.

Registration also confers a stronger and a clearer right of action against infringement, in addition to the availability of more remedies than those available in an action for passing off. In view of this, artiste are advised to register their “music name” or “brand” under the trademark Act to accord them statutory protection. Conclusively, a music artiste has exclusive right over his music name over all persons, including his record label, except he assigns or transfers his copyright under a contract in line with the Copyright Act or the Trademark Act.

 There is no express mention of “music” under the Trademark Act. The Act defines a mark as including a device, brand, heading, label, ticket, name, signature, word, letter, numerical, or any combination thereof[4]. However, by including “name” as a trademark, the author submits that, “music name” is implied. An artiste who is the proprietor of a trademark has the exclusive right to use, exploit, and protect the trademark from any infringement, including his music name[5].  However, a trademark is assignable and transmissible[6].

Accordingly, an assignee or transferee of a trademark, upon registration, enjoys the same rights and privileges as though he were the proprietor of the trademark. Accordingly, between an artiste and record label, the artiste, as the proprietor of a trademark, enjoys the exclusive right to his stage name until he assigns or transfers his trademark under the Act or by a contract. Upon the transfer or assignment to a record label, the artiste’s exclusive right to the trademark ceases and the record label’s right to the trademark is activated.

The Copyright Act expressly includes “musical works” as one of the species of intellectual property eligible for protection[7]. The Act describes a musical work as any musical composition irrespective of musical quality and includes works composed for musical accompaniment[8]  for a musical work to enjoy copyright protection, such a musical work must pass the fixation test. That is, the musical work must be fixed in any definite medium of expression[9]. For copyright to subsist, it suffices that the music is stored in a tape or some recording without being written.

In the case of Fela v Iseli, the survivors of the music icon, Olufela Anikulapo Ransome-Kuti[10] (Fela), sued the defendants for damages and a perpetual injunction to restrain the defendants from reproducing the composed musical works of the late Fela, but which had neither been produced nor sold for public consumption. The court held that written lyrics and tapes yet to be published still qualify as fixation. Though the Act does not specifically delineate musical names from the music itself with respect to copyright protection, it appears that the word “music” covers the lyrics, the song, and the name of the music under the doctrine of “Attribution and Paternity[11].  At the heart of copyright is the issue of “ownership”.

Thus, the critical question for the purpose of this article is, who owns the copyright to a copyrighted musical work? The artiste who is the proprietor of the musical work owns the exclusive right to his work and stage name until he transfers the same to a third party. It must also be noted that copyright does not inure perpetually. Copyright protection has a restricted lifespan depending on the nature of the copyright. It operates for a specific period after which the work is to enter the public domain. Anyone can use, copy, publish and deal with it at such time without violating the law.

Conclusion

It can be seen from the above analysis that the question of who, between an artiste and record label is entitled to the name right in music is a question of fact. If the music name is registered under the Trademark Act, and the Copyright Act, the artiste, against the record label, enjoys the exclusive right to the copyrighted work except he transfers or assigns his right to the latter. On the same breath, this right does not prejudice any term of the contract between an artiste and record label.

---

[1] See Niger Chemist Ltd v Nigeria Chemists (1961) All NLR 171 and many other cases.

[2] Ibid.

[4] S. 67 Trademark Act

[5] S. 3 ibid

[6] S. 26 (1) ibid

[7] s. 1 (1) (b) of the Copyright Act.

[8] S. 51 (1) Ibid

[9] S. 1 (2) (b) ibid.

[10] 2003-2007 5 IPLR 53. 120. See also Article 5(2) of the Berne Convention.

[11] This refers to the right to be identified as the author or creator of a work and vice versa. See Ellis v Hurst 3 66 Misc. 235, 121 N.Y. Supp. 438 (Sup. Ct. 1910).

Ojienoh Segun Justice Esq.,

Lead Partner, EKO SOLICITORS & ADVOCATES