Yesterday, Nigerian artist 9ice took to twitter to warn popular Nigerian music blog Notjustok.com to stop publishing his song without his consent. He also extended the warning to other bloggers.
I find the notjustok.com warning rather interesting considering both Notjustok.com and 9ice have had such long relationship and seemingly mutually beneficial, at least in the onset of this digital music revolution in the Nigerian music space. Notjustok.com often cites its coverage of 9ice’s music as one of the catalyst for increasing traffic to the site and moving it to the level it is today. Then again, on the flip side, Notjustok’s exclusive coverage of an allegedly leaked privately taped bitter dispute between Ruggedman and 9ice over Rugged allegedly sleeping with 9ice’s ex-wife, probably tainted that relationship because it was quite instrumental in making that story go viral; and letting people see 9ice for what he really was. Maybe 9ice has not been happy about that fact?
Anyway, there is not much to say than the fact that 9ice has the right to prevent others from publishing his music, within the Nigerian and USA copyright law context, without his consent, whether they be music publishers, bloggers or what have you.
However, on the USA end, since Notjustok.com is a US based company, there is the doctrine of “fair use” under the US copyright law that depending on the facts, could create a defense for a blogger publishing the work of an artist without permission. I covered this in the Osagie Alonge v. Moe Musa Skelewu shenanigan.
Is a US site like Notjustok afforded protection under the fair use doctrine for the way it uses 9ice’s work i.e. publishing the full mp3 without his alleged consent, I don’t believe so. But then again, it depends.
If Notjustok.com was using 9ice’s work for purposes such “as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research,” then there would be no infringement of his copyright.
Also, an important point to note is that under US copyright law, creative and unpublished works get more protection against the fair use defense. So, I doubt Notjustok.com and other bloggers that upload the entire song without fitting the above criteria will be exonerated by claiming fair use.
Again be sure to revisit my discussion on the Osagie Alonge v Moe Musa Skelewu case for more indepth discussion on the Fair Use doctrine.
In another case dealing with the fair use doctrine and social media, a US court just ruled that a media company (Getty Images) is liable for using the image of a photographer it found on twitter without the photographer’s consent. It is an interesting case worth reading, especially for bloggers.
Overall, the solution is simple. If you would like to publish 9ice’s work, get his permission. If you think it is not worth it, keep it moving and do not use his work.
I will say this, as a blogger myself and publisher, I get bombarded with thousands of mp3s all looking for space on my platforms. Many times, the artists send me their works directly. There are, however, a few more established artists that employ the help of publicists to send their music to me.
Typically, there is no reason to believe a publicist does not have the permission of the artist to send the work of the artist because that publicist needs to get paid for his or her services. However, I am sure there are unscrupulous situations where persons purporting to promote the work of an artist do so without the artist’s permission. If you are a blogger and have done your due diligence and it turns out the publicist is fake, then simply remove the alleged copyrighted work till you sort out what the issue is or obtain the appropriate permission from the artist. When in doubt, always consult with an experienced attorney.
Especially for Notjustok.com, I wonder if a scenario where they thought they had consent and were sent materials for publishing turned out to be a wash, given their knack in obtaining exclusivity from many of our artists.
Anyway, let’s see what happens. In the meantime, your thoughts?
Twitter image via Lindaikeji Blog
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