I am happy to introduce the ‘USA Legal Drama’ category to AML. I actively blog on my law firm blog, UDUAK LAW FIRM. I have, however, held off on blogging given an important project I am handling for the firm, details of which I hope to reveal to all, soon.
However, not wanting to leave my readers over there behind, some of which includes top executives and entertainment lawyers in America’s entertainment industry, I am directing everyone to AML. In directing my law firm blog readers here, I realize that without meaning to, I may have found a way to truly make the West pay serious attention to Africa and Africa’s entertainment industry, the law. Ironically, almost ten years ago when I set out to find a way to make a difference in the country where I was raised, Nigeria, I wanted to use the law, a tool I am most passionate about, to do so. However, the timing was simply not right and in 2007, I tried a different tool, fashion.
In 2012, the timing is perfect. Indeed, it is very hard, even for America’s entertainment industry, to find a place where legal issues are addressed in simple easy to digest English, without underplaying the gravity of what is at stake. 99% of the time, legal colleagues who attempt to take on legal issues do so as if those they speak to are also lawyers. They are not. So, again, it is truly exciting to have the West meet Africa on AML, the Uduak Oduok Nigerian-American way.
Expect to hear me throw terms like AML “American artists” (which encompasses Africans like myself born in the USA). I look forward to discussing some important cases and basic concepts as I seamlessly interweave my African heritage into the mix.
Having said all of the above, let’s talk about the current case filed against Drake by his ex-girlfriend.
Folks I met Drake last year at a restaurant in Los Angeles where we both were waiting to be seated. I got a chance to briefly speak with him. He was very polite. I appreciated his politeness.
What are the allegations?
As reported by THR, Esq. the facts are as follows:
“Last year, hip-hop superstar Drake released a song, “Marvin’s Room,” that quickly went viral and prompted various remixes by fellow artists intrigued by the depiction of a young woman on a phone call as the rapper drunkenly croons, “You could do better.”
Now, Ericka Lee, revealing herself to be Drake’s ex-girlfriend, has stepped up, saying she was the voice on the other end of the phone call. The woman is now suing Drake for excluding her from sharing co-writer royalties on one of his biggest recent hits.
Lee filed the lawsuit on Thursday in California federal court claiming the two had a romantic and business partnership between early 2010 and mid-2011. During the relationship, the two are said to have traded poems and song lyrics and discussed joint creative projects.
Last year, Drake allegedly agreed to work with Lee on “Marvin’s Room” and split the proceeds. Lee says she was asked to record the song’s “hook” as well as the opening monologue that would serve as the thematic framework for a song about Drake’s yearning for an ex-girlfriend and how his fame interfered with his love life. “Plaintiff’s contribution is highly significant to the overall work,” says the complaint.
Drake supposedly acknowledged Lee’s contributions in text messages sent to her. One read, “U basically made that song.” Another read, “It’s s–t without you.”
Drake purportedly gave Lee credit as a “vocalist” on the song as “Syren Lyric Muse.” Additionally, the parties are said to have registered the sound recording at the U.S. Copyright Office. On July 11, Lee made a claim there, saying, “My works and voice are used on this work.” About six weeks later, Drake’s label, Cash Money Records made its own claim, saying that the song author was an “employer for hire.”
Lee reports that after the song was released, their relationship ended and got ugly fast. The two discussed meeting in Los Angeles, but it never happened. According to the complaint, Drake later sent a text message to Lee that offered her 2 percent of “publishing royalties.”
By November, Lee hired a lawyer, which allegedly caused Drake to make threatening phone calls. “What the f— is your problem?” he said to her, according to the complaint, then offering her “4-5%” of publishing monies plus a $50,000 payout to go away. . . “- THR, Esq, story reported on February 4th, 2012.
AML LEGAL COMMENTARY
Drake “whatchu” mean “What the f— is your problem?” That is the most ridiculous question you can ever ask an ex-girlfriend who you do business with. Like what’s really good Drake?
In criminal law, criminal defense lawyers like myself (yes I also handle criminal felonies and misdemeanors) understand motive is a big part of any criminal case where defendants are charged with alleged crimes. We know the prosecutor is usually looking to throw that in the mix while we defense counsels look to argue lack of motive. In civil litigation, I don’t believe the motive/intent analysis should be put to rest. It is always important to understand why people do what they do. It really helps crystallize things and gives a clearer picture of how you want to respond to situations both from a legal standpoint and everyday life.
Certainly, the intent/motive here is quite clear.
First, Drake y’all broke up after the song was recorded, per the report from THR, Esq. Further, it was a nasty breakup/fight.
Second, Lee really did contribute her creativity and intellectual property to the mix. You don’t deny that she contributed to the song. So, it’s like adding insult upon injury. You break up, she did the song and because she cared that deeply about you, she didn’t even ask for up front compensation. She only asked for royalties. For her, it’s like, the nerve of Drake not to pay upfront compensation, break up the relationship, have a nasty fight with her and now expects to make millions in royalties while she sits on the sidelines? Oh! Heck no. It ain’t that kind of party. Let’s not make it that kind of party. At this point, “what’s love got to do with it? “
The above are the emotions that I believe are operating here. She is not going to get screwed over (no pun intended), twice. So, don’t go around asking what the “f—“ is (her) problem.” Wrong question to ask buddy.
Third and finally, Drake and Cash Money are no newcomers to the music industry. Where does Drake get off thinking anyone, especially non-blood relatives, would let him walk without paying royalties? If Beyonce has issues over money with her father, please believe that you will have issues over money with a girlfriend or boyfriend, AML artists.
Barring a written contract clearly stating that she agreed to waive royalty payments, he better find out what she would be happy with, pay up and keep it moving. The current proposed settlement offers is clearly not going to cut it. She has rejected all offers so far as she should, according to the news reports.
For settlement to happen and happen quickly and so both parties can resolve their issues and move on with their lives, the trick is an apology for any and all hurt he may have caused her, intentionally or unintentionally. Yes folks. Drake needs to go to Ms. Lee and just say, “I am so very sorry that I hurt you,” and mean it. It is only then this fight can dissolve rather quickly.
Ego, however, usually gets in the way and that is where litigators like myself come in. You want to fight for legitimate legal issues, a fight you shall have so long as you have the money to pay. Accordingly, let’s keep it moving and look at the law and my further take on this case.
AML American artists, if you are just joining me, last year, I discussed the dispute about joint authors with the legal drama raised between Nigerian musicians P-Square and Waje. P-Square (popular R &B singers) were and remain a recognized name across the African continent. Waje, a young R & B singer, was a “nobody,” at the time the song ‘Do Me’ was recorded, I believe in 2008, although I might be off on the date. However, ‘Do Me’ became a continent wide hit and a hit among African communities globally. Post ‘Do Me’ becoming a hit, artist Waje claimed joint ownership in the song and also made it known to the media that she was denied credits as co-author of the song and was also not compensated. Please reference AML Case law on the Waje v. Psquare legal drama here.
Similarly, here in the Lee v. Drake case, although occurring on US Soil, we find parallels with that case which happened over 6,000 miles in Nigeria. Artists, under US law, what should you know when you create a joint work with your colleagues?
How is a Joint Authorship Created Under US Federal Copyright Law?
Title 17 of the US Copyright Act spells out what constitutes joint authorship.
A joint work “is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” See 17 USC § 101. The authors of a joint work are co-owners of copyright in the work. See 17 USC § 201(a).
The key here is INTENT. The two at the time the work was created intended for it to be one body of work.
What Right Does Drake & Lee have to the song?
Both have an undivided, equal interests in the whole song. It doesn’t matter that Lee did only the hook. She owns it equally with Drake, unless there was an agreement to the contrary. There are many nuances that come here but revisit my P-Square v. Waje case to see these nuances discussed in depth as the issues are parallel to those raised on US soil among artists fighting over ownership interests in a song.
Can Drake Make Changes to the song without Lee’s Permission?
No he cannot. He needs her permission. Isn’t it funny? The relationship is over yet their business relationship ties them together, long term.
If Drake ignores Lee and still goes ahead and makes changes to the song, without Lee’s consent, for example, he replaces Lee as a new collaborator, Lee will still own the new version. She will own half of the rights in the new version.
Does Drake need Lee’s consent to license the song?
No. So long as it is a non-exclusive license and he pays her for such licensing.
Is Drake required to give credit for use of the song they created?
Under case law i.e. Judge decided law, yes.
Is Drake required to give an accounting to Lee?
Yes. An accounting statement showing the source of monies earned and the monies earned on the song is required.
How Long Does the Copyrights for Co-Authors last?
It last for the Life of the author plus 70 years. The 70yrs begins to run after death of the last surviving coauthor.
NOTE: We keep it basic here because that is what your entertainment law attorneys are for and you should set aside the budget to hire lawyers to protect your music careers or businesses if you intend to be a part of or remain relevant in the industry. However, let me touch on a few concepts that seem to come up in this case and that I expect we will see in other future cases.
WORK MADE FOR HIRE: If you are an employee and you create work during the scope of your employment for your employer, the work is called a “work made for hire” and the work is owned by your employer.
Is Lee’s work a work made for hire? There is a whole body of discussion on this issue as it relates to music and the music industry. It appears with the registration by Cash Money Records, they are trying to say that? I am unclear on those facts so will wait to hear more facts as they emerge to get into this.
COMMISSIONED WORK: Under the Copyright Act, if the work is: “specially ordered or commissioned” for use as a) contribution to a collective work; E.g. photographer pictures in magazine or freelance article in newspaper.
b) part of an audio visual work; e.g. motion picture, screen play, compilation . . .
c) AND the parties sign a written work made for hire agreement, the copyright will be owned by the commissioning party.
This creates a significant impact in copyright ownership as the commissioned work belongs to the person/company commissioning the, work permanently.
AML CHEAT SHEET/MORAL OF THE STORY
1. Deal with all issues upfront and straight up before they occur. If you will collaborate with your colleagues, AML American, Nigerian and Ghanaian artists and all reading this in such situations, spell out in writing who owns what and the splits in terms of compensation.
2. Don’t be stingy. Treat people right even if you sleep with them. Husbands, wives, sisters, brothers etc. don’t leave their qualifications or skills at the door just because they enter into business with you. If your girlfriend is a qualified musician, pay her royalties because that is for her future and that of her family, even if you guys break up. Also, as to family members, you can’t help put food on the table of outsiders and expect family members to stay poor or below poverty level because you “love” them. The same holds for friends. There are many things you do and should expect free for friends and family but it is highly unreasonable to expect not to pay anything, as a fellow artist, to a song writer, even if it is your mother, when you co-write a song that has millions of hits just on Youtube alone and will generate millions in royalties. That is being stingy both from a personal and business perspective, either way you slice it.
THR, Esq. has the full story.
Video at Issue Below