We’ve got ridiculous set of facts here that sets very bad precedent for Nigeria’s music industry. Every Nigerian musician and industry professional reading this should be just as concerned as I am for the method Mo’Hits used to resolve an alleged infringement of one of their songs. It is a scary world we live in when persons like Mo’Hits D’banj and Don Jazzy can bully those they dislike and get away with it.
BEFORE I START, Kelly Hansome, chill on the “nonsense and rubbish,” on the real. “Igwe” the parody is one thing. Personal attacks on your colleagues is a whole different ball game. The frequency is too much and that ish lost its “funny” value a long time ago. Plus, you are in Naija. Folks will run “area” on you as you can see here.
Alright common let’s get it people!
AT ISSUE AND THE CENTER OF OUR LEGAL DRAMA IS – I’M FEELING GOOD BY 2FACE FT. D’BANJ
NOTICE D’BANJ’S PART
Oni owun ni (He says) “I am the Government of the people by the people for the people. . . Dis one na democracy. I rep the people. . . I am Skibanj, Omo’nla, eja n’la (BIG BOYZ, BIG FISH)” Homie is not playing. He means it and this case is an exhibit of what happens when Governor D’Banj takes the law into his hands. He already reps the people of which he voted himself Governor of.
Kelly Hansome did a remix of the song above. He did not seek Governor D’Banj’s consent. Governor D’Banj got wind of it and was quite angry. So, under his so called “democracy,” Eja n’la, Omo n’la deployed the Nigerian police to bully Hansome into the signing of an “Undertaking” among other abuse of power tactics Governor D’Banj used.
NOTE A FEW THINGS ABOUT THE SONG ABOVE.
It had been released for over two months prior to Hansome’s remix on 2Face’s official page powered by Iroko Partners on You Tube. There are 103,000 results of the original version when you google it. Mo’Hits never had an issue or alleged “leak” of the song already published by 2Face and 103,000 websites until Kelly Hansome did a remix on the song.
Plaintiffs Mo’Hits, D’Banj, Don Jazzy v. Defendant Kelly Hansome;
Crosslawsuit/countersuit: Cross-Plaintiff Kelly Hansome v. Cross-Defendant Mo’Hits, D’Banj and Don Jazzy
WHAT LAW GOVERNS
Technically given the allegations, we should only be dealing with Nigerian Copyright Act Cap. C.28, Laws of the Federation of Nigeria 2004. This law was initially passed in 1988, amended in 1992 and 1999 and later re-codified in 2004. But noooooooooooo, Mo’Hits had to live up to the “HITS” in their name. They brought in Nigerian Criminal Law, Nigerian Criminal Procedure and Tort Law.
WHAT ARE THE KEY FACTS THAT BUG THE CRAP OUTTA ME?
As you all know, I was away on a mini-vacation and returned last week to play catch up. One of the things I returned to was an email from Mo’Hits PR representative sent to quite a handful of media outlets including mine. The email read as follows:
DO TAKE NOTICE that Mo’Hits Records Limited is the lawful owner of rights to the recorded material being touted by one Kelechi Obinna Orji a.k.a. Kelly Hansome or persons acting for him. Mo’Hits Records Limited has not granted the said rights to Mr. Hansome nor to anyone else. Mr. Hansome’s possession and offering of the material at issue is unauthorized, unjustified, inexcusable and downright illegal; the subject of current civil and criminal proceedings. DO NOT PUBLISH, OFFER, PLAY, COPY, POST OR HOWSOEVER TREAT WITH THE SAID MATERIAL IF OR WHEN IT IS OFFERED TO YOU, AND NOTIFY THE SENDER.
A&R Mohits Records”
Errrrrr . . . . .
“lawful owner of rights to the recorded material”?? What recorded material? I looked at the email and had a frown of confusion and annoyance on my face. Talk about the poorest release/notice I have ever seen. For starters, if Mo’Hits will send an official notice of an alleged copyright infringement by a colleague to the media, it should clearly identify the alleged infringed material. Further, as alleged publishers/producers of an alleged infringed material, Nigeria’s Federal Copyright Act mandates the following in pertinent part:
“Publishers . . . producers . . . of works in which copyright subsists shall keep a register of all works produced by them showing the following, that is- (a) the name of the author; (b) the title; (c) year of production; and (d) the quantity of work produced.”
A failure to do this results in a mandatory fine, per the act. So, if Mo’Hits will use the act as authority to claim alleged infringement, then they gotta fall in line and comply with it, no be so? At a minimum, if Mo’Hits claimed it had “recorded material,” we needed to know what the “recorded material” was and what makes it believe the “recorded material” belonged to Mo’Hits. A general statement like the one sent above amounts to defamation of Kelly Hansome’s character because it is so broad as to imply an infringement of Mo’Hits “recorded material” not at issue to the media and public.
Second, did you all catch the line about the alleged copyright infringement being the “subject of current civil and criminal proceedings?”It turns out, by their subsequent statements, there was never an actual filing of a civil law suit by Mo’Hits or criminal law suit by the Federal Ministry of Justice (Federal prosecutor’s office) in behalf of the people of the Federal Republic of Nigeria. So, where did they pull this one from? If Kelly Hansome’s alleged infringement was indeed the subject of current civil and criminal proceedings, why is Mo’Hits, the affected party sending defamatory releases? Also, why not wait for the court to exercise jurisdiction (power) to determine if indeed an infringement occurred?
If it was by force by force for Mo’Hits to share an alleged Kelly Hansome infringement with the media, they needed to show a bit more deference and as much objectivity as they could muster. For example, 1) We are Mo’Hits, 2) We published XYZ song on ABC date, 3) We never gave our consent i.e. for it to be remixed by anyone, 4) Kelly Hansome, an artist, without our consent, remixed our song, 4) We have sued in civil court for damages, an injunction and an accounting of profit. We have also alerted the prosecutor’s office to this infringement as we believe it was intentional and was done despite our warnings. 5) We ask that all media currently publishing this infringed song kindly take it down, although we realize you are not necessarily obligated to.
How hard was it for them to do the above?
This gets more ridiculous people. While I am irritated with the email, I go from irritation to complete vexation when I see the following set of news reports on Notjustok.com (NJO), Nigeria’s #1 leading music website:
On October 25th, 2011, NJO published the following,
“We’ve just received this from Mohits Records concerning the Kelly Hansome leak which was posted sometime last week (but was promptly deleted).
“Yesterday Monday 24th October 2011, at the Garki Police Command Headquarters of the Nigeria Police Force, one Kelechi Obinna Orji, also known as “kelly hansome” was brought in to the said Station and taken into custody and remanded on bail in the sum of eight hundred thousand Naira (N800,000.00) concerning, among other things, his admitted willful infringement of the intellectual property rights (copyright) of Mo’Hits Records Limited.
He signed an Undertaking and Apology in favour of the said Mo’Hits Records at about 4p.m., witnessed by several police officers (including Chief Superintendent Victor Erivwode, the Divisional Police Officer). A scan of the said Undertaking is attached to this email. He undertook to refrain from further use of Mo’Hits Records Limited’s material, released or unreleased, and offered profuse apologies to Mo’Hits Records Limited. He also appeared to be convincingly remorseful to everyone at the Station, including the extremely distraught father of his equally embarrassed friend mr Rex in Abuja.
The Police Station was attended by the said kelly hansome and his advisers and counsel for his part, and by representatives and counsel for Mo’Hits Records Limited.”
Mo’Hits/D’Banj and Don Jazzy took the time, through their reps, to deliberately: 1) Scan, 2) upload, 3) attach the scanned “Undertaking” document to an email and 4) click the send button to send it to NJO. I am speechless. It gets worse. In the press release, Mo’Hits states, unequivocally, Kelly Hansome was taken into custody and bail set for 800,000 Naira i.e. he was arrested. They further volunteer information that Kelly Hansome signed an “Undertaking” in front of police officers, armed with guns we presume as most police officers are, and they even called the oga patapata i.e Chief Superintendent to be present. If this is not gangster like actions laced with coercion and intimidation, I don’t know what is. This is all done because Kelly Hansome remixed an already published song?
Oh! I forgot Mo’Hits claimed subsequently, that the song was a “leak” and should not have been published.
*Side eye* Google the song ‘I’m Feeling Good’ as I mentioned in my introduction and you will see over 103,000 results. That song has been published on prominent blogs and websites, for over two months. Further, even after the co-author of the song, 2Face, already released it, at no point prior to the remix done by Kelly Hansome, did Mo’Hits/D’Banj or Don Jazzy even put as much of a release or statement to say, “the song that has been circulating online is a leak, please don’t use it.”
FYI ON LEAKS: Managers, labels, A &R and artists are ring leaders in sending so called leaks to the media. Everyone understands it is for promotional purposes. Some of these persons even have the nerve when they send these “leaks” to call it “official leaks.” Bottom line, if it was a leak, Mo’Hits NEVER said, did or acted in anyway to refute the leaks until Kelly did a remix of the song.
WHAT IS THE IMPACT ON NIGERIA’S MUSIC INDUSTRY?
HOW ABOUT WE JUST ARREST M.I, P-SQUARE, ELDEE, BANKY W ETC. FOR COPYRIGHT INFRINGEMENT OF SONGS?
It doesn’t matter if you don’t like people or can’t stand their guts. As an industry professional in Mo’Hits situation and leaders for that matter in the industry, your vision for the industry cannot be so myopic and so self-centered that you act in a manner that throws an entire industry into the stone age. To whom much is given, much is expected. Nigerians, despite being in a very tough economic times, have opened their wallets and made you all rich. Give back by leaving an industry that is stronger and better, one where young people can come up and be just as successful.
The impact here is horrible and if you are not in the Mo’Hits click or if they don’t like you, watch your back. Keeping it as real as real gets, the likes of M.I, eLDee, Banky W are just some of the artists that all should be gathered and thrown into jail for unauthorized remixes of the works of other artists.
As a matter of fact, majority of Nigeria’s musicians, like their mates across the globe; have done remixes of other people’s songs to gain publicity. What should happen? Artists whose songs they have used should just go Mo’HITS style and hit them up with arrests? Such barbaric action by Mo’Hits is bad precedent in our industry; and shame on the Mo’Hits crew for taking the industry backwards with their conduct.
I’m not done . . .
Subsequently, NJO publishes a statement from Kelly Hansome, “as is,” which means exactly the way the artists send the releases is how they publish it. In that release/statement, Kelly Hansome denies he was ever arrested. If true, Mo’Hits has just succeeded in defaming Kelly Hansome. Mo’Hits wants to sue Kelly Hansome for alleged copyright infringement? How about Kelly Hansome’s lawyers (hope they are smart and aggressive) turn around and slap them with Defamation, Libel and other applicable tort claims for injury to reputation?
There is more folks. . .
Nigerian Entertainment Today (NET), after all the drama, publishes a statement from Don Jazzy regarding Kelly Hansome’s arrest. Don Jazzy says a lot of sweet stuff but his opening statement just undermines everything he said. His opening statement is below:
“Thanks for taking the time to confirm from me instead of jumping into conclusions like some other people. I really appreciate.
Kelly Hansome was not Arrested cos if we really intend to do that he’ll not be out. All what we did was involve the law so as not to take matters into our hands like most people might result to in this kind of situation. We just wanted a proper documentation to make him hands off Mohits intellectual property. . .” – NET
“WOW! DON JAZZY went “Mafioso” on us. He is so powerful he can have the Nigerian Police Force keep Kelly Hansome in custody to the point where “he’ll not be out?” That is totally gangster. FORGET THE FACT THAT DON JAZZY JUST THREW THE MEDIA, NJO, UNDER THE BUS BY SAYING KELLY HANSOME WAS NOT ARRESTED. IF KELLY HANSOME WAS NOT ARRESTED, WHO FROM DON JAZZY’S MO’HITS TEAM SENT THAT DEFAMATORY RELEASE TO NJO??! THAT PERSON OUGHT TO BE FIRED!! YOU/YOUR TEAM DISSEMINATES FALSE AND DAMAGING INFORMATION ABOUT A FELLOW ARTIST? GOOGLE ‘KELLY HANSOME’ + ‘D’BANJ’ AND YOU WILL SEE THOUSANDS OF WEBSITES CARRYING MO’HITS STATEMENT PUBLISHED ‘AS IS’ ON NJO THAT KELLY HANSOME WAS ARRESTED. THE STORIES ARE ARCHIVED, INDEFINITELY.YOU DO THIS TO YOUR FELLOW COLLEAGUE ONLY TO COME OUT AND SAY HE WAS NOT ARRESTED IN THE FIRST PLACE? ARE YOU KIDDING ME?! WHERE IS MO’HIT’S & DON JAZZY’S CREDIBILITY?”
How this whole thing went down vexes me to no end. Let’s get into the law.
THE LEGAL ISSUES
There is so much going on here I don’t know where to start. How about we begin with the press release/statement to media/bloggers?
Should Nigerian bloggers/media based in Nigeria remove infringing material when notified to do so?
Are there any exceptions to the rules?
Yes. As media, there are many instances where you may use copyrighted material, even when infringed, without permission. They include:
“fair Dealing: “ fair dealing for purposes of research, private use, criticism or review or the reporting of current events, subject to the condition that, if the use is public, it shall be accompanied by an acknowledgement of the title of the work and its authorship except where the work is incidentally included in a broadcast;
Parody: ‘Think Kelly Hansome’s ‘Igwe’. The more explicit language of the statute includes “ . . .the doing of any of the aforesaid acts by way of parody, pastiche, or caricature;
Education Use: “. . . the inclusion in a collection of literary or musical work which includes not more than two excerpts from the work, if the collection bears a statement that it is designed for educational use and includes an acknowledgement of the title and authorship of the work . . .”
There are more exceptions. Be sure to check out the statute.
Should USA Bloggers/Media, Nigerian or Non-Nigerian, when notified, remove Infringing Material on a Website?
Yes. Exception: Under US Federal Copyright Law, importation and use of infringing material constitutes infringement EXCEPT if used for “scholarly, educational or religious purposes and not for private gain . . .”
Did Kelly Hansome Infringe on Mo’Hits ‘Feel Good’ Song?
Based on the alleged facts and without knowing more, yes. Whether the music industry, worldwide, has an industry standard of doing remixes of songs of others, the fact of the matter is, it is still copyright infringement if no one gave you permission to use the work. NOTE: At issue here is not the underlying alleged copyright infringement. It is the method used to solve the problem.
Is there an Instance Where Kelly Hansome’s Use of ‘I’m Feeling Good’ Would Not Be Infringement?
Yes. If he used the song as a parody, among other exceptions stated above.
What is an example of a Parody?
Kelly Hansome’s Igwe or ‘Oliver Twist’ by Area. Parodies mock, tease or criticize a body of work.
Can I Still Get Sued if I Create a Parody?
Yes. In addition, in Nigeria, you can also piss off someone like D’banj the way Kelly Hansome did and when the time is right, the Igwe/Governor and his attendants can and will nail you. If you are just as wealthy as they are, then it is war aka take no prisoners. If you are in the USA and an artist like D’Banj signed to a US Label like GOOD Music pulls the mess he did on Kelly Hansome on you, you can seek legal recourse as well as legal actions both against D’Banj and his USA label/boss Kanye West & GOOD Music.
Also, there is an opportunity given the digital webspace if a USA artist is injured by a Nigerian artist like D’banj while D’banj is based in Nigeria, to still get D’Banj and his USA label GOOD music under tort claims given the power of the internet. Since they sent their email to USA based websites, the facts may or may not lend to a court’s jurisdiction here in the USA over defamation claims. Careful research, analysis and lawyering comes into play here and you would need to consult with an attorney for that.
Within Nigeria, you also need to consult with an entertainment intellectual property lawyer. This is all new territory for the Nigerian judiciary which means they would necessarily lean heavily on UK courts and how UK courts have interpreted disputes like these. Extrapolating the legal reasoning from these UK courts and applying the same legal reasoning to a Nigerian music case like this, if your work is indeed parody, they would most likely conclude your work is not an infringement and the copyright Act does not control. This is usually a factual case by case analysis looking at several factors.
What Works Qualify for Protection Under Nigerian Copyright Law?
- literary works;
- musical works;
- artistic works;
- cinematograph works;
- sound recording; and
Do I have to Register My Music to Gain Copyright Protection in Nigeria?
No. But as a publisher/and/or producer, you have to keep a record of your work. See above. To gain copyright protection, you must show, “sufficient effort has been expended on making the work to give it an original character” OR “the work has been fixed in any definite medium of expression now known or later to be developed, from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device.”
In English, this means, if you create music in MP3s, or CD formats, for example, your work is “fixed in a definite medium of expression. . .” You created it, you got copyright protection. Ideas are not protected.
What Can I Do With My Copyrighted Musical Works?
- reproduce the work in any material form;
- publish the work;
- perform the work in public;
- produce, reproduce, perform or publish any translation of the work;
- make any cinematograph film or a record in respect of the work;
- distribute to the public, for commercial purposes, copies of the work, by way of rental, lease, hire, loan or similar arrangement;
- broadcast or communicate the work to the public by a loud speaker or any other similar device;
- make an adaptation of the work . . . among other things.
In short you want to sell or license your work (give limited permission) depending on the music deal for those seeking to use your work. Licensing deals can be pretty complex and you have to have a smart lawyer who knows what s/he is doing. You can license your music to be used in films, restaurants, TV shows, on airplanes, elevators etc.
Can two people create a joint copyrighted work?
Do we have joint authors in the song ‘I’m Feeling Good’?
Yes we do. TuFace and D’banj are joint authors meaning both own it.
What Can These Two Joint Authors Do With Their Music?
The same thing a single owner can do stated above i.e. perform, reproduce etc.
But Who Owns ‘I’m Feeling Good’ in this case?
Both 2Face and D’Banj. They share joint authorship of the song.
Yes. Mo’Hits/D’Banj will own the song outright if 2Face assigned all of his copyrights to Mo’Hits/D’Banj.
How Does the law define co-owners?
Co-owners are persons who “share a joint interest in the whole or any part of a copyright;” OR “[h]ave interests in the various copyrights in a composite production . . . (i.e) a production consisting of two or more works.”
What Does Joint Authorship Mean?
Under the law, it is defined as “work produced by the collaboration of two or more authors in which the contribution of each author is inseparable from the contribution of the other author or authors.”
How Long Does a Copyright Last?
The Copyright First Schedule has it as follows:
Type of work
Date of expiration
|1.||Literary, musical or artistic works other than photographs.||Seventy years after the end of the year in which the author dies; in the case of government or a body corporate, seventy years after the end of the year in which the work was first published.|
|2.||Cinematograph films and photographs.||Fifty years after the end of the year in which the work was first published.|
|3.||Sound recordings.||Fifty years after the end of the year in which the recording was first made.|
|4.||Broadcasts.||Fifty years after the end of the year in which the broadcasting first took place.|
If an Artist Like Kelly Hansome Infringes on a Copyright, What are the Remedies?
- Administrative remedies- not necessarily applicable for discussion for our purposes so I’m skipping it.
- Civil remedies– injunction, damages (money), an accounting of profits
- Criminal Remedies – fines and you could do some time i.e be locked up. Due process is still required although Nigeria is what it is so no one follows the law. Due process means all that stuff that went down at the police station with Kelly Hansome and happily broadcasted by Mo’Hits was ridiculous and a violation of due process under Nigerian law. But, hey . . .
What is the probability that Criminal Remedies are used in Alleged Infringement Cases Like Kelly Hansome’s?
Zero to none. America, a very litigious society (this means we sue every 2 seconds. We fight all the time) does not throw infringers of music in situations like this into custody, much less arrest them. Neither does the UK and most civilized countries around the world with a copyright legal system. First, from a common sense and pragmatic point of view, our jails and prisons would be crowded with non-violent offenders just taking up space, space that should go to violent offenders like rapists, murderers, armed robbers etc. It is completely stupid and absurd for any civil society to agree to such results. It burdens tax payers and we permit for those we need to be protected against to fall through the cracks.
Second, the civil route has a hard bite and is very successful. D’Banj’s boss Kanye West and his friend Jay-Z have just been sued for copyright infringement here in the USA. Kanye West was not treated like an animal. The Plaintiff who claimed copyright infringement in that case, did not call the police neither did he did have Kanye West arrested, and he sure as heck did not send to media houses statements with gleeful delight and scanned “Undertakings” of Kanye West’s arrest and bail.
Is there a criminal procedure of how these things should be handled, even if there was a showing of using the criminal process? Yes, there is. That analysis is better suited for the Baba Suwe case of which I intend to reference this case. Suffice it to say due process under Nigeria’s own legal system is never followed. That is why Don Jazzy can conveniently say if he really intended to stick it to Kelly Hansome, he would not be out. Sad but true statement. Welcome to Nigeria.
Oh! Governor D’Banj just bought an Aston Martin Vantage car to the tune of $200,000. Good for him. He works hard and he is fortunate Nigerians and other African groups love him enough to make him wealthy. Hope he shows the same love and respect for our music industry, in the future.
NOTE TO SELF: I dig that guy D’Prince and think he is hot!!!! I like his songs. Can someone say Omo’ba? I think I must have effectively screwed my chances of ever getting with him. *Shrugs shoulders.* I’ll settle for a white guy in America. *Goes back to singing and dancing to ‘Omo’ba’ by D’Prince.*
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