Law & Policy, Legal Drama

Is Jason’s IROKO & Yemi Sax Claiming Copyrights to Songs They Do Not Own? #Copyright Infringement

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This case here is interesting and to some extent shows how the Nigerian music industry will have to grapple with some of the tough legal issues ahead.

I received an email from You Tube yesterday. Below is what it said.

“Dear Africamusiclaw,

Your video “Carolina by Sinzu aka Saucekid ft Davido.avi”, may have content that is owned or licensed by iROKING Ltd, but it’s still available on YouTube! In some cases, ads may appear next to it.
This claim is not penalizing your account status. Visit your Copyright Notice page for more details on the policy applied to your video.

Sincerely,
– The YouTube Team”

When I visited my Copyright Notice page, below is the relevant copyright notice I got.
Carolina by Sinzu aka Saucekid ft Davido.avi

Your video may include the following copyrighted content:

“yemisax @yemisaxboss www.saxrecordsonline.com-Carolina (Sauce kid & Davido)Yemisax Remix”, sound recording administered by:
iROKING Ltd”

To be clear, IROKO/IROKING was not claiming copyright infringement and even if they tried, it would fall flat on its face. However, I was intrigued by the You Tube message for several reasons:

  1. ‘Carolina’ was my favorite song for 2011.
  2.  Sinzu/Davido’s team sent the song to me and solicited my publishing in my capacity as blogger/publisher, last year etc. If you said, “fair use,” then check you out.
  3. I knew, for a fact, that Davido/HKN and Sinzu/SMG were not signed to IROKO Ltd. In fact, Sinzu now has his own VEVO account. Second, from all interviews about how ‘Carolina’ came about, Davido said he produced the sound recording  and Sinzu jumped on it with the lyrics. Therefore, unless the sound recording was sold to IROKO/Yemi Sax, neither Yemi Sax/nor IROKO can claim to have permission to a song that does not belong to them. Now I am even more intrigued. I start wondering about the Yemi Sax person referenced above. I check on him. He is talented.

I think to myself, “but even if Yemi Sax has permission to create a derivative work off Sinzu’s song, he and IROKO cannot claim copyright ownership to the ORIGINAL sound recording, the one the artists sent to me which is what I published on You Tube in conjunction with the article I wrote last year.”

Folks, if you use pre-existing work such as the sound recording of an artist to create an adaptation, recast it or transform the pre-existing work, then you have created a “derivative work” both under US and Nigerian law. The problem, however, is that the only person who can create or grant the rights for a derivative work to be created is the holder of the copyright of the original work.

Back to Yemi Sax and IROKO, assuming, for argument sake, that Yemi Sax can somehow come up with a copyright ownership agreement that Sinzu granted him, neither him nor IROKO should be trying to claim ownership in the original sound recording. A derivative work doesn’t affect the existing copyright protection granted to the owners of the original work, neither does it erase the permission/right given for use of the original work to a separate party.

In any event, I am bothered by the fact that this Yemi guy is trying to claim ownership of a copyright in the  original sound recording of a song that does not belong to him. I contact Sinzu to be clear on copyright ownership of his original sound recording. He was not pleased to hear my experience because he tells me he never licensed his song to IROKO or Yemi Sax, to say the least. He is frustrated with the industry and again confirms that he owns the ‘Carolina’ song with the requisite deal worked out with the producer (Davido), and at no time has he signed with IROKO neither has he given permission to Yemi Sax to perform his work as a derivative, much less make money off it and split the profits with IROKO. He also informs that IROKO solicited him to do business with them and he declined.

Subsequent to my contact with Sinzu, I look at Yemi’s catalog on Iroking and his IROKO You Tube channel. Yemi Sax, make no mistake about it, is very talented. However, he has derivative works of what seems like the entire music industry on both his IROKO Youtube page and Iroking. Now, if neither he nor IROKO bothered to get permission to the song owned by Sinzu, what is the probability that he or IROKO have permission to the many songs Yemi Sax has online?

Hold up. Let’s hit the rewind button on this for a minute people. When IROKO first got on the scene, they went on, and on, and on about protecting the intellectual property rights of artists. I said, “okay. I get it. Now expand your platform beyond You Tube, step up your marketing and promotions for the artist and focus on the artists.” I also added that there were many legal rights involved and this was one sticky situation that could get stickier as the company continued to grow. Y’all saw the exchange on that article. Here we are. So how does IROKO explain this seemingly blatant violation of the copyright of a Nigerian artist? How many more of these exists?

Today, I get a note from You Tube and this is what the new note says:

“Dear Africamusiclaw,
iROKING Ltd has released its copyright claim on your video, “Carolina by Sinzu aka Saucekid ft Davido.avi”. For more information, please visit your Copyright Notice page
Sincerely,
– The YouTube Team”

They must have seen me digging yesterday on their channel.

What happens where your copyright is infringed upon?
You should ask the person infringing to stop through a “cease and desist” letter i.e. take the infringing material off their You Tube page, the music retail stores they are shelved etc. You should also ask them to pay you for damages and profits as a result of the infringement. This can be worked out in a settlement negotiation of some sorts. If they do not take you seriously or ignore you, you take them to court. Be sure to consult with your lawyer to fully discuss your legal rights and also to get legal representation.

I don’t know if IROKO has subsequently taken the Yemi Sax Sinzu ‘Carolina’ rendition off their sites but you can hear the  mp3 version of Sax’s unauthorized use below. Any takers who want to discuss this, feel free to do so in the comment section just leave the abuses and attacks out. If not, I will delete it. Argue on the issue and points discussed.

There are a lot more layers and issues here, as you can imagine, but this write up ought to suffice, for now.

-Uduak
@uduaklaw

AML’s Uploaded ‘Carolina’Song

Yemi Sax’s Unauthorized Use of the Carolina Song
[audio:https://www.africamusiclaw.com/wp-content/uploads/2012/10/Yemi-Sax-Remake-of-Carolina-by-Sinzu.mp3]

Message from You Tube 

Sample Songs of Artists by Yemi Sax for Sale/Advertising Revenue on IROKO’s Platforms


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Africa Music Law™

AFRICA MUSIC LAW™ (AML) is a pioneering music business and entertainment law blog and podcast show by Fashion and Entertainment Lawyer Ms. Uduak Oduok empowering the African artist and Africa's rapidly evolving entertainment industry through brilliant music business and entertainment law commentary and analysis, industry news, and exclusive interviews.

Credited for several firsts in the fashion and entertainment industry, Ms. Uduak is also a Partner and Co-Founder of Ebitu Law Group, P.C. where she handles her law firm’s intellectual property law, media, business, fashion, and entertainment law practice areas. She has litigated a wide variety of cases in California courts and handled a variety of entertainment deals for clients in the USA, Africa, and Asia.

Her work and contributions to the creative industry have been recognized by numerous organizations including the National Bar Association, The American University School of Law and featured in prestigious legal publications in the USA including ABA Journal and The California Lawyer Magazine. She is also an Adjunct Professor at the prestigious Academy of Arts University in San Francisco.
For legal representation inquiries, please email (uduak@ebitulawgrp.com). For blog related inquiries i.e. advertising, licensing, or guest interview requests, please email (africamusiclaw@gmail.com). Thank you for visiting Africa Music Law™.

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1 Comment

  1. Justin Ige says:

    What Yemi sax is doing is basically covers, which regulatory framework has not been sorted out by the NCC. I have cause to believe it is being worked on. This will determine what origarinal authors and composers are entitled to. Of course, Yemi cannot grant Iroko what does not belong to him. And its a bit annoying when right owners keep complaining about the industry when they refuse to enforce their very own right. I say what Bob Marley would say, Get up, Stand up, stand up for your right.

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