Legal Drama, Music Business

Majek Fajek: Music icon to sue Timi Dakolo for 100Million Naira over copyright infringement of ‘Send down the rain’

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In 2013, Timi Dakolo, winner of West African Idols 2007 competition, decided to remake music icon Majek Fashek’s 1980s single ‘Send Down the Rain.’ When Dakolo remaked Fashek’s song, Fashek, it appears from all accounts, had a serious substance abuse issue that stalled his music career. Subsequently, Fashek went through drug rehabilitation and was back on his feet. Once that happened, we began hearing that Fashek was very displeased with Dakolo’s use of his iconic song and even claimed copyright infringement.

The controversy/dispute boiled over last year forcing Dakolo to finally address his purchase of the rights to rremake ‘Send Down the Rain.’

“My people, it saddens me to see such. I always try to do things rightly and lawfully,” Dakolo, said in an Instagram post. “I paid his manager to remake the song, I got my invoice, I even mentioned to him during our rehearsals at the Headies. So, honestly, I don’t understand this write-up. Oga Majek Fashek. I respect and love you. Your voice gives life to lyrics. You are one of the best musicians I know. God bless you.”

Fast forward to February 2017, this issue comes up again. Fashek’s manager Uzoma Day Omenka claims he is Fashek’s manager and Dakolo never paid him any monies to use his client’s song.

In a recent interview with The Vanguard Newspaper, he has also threatened, on behalf of Fashek, to sue Dakolo for unauthorized use of the song.

“We are not taking this case lightly. We are just awaiting the arrival of our solicitors from the U.S., and the UK then we will hit the courts,” said Omenka in an alleged interview to the Vanguard. “For crying out loud, this guy is making money from itunes and he did what he did because he thinks in Nigeria, anything goes. If he can prove as he claimed that he paid for the use of the song and he can show concrete proof of it then he will go free, but if not, we will definitely meet in court.” 

Ms. Uduak’s take

AML Artists, here are a few things to note so you don’t find yourself in a situation like Dakolo, specific to the Nigerian context, although there are many parallels here in the U.S.:

  1. Determine what you want to do with the song i.e. remix, cover etc.
  2. Determine the amount of the song you want. Partial or the entire thing? Keep in mind this affects or will affect your budget.
  3. Determine whether you want a limited permission (i.e. license) or an outright transfer of ownership (i.e. assignment) rights in the song.
  4. If you want a license, determine whether you want an exclusive or non-exclusive license.
  5. If it is an exclusive license, it must be in writing. In general whether exclusive or not, put it in writing.
  6. Determine who owns the rights or has the legal authority to grant you a license or asssignment of rights. If the orginal copyright owner is deceased, mentally incapcitated, or has substance abuse issues etc. that may render them incapable of forming a valid legal agreement with you, make sure those who speak for the owner can show evidence of some type of power of attorney to do so.
  7. If you can afford to hire an entertainment lawyer to help you ensure the copyright is free from any encumbrances, and to negotiate, and draft the agreement to get you the rights you want. This is highly recommended. At a minimum, consult with an attorney.

In Dakolo’s situation, an alleged payment and an invoice, on its face, does not seem to be enough to prove lack of infringement.

If the steps I listed above went over your head, then listen to the entertainment law roundtable below to learn the basics about music publishing and why you need a copyright to help you.

NOTE: In the U.S. things are slightly different. You can, for example, under what is known as a “compulsory license,” re-record a pre-existing song without needing permission from the copyright owner so long as you: a) send a notice to the copyright owner of the song; and b) pay the applicable legally mandated (statutory) fees to the copyright owner. The song must have been recorded and distributed in the U.S. prior to your attempt to re-record it.

-Ms. Uduak

Send down the rain by Timi Dakolo

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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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