Legal Drama

PAUL PLAY v. ULTIMA LTD. & MTN: Did COSON Have the Legal Authority to Collect Royalty Fees In Behalf of an Unregistered Member?

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COSON NigeriaI saw a statement released by Copyright Society of Nigeria (COSON) regarding the Paul Play 500Million Naira copyright infringement lawsuit and I was, frankly, irritated. I felt the entire statement was unnecessarily skewed towards the Defendants in this case and for an organization that also represents the interests of artists, I would have liked to see COSON take a more neutral stance or just stay out of the dispute entirely.

Why? For starters, COSON could potentially be a party to this lawsuit, as an added defendant. Further, even if COSON is not added to the lawsuit, it should be subpoenaed as a witness for the Defense as it has crucial testimony that the Defense can elicit on direct examination. Independent of the fact that as a witness for the Defense, the Plaintiff would look to tear COSON apart on cross examination, if the Defense does not plan to call COSON on the stand as a witness, the Plaintiff can and should definitely subpoena COSON, put them on the stand, declare COSON as a hostile witness and demand COSON show the evidence from Plaintiff assigning Plaintiff’s copyrights in “Angel of My Life” which would make COSON administer its copyrights, in its behalf, without its permission.

So, again, I am unsure why COSON thought it prudent to release the statement it did,which  essentially defends ULTIMA LTD. With the many attorneys I have seen that make up COSON’s membership and its dealings with the international community including WIPO on copyrights of artists, didn’t COSON have experienced counsel to advise them before releasing the statements on Social media?

The Plaintiff’s attorney, if this matter is not settled, should certainly look to subpoena the release below, among other business records focused on the dispute here, for purposes of impeachment during trial. This is total ridiculousness on the part of COSON and it has no business releasing the statement it did.

MUSIC PUBLISHING

Music publishing is not a topic we discuss as much on AML for one reason alone, it is still very foreign in Nigeria and most of Africa’s music industries. However, the Paul Play case is a good test case to get into it a bit more than what I have done in the past.

There are two arms in the music industry anyone looking to do business in the music industry should know about. The first is the music publishing arm, and the other is the music recording arm. Today, we are focused on music publishing.

How Does Music Publishing Work?

1 . A musician writes a song. That musician is a songwriter. There are three faces in Nigeria’s music industry to reference. a) Tiwa Savage (323 Ent. & Mavin Records), b) Victoria Kimani (Newly signed Chocolate City act), & 3) Bez (Signed with Universal Publishing and Cobhams Asuquo’s label).

2. Once you write your song, what next? Under Nigerian, US, UK, Ghana, Kenya, South Africa and the laws of numerous countries with similarly situated rules, you are the exclusive owner of that song. In Nigeria and the US, the laws in these respective countries grant you a bundle of rights as the true owner of your song. One key right is the opportunity to exploit your songs.What good is a song if you can’t make money off it?

3. How do you exploit your song? There are two key players that come into play at this stage: a) the music publisher, and/or  b) the performing rights organization.

4.  Last week I shared with you all the news that Beyonce had signed a global administration deal with Warner/Chappell. I also explained what that deal is about. Well, Warner/Chappell is an example of a major music publisher. Others include Universal, EMI, and Sony/ATV. There are also many independent music publishers. In Nigeria’s music industry, unless you know something I don’t know, we do not have these kinds of major music publishers or even independent ones.

5. Instead, we have YOU the artist acting as both the writer and the publisher. Now, if you had a publisher what would be the role of the publisher? What exactly would they do? Their sole function is to acquire and exploit your copyrights. How does this translate into simple English?

a) You the artist assign your rights in a music publishing contract to the publisher. You need and should get a lawyer for this. From an artist standpoint, this assignment should not be a  lifetime. It should be limited to a calendar period and the rights reverting back to you upon expiration. Further, it is illogical to grant exclusive worldwide rights to publishers where a publisher has no clout in a specific market, for example, Asia, USA, Europe, Latin America etc.

For Publishers, they want worldwide rights and extra-terrestrial rights i.e. forever and ever on earth, in heaven and the universe.

Upon receipt of your rights, the publisher now has the right/power to license your work. The publisher can license your songs to organizations like COSON, television, radio, reality tv shows, restaurants, airlines etc. When they license your songs , it is their job to monitor these users, make sure they collect fees owed to you and then pay you the fees they collect and take their monies for their services.

In Nigeria’s music industry, since we do not have such major publishers (which is not necessarily a bad thing), you the artist are responsible for directly negotiating and working all the deal making kinks  with an organization like COSON. If you choose not to assign your rights to COSON, then you essentially will need to take on the role of a music publisher and manage your music publishing and the rights that flow from it yourself.

You can have an in house team, acquire the technology, train yourself and staff, hire the best trial lawyers so radio stations et. al who use your songs without permission know there are consequences; and who knows you could become the Warner/Chappell of Nigeria in future. Obviously, this route cost money. However, depending on where you are, it is doable. Also, as a practical matter, COSON will pay attention to the major users of your music i.e. radio, tv etc. It does not have the infrastructure to go to every corner in Nigeria where your music is played illegally. The same goes for you. If you decide to do it on your own, you can monitor the same radio, tv etc. that COSON does.

Either way, there is no law that says YOU the artist MUST join COSON. If you know of one, please revert back and share on AML for my benefit and my audience’s.

Indeed, P-Square have said they have no desire to sign up with COSON. To me, signing up with COSON or any other approved body makes logical sense if you are in the music industry to make money. However, to each his own.

Through it all, the point is anyone acting as a PRO  needs your permission for them to solicit users to use your music, license and collect monies for such use for you.

There are several monies they can collect for you: performance royalties, mechanical royalties, synchronization royalties, digital royalties and other forms of royalties. I have written an article on these royalties in the past.

Actually, let’s stop with the technicalities of publishing for a minute and get back to this case and the central issue at hand.

At the end of the day, and central to this litigation is one important and basic question:

Did COSON have the legal authority to collect Royalty Fees  from Defendant ULTIMA, LTD. in behalf of  Paul Play, an unregistered member?

This question is very important on so many levels.

First, it easily exonerates the Defendant ULTIMA LTD. Indeed, all they need to show, as  evidence, is the agreement they received from COSON with Paul Play assigning its copyright to COSON to administer the rights (license, collect fees, pay) for his song “Angel of my Life.” They can also show this through testimony from COSON, their key witness,  in court.

Here is what ULTIMA LTD said in their release addressing this specific issue:

“For the past 5 seasons of PF (Project Fame) therefore, Ultima has annually made the statutory payments due and required for the use of musical works for both local and international artistes used on the Project Fame show. As is standard practice all over the world, rather than maintain individual agreements with each one of the hundreds of artistes whose songs we use, we have a single agreement with their collection body (COSON) who in turn is responsible for dealing with each individual artiste! COSON is responsible for collecting such payments on behalf of Nigerian artistes. . .”

Further, they can counter sue Paul Play, ask for attorney fees and also ask the court for sanctions against him for filing a frivolous lawsuit, if indeed there is clear evidence showing he gave COSON the right to license and collect fees from users for his  his song “Angel of my Life.”

Second, if on the other  hand, Paul Play never assigned his copyright to COSON but COSON collected royalties in his behalf, then COSON itself has infringed on the copy right of Play. There is no showing that Play received any of the monies paid for his specific song from COSON, at least not in the released statement by COSON.

Indeed, there is a fine distinction between being Nigeria’s sole collecting society, as COSON is always quick to remind the world, and having an automatic right to license the copyrighted work of another, without their permission.

Being a sole collecting society does not grant an automatic copyright, under Nigeria’s Federal Copyright law, in the work of Paul Play. The same holds here in the USA. Paul Play, himself, has to register to be a part of COSON and such registration should include a contractual assigning of his copy rights in his musical compositions to COSON. With this power, COSON can license his musical compositions to users for a fee and collect those fees. Upon collection of those fees, COSON will then turn around and pay Play.

Why does all of these matter? Well, if COSON is about enforcing the law and prosecuting alleged copyright infringers, which it has with its attention grabbing multi-million naira lawsuits against major radio stations and television, then being a credible body, then necessarily, it must also come to the table with clean hands.

As a practical matter and for trial purposes:

a) The complaint, the charging paper, should be amended to include COSON as a party to the lawsuit i.e. a defendant, if indeed there is clear evidence to show they never had Play’s permission to license his work. The law does not immune COSON from being sued and it only make sense in this lawsuit that it is included as a party, especially from the standpoint of efficient use of judicial resources and saving everyone’s time.

b) If Play decides not to sue COSON, then a subpeona should be issued to COSON seeking  any and all documents germane to this litigation in the current pre-trial stage. This stage within the pre-trial process  is called the “discovery phase.”

As part of that discovery phase and in preparation for trial, COSON’s officers i.e.Tony Okoroji and any of its relevant corporate officers, need to be deposed. A deposition is  an oral testimony of a witness obtained out of court. A court reporter typically transcribes the testimony, provides a copy to the lawyers and then the lawyers use the testimony, in court, to impeach a witness, among other uses.

Ultimately, this case has COSON at the center of it. If COSON can show evidence that Play gave them the right to license his music, then Ultima and MTN are free. If COSON cannot produce such evidence, then Ultima and MTN would be wise to settle out of court and then turn around and sue COSON to indemnify i.e. pay them back for all monies they have given COSON specific to this artist and use of his song at issue.

There is also an issue of credibility if the latter is the case. These companies would and should make it a standard protocol to have a copy of the signed membership agreement granting COSON such right. COSON in its agreement with the artists, should obtain permission to share such document with users who demand for it. It may be cumbersome fro all involved but it sure beats being sued, as a user,  for 500Million Naira and dealing with the costs of litigation and your brand being placed in a negative light in the public.

NOTE: By the way Nigerian companies et al, if you are accused of wrong doing and you are sued, social media is not the platform to start explaining yourself. There are two brands that were sued: MTN & ULTIMA LTD. Outside of Nigeria, MTN is the brand we are all more familiar with.

However, because of the poor handling of ULTIMA with social media, the lawsuit is now about them. Twitter is full of talks about ULTIMA. This should not have happened. In fact, we don’t even know if MTN is a part of this lawsuit because they have managed to stay in the background. Nigerian brands and people at large need to work better at how they handle lawsuits and disputes in the public.

On social media, you should acknowledge, if you deem it necessary to do so, that indeed a suit was filed against you, you have done nothing wrong, you will fight the suit tooth and nail, and you believe you will be vindicated. End of story. Full stop. All these “ah noooo oh! I no thief ya money na COSON” open ya yansh for public drama is uncalled for.

In the case of COSON, you are building relationships with similar PROs  and companies that may want to use the music of your members. The world is watching and volunteering biased statements against the interests of artists, especially since you are an artist driven organization, when you are not even a party to a lawsuit is baffling, at best.

-Uduak

COSON’s Statement Published Feb. 22nd, 2013 on its Facebook Fan page

The attention of Copyright Society of Nigeria (COSON) has been drawn to a news story being spread on the Internet that Nigerian singer, Paul Play Dairo has taken legal action against Ultima Ltd and MTN for the infringement of his copyright. COSON recognizes that in a democracy, everyone has the right to go to court. We however wish to remind everyone that the fact that one has gone to court does not necessarily mean that such a person has a good case. (This part irritated me.)

COSON remains at the forefront of the efforts to promote, protect, enforce and defend the copyright of every stakeholder in the Nigerian music industry. In doing so, COSON will take every step to protect the interest and rights of all individuals and organizations that are playing by the rules and are respecting the rights of copyright owners. (What does this mean COSON in relation to Paul Play? Are you saying Paul Play did not play by the rules? What are the rules? Can you collect on his behalf without his permission?)

We wish to say emphatically that ULTIMA LTD has consistently taken every step to ensure that it obtains appropriate copyright licence for the musical works and sound recordings used in its programming (Okay. But how is this relevant to this artist? If you will release this kind of statement, then be clear because you seem to imply Paul Play is lying but you have not said you have the evidence to show otherwise).

ULTIMA LTD is without question one of the most copyright friendly organizations in Nigeria and in the last few years has paid millions of Naira in copyright fees which have been distributed to various Nigerian copyright owners in musical works and sound recordings. (Okay, what’s the point? How is this relevant to THIS artist? Paul Play is not part of a collecting society, at least so he claims. If you collect fees in his behalf without permission, as he claims, what does it matter that ULTIMA LTD has paid millions? What’s that got to do with Paul Play? Can you address the issue? – Rhetorical question, answer in court, not online.)

We wish to state that at COSON which is a public trust, we value the right of every copyright owner, including Paul Play, to legitimate remuneration. That is what we work for day and night. Before the recent emergence of COSON, music was used freely in public in Nigeria with little consequence. Every step we have taken so far is to stop this practice and to ensure that copyright owners get their due reward. It is however not our intent to shake down or harass organizations that are operating within the law. That will simply destroy the system we are trying to build and threaten the future of the industry for coming generations. Before this development, our officials had made strong efforts to resolve the issues with Paul who has collected royalties from the system on different occasions in the past. (COSON, thanks for the history lesson. How is this relevant to the central issue here of whether you had the legal authority i.e. consent i.e. permission from Paul to collect royalty fees in his behalf for “Angel of My Life? I still see no answer here. )

We have a duty to approach the courts and provide the facts and the law as we know them to ensure that injustice is not done to anyone, whether copyright owner or copyright user. That should help in developing our legal system in this area. COSON will do its duty. (You also have a duty to avoid issuing such biased statements to the public, especially since your organization is central to this litigation and since your officials are potential witnesses in this case.) 

Business of Music North Africa Roundtable

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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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2 Comments

  1. ” Before this development, our officials had made strong efforts to resolve the issues with Paul who has collected royalties from the system on different occasions in the past.” Could this mean Paul is a member of COSON and has hereby signed the rights of his songs/royalty collections to them to them? Our officials have made strong efforts to resolve…also suggests COSON got paid without passing royalties to Paul or not entitled to collect the payments…very intrigueing case…ive got my popcorn at hand waiting to see how this pans out.” – Harri Best on 2/24/2013 via FB commenting.

    Harri,

    I saw that statement floating online but could not quite trace it to COSON so chose to focus only on the release where I could identify the source i.e. via their fan page.

    Assuming it is true, the question is whether Paul Play’s prior conduct is consent for licensing his song ‘Angel of my Life,’ at dispute. Certainly since MTN & ULTIMA are the ones sued, they can claim that COSON “said.” However, all of that is hearsay and I am not sure about Nigeria’s evidence code but if you are Paul Play’s attorney you would be objecting and asking the Judge to keep that kind of information out.

    Either way, MTN & ULTIMA have a problem. There was a similar case like this in Kenya and the court there, if I remember correctly, ruled for the artist. It was the Safaricom.

    Read my take on it: https://www.africamusiclaw.com/2012/09/music-law-when-music-licensing-goes-very-wrong-safaricom-seeks-out-of-court-settlement-with-kenyan-musician.html

    Thanks for your comment.

    Cheers,
    Uduak

  2. rubenelo heights says:

    Weldone Ms Uduak.I’d like for us to meet.

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