IF YOU DO NOT OWN IT OR CONTROL IT, YOU EXPLICITLY NEED A LICENSE: A GOLDEN LESSON KENYAN MUSICIANS NEED TO LEARN
This has been an interesting year for Kenyan music. We have had some great hits and some serious misses. I have been meaning to tackle the issue of seeking consent since earlier in the year when DJ Pierra released the song Wape a re-arrangement of Queen of Taarab Bi. Malika. Now, here we are and Dela has done a wonderful cover of Adele’s “Hello“. According to an article by All Africa, they spoke to Dela and the article made a declaration that a cover for Youtube purposes does not amount to copyright infringement. This is a very laughable conclusion. So, I shall bring it closer home with an analogy.
If a random stranger came to one of your many houses and decided to paint it, would you accept it even if it’s free? Or they come to plough your shamba and grow sweet potatoes without your permission, would you be okay with that because it’s free? You would probably call the police on them, right? Intellectual property rights are proprietary rights. As I always like to say time and time again, one’s Intellectual Property is their Shamba.
There is no such thing as infringement free copying sans permission of the rights holder. It does not help the situation when those who do not have the professional knowledge give bogus advice. Have you heard of Abass Kubaff’s “Moral Dilemma” where he samples the original recording of Adele’s “Hello” with the help of a DJ he collaborated with? When the song hit the airwaves, I heard some radio hosts praise how awesome it was and that they hoped that he paid royalties. The IP lawyer in me scoffed at that statement with rage. What does “pay royalties” mean in this context exactly?
Ideally when and if you want to use someone else’s song, you MUST seek consent. These are their rights and they have authority to deny permission, sue for unauthorized use and do as they please with their musical property. If you want to obtain rights clearance over use of a song, an artist needs to contact the copyright holder who is usually the author and/or composer. The research in this process is intense and due diligence must be precise because it will not matter if you paid the wrong person or entity. Where the composer/author has assigned their rights to a music publisher, you then deal with the publisher and not the author/composer. In my opinion, the most organized composers/ authors have publishers to undertake the burden of making sure they make money from their music.
Different publishing houses have different practices. Some of the legal infrastructure these publishers have include sampling licenses at a fee, Mechanical Rights Agreements also at a fee, Adaptation licenses at a fee. Whatever use you envision in your artistic mind, you must seek consent and get the necessary licenses and pay the required fees where stipulated. There may be instances where you may be lucky to get a free consent, and if you do, it must be in writing. If it is not, well, let’s just say… it is not free. It’s what is provided under the law. All licenses must be in writing where copyright is concerned. A “verbal license” will not suffice. In summary, where one fails to get consent/ a license to use another’s musical works, they are liable for copyright infringement.
When these rights holders are granting the licenses, they reserve the right to hear the final product, to question the use for example; what part of the song you are sampling, the time length of the sampling, the artists involved in the re-recording of their work and any other material information they find necessary. All these factors contribute in how much you would pay to the rights holders. For example in Adele’s instance, Dela and Abass (if he did not) should have sought consent from Universal Music Group- UK for further direction before proceeding to record.
I am aware there are a few Kenyan artists who do ensure they clear the rights appropriately and in the right manner as required under the copyright laws. For example, Kevin Wyre, The Love Child, obtained the Mechanical rights to use “Sina Makosa” from the recognized rightful owner at the time he was re-recording the song.
Perhaps, our entertainment journalists should also highlight some of these crucial information when interviewing artists so that others learn from those who do right by other copyright holders.
Take home points?
- You MUST research to find out who has the rights or control over the song.
- You MUST seek their CONSENT/LICENSE.
- You MUST get a LICENSE.
- You MUST have the consent/ license in WRITING.
- You MUST pay for the License / Consent as stipulated by the Rights Holder.
- You CAN negotiate. After all licenses are negotiations.
- Even music made for free distribution must be sought for a license/ consent first from the owner.
- If you have not sought consent and the rights holder is silent, it does not mean you are not liable for copyright infringement. Your turn to be caught is coming though.
- If you are sued, be ready to pay lots and lots of money. Far more than what you would have paid for the license had you sought it in the beginning. Have you read the case against Robin Thicke for the infringement on Marvin Gaye’s song?
- YES, our Copyright Laws protect International Rights Holders as well. (I have heard several comments that international music is free. No it is not!)
First and foremost I would like to appreciate the work you have done on this blog.
To be the business at hand, I agree with you that all stakeholders involved need to consider getting a license.
According to Dictionary By Farlex, copy right is defined as follows: “A bundle of intangible rights granted by statute to the author or originator of certain literary or artistic productions, whereby, for a limited period, the exclusive privilege is given to that person (or to any party to whom he or she transfers ownership) to make copies of the same for publication and sale.”
In reference to Dela’s cover of Adele’s “Hello”, the All Africa declaration that a cover for Youtube purposes does not amount to copyright infringement is misguided because according to the Youtube Copyright and rights management(https://support.google.com/youtube/answer/2797466) a video can still be claimed by a copyright owner, even if you have done the following:
1. Given credit to the copyright owner
2. Refrained from monetising the infringing video
3. Noticed similar videos that appear on YouTube
4. Purchased the content on iTunes, a CD or DVD
5. Recorded the content yourself from the TV, cinema or the radio
6. Stated that “no copyright infringement is intended
Exception to the above is where creators allow content of their work to be available for re-use subject to their requirements. For example see the Creative Commons License. (https://support.google.com/youtube/answer/2797468)
Counsel does the statute of limitation for copyright infringement have any effect on the mentioned examples above?
Thanks for your comment George. Now, the Terms and Conditions do not supersede the law. However, for You Tube it is a smart move to ensure they protect themselves for the use of their platform which they are responsible for. Look at it this way, where two parties are collaborating on a project and one is an individual or an SME and the other a giant corporate, where the act they are responsible for were to injure you in any way, you would expressly go to the corporate giant for compensation, yes? In this instance, the Terms and Conditions are a cushion for Youtube to protect themselves. However, they in no way purport to invalidate the copyright laws and practices that are global. Please note that by using Youtube one does not transfer ownership.
The much I love Dela’s cover of hello. Well researched piece. Love it. Can I repost it to http://loitokitok.com/category/know-your-law? At least I have seeked conscent. 🙂
You can share and link it back to my blog and credit on yours. 🙂