SAMPLING IN THE NIGERIAN MUSIC INDUSTRY
“And all the mothaf**kin’ samples that cleared, thank you, y’all be tryin’ to give a n***a a hard time on the samples, man! I’ma go to the f**kin’ Supreme Court and try to make this shit easier for ni***s like me to clear these samples, man. If you made the f**kin’ music and you made the art, and you put it into the world, I should be able to use it however the f**k I want…You was inspired by the world, allow the world to be inspired by your shit, and to use your shit….” (‘Note to Self Outro’; Forest Hills Drive, 2015)
Once in a while, we get inspired by the works of others and most of these times; we get tempted to make use of these works in ours. In music, such an act is referred to as sampling. Believe me or not, sampling is one of the best things that have ever happened to music. For instance, a lot of us music fans wouldn’t have had the privilege of knowing about the existence of certain classical sounds if they weren’t sampled by modern artists in their songs. Again, a lot of our ‘favorite hit songs’ may not have been hits without the use of samples in them.
The rule with regards the use of samples has always been: “get cleared or get sued”. But as we all are aware being humans (except for the few aliens cast down to Earth from Asgard and animals, like those from George Orwell’s farm that may be privileged to read this); the easier the rule, the harder it is to uphold. However, clearing of samples has, over the years being a challenge (Think I’m lying? ask J.Cole and the thousand and one artists out there who have to pay such sums just to get a sample cleared).
When you’re putting together a budget for an album, you’re going to put together $100,000 to $150,000 in upfront fees to clear your samples, if it’s an album filled with a lot of samples. You have to utilize a sample first before you can clear it. You can’t just come up with the idea because the copyright holder needs to hear it….But then you send it to the copyright holder so they can listen to it. They need to determine how extensive the use is for them to determine what kind [of cost] they’re going to come up with….And then it goes to the publishers, then the labels, and in some instances based on what the contract states, it has to go to the writers for consent and it might have to go to the artist or the artist managers. So there’s a lot of approvals that it needs to go through, and then once the approvals come about, a quote or value is then determined and negotiated. (Deborah Mannis-Gardner, Forbes Magazine Interview, 2016)
Sampling has been a part of music making from the very beginning. However, this practice has only proved expensive for the international artists outside the shores of Nigeria. For instance, most recently, Travis Scott, an American rap artist, agreed to give 50% of the rights to his hit single Antidote in order to clear a sample he made of the Leon Michels produced All I Need, performed by Lee Fields & the Expressions. Ed Sheeran back in 2016, faced a $20million court battle over the claim that his song Photograph was a word to word replica of the 2009 Matt Cardle’s song Amazing written by Martin Harrington and Thomas Leonard. Way back in 1973, the almighty John Lennon was sued by Chuck Berry’s publishing company-Big seven- claiming that certain lines and melodies of Come Together were taken from Berry’s 1956 track You Can’t Catch Me. Although Lennon argued that he only used the song as inspiration, he later had to settle out of court by agreeing to record three songs owned by the publisher Morris Levy. Jay Z and Timbaland were accused of stealing flute samples from a late Egyptian singer’s 1957 song Khosara in the former’s 1999 song Big Pimpim, though he successfully defended the suit, a new case bordering on infringement of moral rights was instituted in March this year.
Robbin Thick and Pharrell Williams were sued by Marvin Gaye’s children for copying their father’s hit Got to Give It Up in the former’s Blurred Lines (which was inarguably the biggest hit of 2013) and had to pay more than $5m after a jury ruled in favour of the Gaye family; Stevie Wonder sued Oasis for featuring similar arrangements and melodies on their track Step Out taken from the former’s song Upright. There are a host of other similar music related copyright infringement cases overseas and I can go on and on listing them, but time, I’m afraid, will not permit, as our focus is on the Nigerian music industry.
Music in Nigeria has come a long way and the entertainment industry has developed into a major source of revenue, reportedly contributing almost 10% of Nigeria’s GDP. However, the Copyright law (though an integral part of the laws of the federation for more than two decades) has only received a side hug from the Nigerian music artist like ‘my bro’ (name withheld) who has been friend zoned. There isn’t a single report of a successful sampling or related copyright suit in Nigeria; believe me, there isn’t one. Peradventure I am wrong and there may be one, it is undoubtedly undergoing the unending torture of litigation associated with the Nigerian legal system and we will be lucky if we get to reference such judgment in the coming decade.
What could be the cause of this lackluster attitude by Nigerian music artists towards respecting the intellectual properties of others? Could it to that the Nigerian music artist has no iota of idea about copyright and possible means of seeking redress where his copyright is infringed? Or could it be that Nigerian musicians have over the years being very diligent in clearing samples from the copyrights owners? Or could it that the copyrights owners are too generous to even care about persons sampling their work without proper licensing? Or could it be that the expansive life span (an average of 20 years) of suits in a functional Nigerian court (from institution of the suit to final judgment and possible appeal) discourages the aggrieved parties from taking their grievance to court and rather choosing to air their fart in the Social and Mass Medias? Or is it that we are too deaf to notice that Lagbaja’s Gra Gra was sampled in Davido’s If; Kojo Funds and Abra Cadabra’s Dun Talking in Davido’s Fall; Wizkid’s Caro in Yemi Alade’s Johnny, the sampling of chords and interpolation of the lyrics of Starboy Nathan’s Come into My Room by Psquare in Temptation; Clearance Peters recycling swiped ideas while shooting music videos for different artists and a host of other songs that were sampled by several Nigerian artists? I would gladly accept the task of writing a book on Easy Steps to Understanding Women than attempt answering the questions raised here. Care to know why? While the former is ‘mission impossible’, the latter though not yet designated a mission, is already beyond impossible (trust me, not even Tom Cruise can source the answers to these questions).
Nigerian artists need to understand certain facts: if you pay a music producer to produce a beat or song for you (except where such payment amounts to a lease), that song/beat and the ideas used in its creation becomes your intellectual property; and any sampling either of the lyrics, instrumental or melody; or the use of the idea in another’s work without your prior permission, sought and obtained by any one amounts to an infringement of your copyright. You can seek redress in a court of law and claim damages against such an infringer if you can sufficiently prove to the court that the original song/beat belongs to you and the way, manner or extent to which the defendant’s work infringes on yours. Same goes to music videos production. There is an urgent need for a change of attitude within the Nigerian music industry towards plagiarism if we are to move any further and stake a claim in the music world. Originality matters and innovation is the only key to a successful career in music.
You cannot sample on a free mixtape, and I know of cases that I think are in process right now where copyright holders are going after this stuff because the concept of a free mixtape is to promote an artist. Therefore it’s deemed to have a value. If the artist goes to the next level, so that when he goes to sell something it has a greater value, then the mixtape does have value. (Deborah Mannis-Gardner, Forbes Magazine Interview, 2016)
There is this common belief that the use of samples in a mixtape or a free project does not require clearing of any kind. That is untrue. The fact though is this: the essence of suing a person who used samples in his song without obtaining license from the rights’ owner is to claim damages against profits made from the sales of the song. Therefore, where no profit is derived from the song, little or no damages will be awarded and so it will amount to a waste of time and effort on the part of the copyright owner. This amounts to the reasons many rights owners don’t institute actions when it comes to mixtapes and free projects without commercial value. However, I will encourage anyone attempting to sample another’s work in his/hers to first obtain license from the copyright owner notwithstanding the fact that it is free. This will not only save the artist future embarrassment in the form of litigation but also, go a long way to accord respect to the owner of the original work, and discourage plagiarism in the music industry.
Finally, my candid advice to every Nigerian artist out there is to strive hard to remain original, innovative and creative, according respect to whomever respect is due. That being said, if you are inspired by a tune or sound and you create material that leans and borrows blatantly from another artist it is only proper to get permission to use that source material.
Under the Nigerian copyright act, copyright is conferred on every work eligible for copyright of which the author is a qualified person (or, in the case of a work of joint authorship, any of the authors is at the time when the work is made, a qualified person). Qualified person means: an individual who is a citizen of or is domiciled in Nigeria; or a corporate body incorporated by or under the laws of Nigeria. (s. 2 Copyright Act, C28, LFN 2004)
Works eligible for copyright includes literary, musical, artistic, cinematograph films, sound recordings and broadcast works. [s. 1(1) Copyright Acts]
A musical work shall only be eligible for copyright when:
Sufficient effort has been expended on making the work to give it an original character; and
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. [s. 1(2) Copyright Act]
A musical work shall not be ineligible for copyright by reason only that the making of the work or the doing of any act in relation to the work involves an infringement of copyright in some other work. [s.1(4) Copyright Act]
Copyright in a musical work shall subsist for a period of 70 years to be calculated from the year the musical work was published and then the work shall go to the public domain where anybody can make use of it without infringing on any copyright. However , where the author of the musical work was unknown and. later became known, the duration of the 70 years will be calculate after the end of the year the author dies. [s. 2(3) Copyright Act].
For ways in which an action can amount to an infringement of copyright in Nigeria, check out s. 15 of the Copyright Act.
By David B.S. UrbanCentral Editor and Resident Hip Hop Elitist. He can barely go a day without a Drake or Kanye West Joke.
You can follow him on twitter @Stedbe
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