Copyright overload: This is Nigeria

So last week, Falz, the musician, released a new song and video inspired by Childish Gambino’s This is America, which was released earlier in May 2018. Falz’s version, This is Nigeria, just like its inspiration was a commentary on the state of social and political affairs in Nigeria. While I liked the concept and the message of This is Nigeria, there were no wow moments for me in the video. Quite honestly, I would have been happier if I did not see the video. But my issues with the video did not detract from what I thought was an important message from an artist (or anyone, for that matter). As we approach the 2019 general election, we must address the issues that we are facing as a society so that hopefully, they are in front of us as we consider our choices in 2019. We all have a role to play and Falz chooses to use his creativity to raise our consciousness about the ills that plague us. What we do with our heightened consciousness, is another story. Art is a powerful medium. A four-minute video can pass on the same message as a one-hundred-page dissertation. And then the reactions to This is Nigeria followed and I was surprised by some of the negativity. Many of the criticisms that I read did a jump-and-pass with the message that Falz intended to convey, and landed on the issue of originality and copyright infringement. I have written here before that not every case of copying a creative work constitutes an infringement. The rationale behind copyright laws is to strike a balance between the rights of the creator and the rights of society – society wants creators to profit from their creativity but they also believe that there should be room for society to advance using the works of creators as a stepping stone. In light of this, there are occasions where the permission of a creator is not required to use their work, subject, of course, to the principles of fair dealing. Most jurisdictions, whether they refer to this concept as fair dealing or fair use or whatever, recognise that there are instances where the public interest supersedes the interest of the creator; that rigid enforcement of copyright law stifles creativity. The Second Schedule of the Nigerian Copyright Act provides for the Exceptions from Copyright Control. Sections (a) and (b) of the Schedule provide that, ‘[t]he right conferred in respect of a work … does not include the right to control- (a) the doing of any of the [protected] acts … by way of fair dealing for purposes of research, private use, criticism or review or the reporting of current events, subject to the condition that, if the use is public, it shall be accompanied by an acknowledgement of the title of the work and its authorship except where the work is incidentally included in a broadcast;(b) the doing of any of the aforesaid acts by way of parody, pastiche, or caricature;…’ An article on Parody and Pastiche authored by Kris Erickson, on the website copyrightuser.org, parody is defined as ‘… a new creative work which uses an existing work for humour or mockery. Some parodies take aim at well-known artists or their work in order to make a critique. Another kind of parody uses existing work to draw attention to or comment upon a particular social phenomenon or issue. What all parodies share is referencing and making use of existing work to generate new social commentary.’ By this definition, I would classify This is Nigeria as a parody. I may be wrong, but this is my interpretation. Deciding what is fair dealing is a subjective exercise and each case will turn on its own peculiar facts. There is not much guidance from Nigerian courts as to how fair dealing is determined in this jurisdiction, but there are many persuasive authorities from other jurisdictions that have set out some of the factors that are considered. Some of the factors include:(i) whether the alleged fair dealing is in commercial competition with the owner’s exploitation of the work; (ii) whether the work has already been published or otherwise exposed to the public; (iii) the amount and importance of the work which has been taken; and (iv) the character and purpose of the use. In the landmark U.S. Supreme Court case of CAMPBELL v. ACUFF ROSE MUSIC, INC. concerning the music group 2 Live Crew’s parody of a song titled, ‘Oh, Pretty Woman’ (you might know it from the movie with the same title). 2 Live Crew had written to the copyright owners of the song seeking permission, which was not granted, and offered to pay to do a parody of the song. 2 Live Crew went ahead and released their parody without permission and Acuff Rose Music, Inc. sued. The Court held that 2 Live Crew’s work was fair use by parody. Parody, like other comment and criticism, may claim fair use. (Considering)… “the purpose and character of the use, including whether such use is of a commercial nature…,” the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is “transformative,” altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. The heart of any parodist’s claim to quote from existing material is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s work.’ Falz is not the only one who has been inspired by Childish Gambino’s This is America. While their objects are clearly different, a search on YouTube will reveal This is Jamaica and This is Canada (and there may be more) all inspired by This is America. Why don’t we let the owner of the work, Childish Gambino, decide how seriously he wants to take these parodies. Falz, being a lawyer and an offspring of lawyers, cannot be ignorant of copyright laws. Finally, I think that in addition to the factors considered in determining the fair use or fair dealing exceptions, we must also remember that copyright is concerned with originality and not novelty as is the case with patents. Copyright law not only considers the previous existence of an idea, but also the layers that are put on what exists to make it a new work.]]>