Legal Implications of the ‘Break Up’ of P-Square’s Brand and Products, By Rockson Igelige

Conclusively, the joint authorship relationship is a peculiar one laced with so much emotion and ego between the parties involved. And it is saturated with an intellectual property relationship coupled with spices of the principle of real property and tenancy in common…

We must note that this area of our Copyright Law has not gone through our judicial furnace, particularly in the music arena. That is why we have to take our search to other legal jurisdiction for materials, particularly the English laws that have great influence on our judicial system.

It is a legal truism anchored on some certain provisions of the Copyright Act, Cap 28, Laws of the Federation of Nigeria, 2004 and some decided English cases to postulate that the products or works of the P-Square Musical Brand evolving over 10 years are product of joint authorship and co-owners of the copyrights that both Paul Okoye, Peter Okoye and their estates can conveniently lay claim to under our extant laws.

Under the Nigeria legal climate, the works or products emanating from a joint authorship and co-owners of the copyrighted works, particularly of the P-Square Musical Brand are being regulated by the Copyright Act, Cap 28, Laws of the Federation of Nigeria, 2004 because they satisfied the requirements clearly stated in Section 1 and 2 of the aforementioned Act. The products or works of the P Square Musical Brand have copyright in them. There are musical works that perfectly scale through Section 1 subsection 2(a-b) of the Act.

According to the Section 11 subsection 6 (a-b) of the Copyright Act, Co-owner is defined as “…For the purpose of this subsection, persons shall be deemed to be co-owners – (a) If they share a joint interest in the whole or any part of a copyright;(b) If they have interest in the various copyrights in a composite production, that is to say, a production consisting of two or more works. In the same length, Section 51 of the act defines joint authorship as, a work produced by the collaboration of two or more authors in which the contribution of each author is inseparable from the contribution of the other author or authors.”

We must note at this point that there is sharp distinction between joint authorship and co-owners. While it is imperative to state here that the Copyright Act presently operating in Nigeria did not make any clear cut distinction between the two words, their meanings can be inferred from the above provisions. Joint authors are at some point co-owners but not all co-owners are joint authors.

The Section 11 of the Copyright Act, 2004 is to the effect that the copyright owner can sell, assign or transfer his copyright in any work to another person. The implication of the above provision is to the effect that somebody can acquire the copyright of Paul or Peter in the products of the P-Square Brand, and he/she will automatically become a co-owner with Paul or Peter but he/she cannot claim the title of joint authorship. It is against this background that makes me to argue that a co-owner might not be a joint author but every joint author is a co-owner at some point. And the only way a joint author can lose grip of his co-ownership is clearly spelt out in Section 11 of the Copyright Act, Cap 28, Laws of the Federation of Nigeria, 2004.

In an avalanche of a long line of decided English cases, the principle developed so far is to the effect that for a claimant to succeed in an action for joint authorship, such a claimant must show that the contribution he/she made towards the creation of the work is significant and original which approximate to penmanship, a direct responsibility for what actually appears on the work. Joint intention or not, during the creation process is immaterial, in an action for a joint authorship. What the Court wants to see is the individual’s significant and original contribution in the creating process that led to the joint authorship. This same principle was adopted in the following English cases; Robin Ray VS Classic FM Plc (1998) FSR 622 and Hadley and others VS Kemp and another (1999) EMLR 589.

But meanwhile, in the case, Fisher VS. Brooker (2008) EWCA Civ 287, the Court of Appeal decided that an organ solo which the claimant had contributed to the song ‘A Whiter Shade of Pale’ was significant and original to entitle the claimant to a declaration of authorship. The Court of Appeal however refused to grant the claimant a declaration of co-ownership of the work that seems to have been motivated by the monetary prejudices which such a declaration would have caused to the defendant after 38 years of inaction by the claimant.

Meanwhile, the legal relationship between Paul Okoye and Peter Okoye, after the breakup, in their joint authorship works and co-owners in their copyrighted works has a striking similarity with the principle of tenancy in common which will be seen as the legal implication of the breakup of the P-Square Musical Brand on their products. For example, either Paul or Peter has an equal right to possess and make use of every part of the jointly owned work. Both also has the power to make testamentary transfers of an interest and to convey or lease any undivided interest to a third party. Paul or Peter, like tenants in common, is presumed to have an equal, undivided interest in the P Square Musical Brand’s products. But this equal interest can be tempered with through written agreement that would rebut this presumption.

Besides, when profits are not made from the use of the work, Paul or Peter may use the work individually without a duty to account. This has a striking similarity with tenancy in common. But there is a sharp distinction between joint authorship and tenancy in common in this regard when the work is exploited for profit. While joint authors as in the case of Paul and Peter are required to account for any profits received as a result of a joint work, co-tenants are only duty bound to account for profits received through rental, depletion, or ouster. If the exploitation of the work does not affect the value of the work, then account for profit in joint authorship remains a mirage. A claimant seeking an order for an account for profit in joint authorship must show that the usage of the work affects its value or depletion.

Meanwhile, both Paul and Peter are fiduciaries to each other and on each other’s behalf as regards the P-Square Musical Brand’s product. They must show uttermost fairness, good faith and selflessness. The protection of a vulnerable party is one of the cornerstones of a fiduciary relationship. That is to say that since Paul and Peter are in a fiduciary duty, they must deal fairly and in good faith with each other when it comes to the P Square’s product. Both parties have a duty to disclose all relevant material facts that they know about the P-Square Musical Brand’s product when entering into a transaction with a third party. A fiduciary cannot deal at arm’s length and a nondisclosure of a material facts is actionable fraud.

The available remedy stipulated under the Copyright Act, 2004 for a breach of joint authorship and co-ownership is to institute a suit for copyright infringement and make a claim for damages, injunction, and if possible ask for account of profits when it is proven that the infringer is an innocent infringer as stipulated in Section 16 subsection 3 of the Copyright Act. Passing off, unfair competition and malicious damage could also be explored by parties in a joint authorship in seeking a remedy.

Meanwhile, an owner or co-owner of a copyrighted work as in the case of the P-Square Musical Brand’s products which are jointly owned by Paul Okoye and Peter Okoye cannot be sued for infringement of that work. This is also application to the licensee who cannot be sued if the license was not exclusive and if consent was given by one of the co-owner, who according to the Copyright Acts had the power to license.

Conclusively, the joint authorship relationship is a peculiar one laced with so much emotion and ego between the parties involved. And it is saturated with an intellectual property relationship coupled with spices of the principle of real property and tenancy in common. In the same vein, it also meets all the requirements of the fiduciary relationship. Moreover, fiduciary causes of action and remedies fill the void unattended to by the Copyright Acts.

We must note that this area of our Copyright Law has not gone through our judicial furnace, particularly in the music arena. That is why we have to take our search to other legal jurisdiction for materials, particularly the English laws that have great influence on our judicial system.

Rockson Igelige, menarock2@yahoo.com, an Entertainment Lawyer, wrote in from Delta State.