Kike Ojewale is an Associate at Adepetun, Caxton-Martins, Agbor&Segun (ACAS-Law), a top Law firm in Nigeria, offering a wide range of services. In this piece, she shares some insight on how best artistes can benefit from music publishing, but from a legal perspective.
– By Kikelola Ojewale
The Association between Law and Music Publishing
Publishing is a new and developing segment of the music industry in Nigeria. It is essentially the monetisation of your copyright. Copyright grants the creator of an original work exclusive rights for its use and distribution. The relationship between a music publisher and an artiste is crystallised in a publishing agreement which is executed by all parties involved. Although we do not have specific laws that govern music publishing in Nigeria, the fundamentals can be found within our copyright laws.
The general issue in Nigeria is the basic understanding of what music publishing entails. There are a number of “publishers” who establish companies without the basic knowledge of publishing or how the administrative angle of publishing works. Also, some artistes are yet to grasp the concept of publishing and as such are not totally aware of their rights. Most times, artistes unknowingly sign away all of their rights to the benefit of the record or publishing companies. It is advisable to engage the services of a lawyer when negotiating a publishing deal.
The Importance of a Lawyer When Signing a Contract
It is extremely important to engage the services of a lawyer when negotiating a publishing deal and drafting a publishing contract. We have worked with a number of artistes who have regrettably signed deals that have not been favourable to them. Unfortunately, some artistes with an incredible catalogue of music, have lost potentially, millions of dollars to unclaimed publishing rights.
Key Points To Look Out For In A Publishing Agreement
Again, never sign a publishing agreement without the advice of a lawyer. On a practical scale, the best way to engage a publisher as an artiste, is to ensure you create a good body of work that is actually attractive to the publisher. Anything less than attractive puts more risk on the publisher. The main points to look out for in a publishing agreement are;
- The term of the agreement: The term of the agreement is the length of the agreement. Most publishers would either insist on a specific term or until a specific number of songs have been delivered.
- The territory: Would the agreement cover Nigeria or would it be a worldwide deal? A worldwide territory allows a publisher to maximise its earnings as a wider territory is being covered.
- The scope and the composition: Agreements should be specific on the songs which form part of the publishing deal.
- The ownership:This is one of the most important terms in a publishing deal. In most publishing agreements, a publisher would aim to own 100% of the copyright. However, it is important for an artiste to insist on 100% ownership or at the very least, a 50/50 split.
- Administration:This grants publishers the right to exploit and control that composition. This also allows publishers to collect monies from rights granted to third parties. Industry practice is about 10-15% depending on the bargaining power of the artiste.
Securing Your Rights As A Music Artiste
This is mainly contractual and such rights must be negotiated based on the advice of a lawyer. An artiste can take legal actions if there is a breach of any of the terms of the agreement. Such options for legal action should be defined clearly in the agreement. For example, the parties can agree to resolve any issues within thirty days of the notice of said issue. In the event that the matter is not resolved within the stipulated thirty days, the agreement can be terminated or the matter may be referred to court or other alternative dispute resolutions such as arbitration or mediation.
This should not be overlooked in an agreement. It is advisable to ensure that any of the parties cannot terminate the agreement without notice or cause.In the event that the agreement does not state that reasons must be given for termination, it should include a notice period at least. A well-drafted agreement should have an exit clause for both parties to give the parties an opportunity to seek other options or exit the relationship.
In an industry such as ours, we need to take more drastic measures in tackling the issue of piracy. It would appear that the existence of online platforms where direct downloads are restricted. If there is a restriction on the methods in which music is distributed, this could contribute largely to the fight against piracy.
The Future of Music Publishing in Nigeria
There has been an increase in the number of publishing companies being established in Nigeria. It appears that these companies are educating themselves on publishing and applying that knowledge to the industry here in Nigeria. The recently established Music Publishers Association of Nigeria (MPAN) is also a step in the right direction. Members or the entertainment industry must be educated and fully informed of their rights with respect to publishing and copyright as a whole. It appears to be a very slow process but there is certainly hope for the future.
Need legal advice? Send in your questions. See page 33.
Editor’s note: This article was originally published in the Spark Magazine. Find the magazine here to read more articles.
Kike Ojewale is a corporate and commercial lawyer at ACAS-Law, a top law firm in Nigeria. She specialises in all areas of intellectual property, media, sports and entertainment law.