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Friday, February 22, 2008

Can Africans Make a Tight Song Without Using American Beats?

I love, love, love Ladybrille readers! Whether it's the many that send e-mails or the commentators such as SET, Bella, Chichi, Ashley,Estella of Estella Couture, Lara Akinsanya of L-Shandi, My 2 cents and so many more. They are such independent thinkers and I so appreciate that. Thank you all for keeping it interesting and engaging! So, Tola, I love that you bring this topic up because I've thought about it for a while and at times, drop comments on Bella's blog when a few of her posts have brought up this issue.

Whether fashion, music or art, the "copy copy" syndrome seems to be a major issue these days. Even Senator Hillary Clinton accused Obama of "copy copy" speeches. Did you see the debate yesterday? Wasn't it delightful! By the way, I "xeroxed" oops I meant plagiarized your word for the headline to this article. Call my office let's talk if I make lots of money from it. Lol! On the fashion end, the industry is fighting about the Design Piracy Prohibition Act . We will bring you all the scoop and how it applies to Africa's Fashion Industry in the nearest future. Stay tuned for that.

But, as to my post on Rih Rih + P. Diddy vs Banky W & Oluwadiddy, which compelled Tola to say the following: "I"m not even gon lie, I love the Naija renditions. I totally agree with [B]ella about the fact of not being able to get the orignial American version back in my head. However, I have a mixed feeling about this. Are we saying that Nigerians can't be innovative and come up with a[n] awesome beat? Which is totally not true! Your lyrics are hot, just come up with your own beat, or tweek the beat up a lil bit or something. These are big time copy right infringement and its only a matter of time before they catch up to all these artists. I read somewhere when someone asked Sauce Kid about "stealing" Remy ma's beat for "Yebariba" and he said, "it's all publicity". Well I say, you'll be publicly broke when you are caught. Doing a home video with your favorite Artist's beat is totally different from doing a professional music video, and being paid to perform the songs. When [B]lack jesus did his thing online= cool; when he started performing a[n]d (getting paid) for it= not cool. "If I had a blog. I will blog about this because I'm seriously curious about what people think about the new wave of what I call, "I can't make a tight song until I use an [A]merican beat" thing going on. So I say keep the renditions coming because I love them, but try not to make money [o]ff it. Maybe I should really start a blog. Naaaaah! by the way I LOVE your blog Ladybrille.
February 22, 2008 12:35 PM.

Adding at 12:45pm, "Oh yea another comment. I just saw the "wetin man go do video... HOT". I still think the song will still be hot with a banging "original" beat. Also whoever knows them should tell them to change the whole "CNN" thing. They can do "ANN" for like[A]mplyfied news network. CNN does not play! It's a trademark guys.

Okay Tola, since I have the Blog and can blog about it, my response: Tola
! Funny you should speak of the IP issues. "Wetin {W}oman Go Do" Lol! I wholeheartedly agree with you that copyright issues are present and was the reason I delayed posting these clips until I felt comfortable to do so. Nevertheless, it is still a very murky area and boy do you open a whole can of worms! Perfecto! While I do not do music law, I do fashion law and the same IP issues apply, although a different industry. I, of course, invite the IP lawyers among us to please enlighten us, especially as to the music industry.

First, I think one could argue rather persuasively that the clips by users such as Naijaboys, Oluwadiddy e.t.c. falls under the Fair Use Doctrine of the Federal Copyright Law. However, I think the real analysis starts from understanding YouTube’s position and role as to such users who upload copyrighted materials. Why? Because YouTube has the deep pockets [green, owo, dinero, cheddar, money] and if I was suing, I would have my LAWYAS go after them first. It also helps us know where the NaijaBoys & Banky W.’s of the world stand.

YouTube permits users to upload content and they do not screen content for copyright infringements. Instead, they put the burden on copyright holders to do so. Needless to say, copyright holders, some of whom are MAJOR corporations, as you correctly note dropped it like it's hot with some "FIYAH" litigation on YouTube's bootie. Whoo hoo! I love this stuff. Sorry, litigation is in my DNA so I get excited when I hear of a legal battle of these sorts. Lol! Some of my colleagues in the music law biz are counting their cheddar. Darn!

Anyway, YouTube argued and continues to argue that it is exempt under the 1998 Digital Millennium Copyright Act [“DMCA”]. A section of that statute says YouTube cannot be sued when folks like Interscope Records say, “Hey Naija Boy is infringing on our copyright with the SouljaBoy Tell Em beat e.t.c.,” and YouTube removes the infringing NaijaBoy video. Costar Group, Inc. v. Loopnet, Inc. 373 F.3d 544 [4th Cir. 2004], although a real estate case, dealt with the issue of whether a web site operator [who was like a gatekeeper with screening videos, unlike YouTube's hands off approach] was guilty of a direct copyright infringement because its users posted commercial real estate images owned by the Plaintiffs- the folks who sued on their site. The Fourth Circuit Court did a WyClef/Destiny Child’s remix as they said, “no no no no no!” YouTube makes the same analogous argument as to why it is not responsible for those who infringe on the copyright owners' IP rights. I could delve a lot more into the analysis but I think you should look up the act and case.

So since YouTube can be shielded from liability, do the big dawgs then sue Banky W, Oluwadiddy, Black Jesus, Naija Boys and the likes? Weeeeeeeeeeeeell, it's ALL about the money. Show me the money is what they are thinking. How much can they make with Naija Boys cranking and shaking their yansh? Not much. Waste of owo for awon[ the] lawyas. Unless, they of course want to do ut as a matter of principle to make a point.

These major copyright owners realizing that the Banky Ws, Naija Boys and even Oluwa Diddy ain't got much dinero ; and the fact that YouTube is very popular and is "hia" for the people by the people, has said, how can we make money off this thing? Warner, NBC, Lucas Film among others are now doing “if you can’t beat them, join them" thing. They have said, “Looki hia Looki hia YouTube! we know the Black Jesus and Naija Boys of the world will mix their home video with some of our copyrighted work and upload on your site. What we want from you is to cut us a deal.” Yes o, Tola. Money talks! Always follow the money and you will find the answers to why people do what they do, at least in the business world.

Warner, for example, has negotiated with YouTube to receive a certain percentage of advertising revenue. No shakin’! as they would say in Naija. In addition, YouTube itself knows it will continue to get sued. Viacom filed a huge suit against them last year saying you continue to let the Naija Boys and Oluwadiddy's of the world use our beats, songs e.t.c. and upload on your site, intentionally! YouTube does the math and wants to minimize the impact of litigation on its pocket book. So, they have established some protocol to reduce the impact of infringement of copyrighted works on the YouTube site. For example, clips are not to exceed 10mins e.t.c.

Inspite of it all, it remains to be seen where this goes. Now, if Banky W, takes his Ebute Metta and puts on an album, packages and sells it, then like you correctly point out, c’est tres grande issue because that is plain stealing and he is not shielded from YouTube and needs to pay up to JAY Z before Rihanna hits him with her Umbre ella, ella, ella. He is a user realizing profits and should be paying for the beats, which someone worked hard to make, just like he does his music. The lyrics are Banky's so Rihanna can just chill with the "talk to the hand" thing she was doing with Jay- Z on the grammy stage because Banky ain't havin' dat. He owes neither her nor Jay-Z didly squat on the lyrics-only the "Ebute Metta" residents. Lol! The same holds for everyone else including "Black Jesus." Again, very fascinating and exciting area bringing so many issues that the courts are still trying to iron out. Yes, you bet all players in the game, in their own way, are saying “Geez, THANKS YOUTUBE!”

As to the CNN thing, have you checked out lately? You can use Vogue, NewsWeek e.t.c. covers complete with logos to launch your image on the cover of their magazine. Obviously, these entities have given the license to to permit them to do this. Amplifyd needs to negotiate with CNN but I doubt that in between Oluwadiddy [ I like how that sounds. Great name] hiding all over DC and the 'CNN reporter' uplifting the American spirits that those Nigerian hip-hop crew would be found, Oluwadiddy had the time to negotiate with CNN. Maybe next time.
Alright Tola, signing off! One post dedicated to your question. Na wa! You are powerful wo/man!


O.A.Eddy said...

Can Africans Make a Tight Song Without Using American Beats?

Interesting question. That question led me to wonder if American Hip Hop artists can make a tight song without using other peoples beats and if Hollywood can go through a year without remakes or borrowed-makes from other countries.

The copyright issues discussed here are really inconsequential as far as I am concerned. When the owners of the beat are ready to vex dem go vex. Although Ladybrille, you did a very great analysis of the issue. Thanks for the information.

But to answer the question "Can Africans Make a Tight Song Without Using American Beats?"
The answer in an emphatic YES!! GO and pick up a CD by Fela, Lagbaja, Femi, D'banj, Kefee, Infinity, Fatai Rolling Dollar, GT the guitar man, Weird MC, Asa, T.Y. Bello, Rooftop MCs, Dekunle Fuji, Six foot plus, Faze, Jeremiah Gyang, Pheel, Eben, Panam, 9ice, Soul E baba, Ruggedman, Selif Keita, Baba Maal, Cesaria Evoria, Angelique Kidjoe, Nameless, Tid, Awilo, Kofi Olomide, and the list goes on and on and on and on and on and on..... please ehn, lets not insult Nigerian and other African artists with such a silly question.

Anonymous said...

Ladybrille, you've done it again girl. Thanks for taking the time out to enlighten me. It makes so much sense. Money talks for real.

I must admit, I’m one of those people that read your blog and never comment (Ma binu). The first time I do, I get a whole post dedicated to me.
Awww... I feel so honored! I will like to first thank God, my family, my... LOL.

@indigenous production,
I think you misunderstood Ladybrille. I believe that was a rhetorical question (Ladybrille, correct me if I’m wrong). Her post was in response to a question I had asked on a previous post. My point is, yes we can make tight beats, so we need to be original. Your reply further proves my point. said...

@Tola & Indigenous, yes teh headline was rhetorical indeed. Nevertheless, Indigenous, I am quite familiar with some of the artists you list and some have been featured udner the Music and African Music categories on Ladybrille. My favs out of Naija remain Lagbaja & Faze. I also like Jazzman Olofin, alot, but do not care for his videos. What 9ice and Ruggedman are doing is definitely brilliant. I am a sucker for music that retains the authenticity of one's language and culture in a very modern way and I think they r doing a brilliant job of that. Out of Africa as a whole, SA's Freshly Ground and definitely the absolutely too cool for words Maasai hip-hop group from Tanzania, Xplastaz.

I disgaree with u about the inconsequential aspect of the copyright issues present in scenarios like d one I wrote about. Maybe b/c I get calls from the small guys like the Banky W's & Oluwadiddys, on the fashion end, who have to deal with both the civil and at times criminal implications for their actions. Indeed, US Feds are getting quite serious about this on the books; and conducting raids across the nation. In addition, top law firms are creating depts. focused solely on infringers of intellectual property rights and working closely with police depts. across the nation to deal with this; and again they are going after the small folks, not just the big names.

Nkeiruka C. Ogbuokiri said...

Ladybrille, Point taken...In regards to Banky...I made comment to the best of my ability back in early Feb. noting... "Royalities are given to the songwriter...Rihanna didn't write her song...However by law Banky's material is considered new work...
Of course- This is considered to be derivative work, the song is new material so it's legal..."

oh, don't laugh @ my blog...I'm bad with keeping up with it... said...

@Nkeiru--Lol! on ur site and updates. It can be real hard with updates, can't it?

Re: Derivative work. Check you out with the "to my best of ability." :) You are funny.
Let's talk derivative work.

First, understand that only the copyright holder has the exclusive [as in no one can try to take it from me bcos its mine]right to make derivative works from the original. See 17 U.S.C. section 106subsection 2 for this. So, unless Banky W. bought the copyright or license from Roca-A-Fella records, the true owners of the copyrighted work i.e.Jay-Z, it is illegal for Banky W. to make a derivative work off the original Umbrella.

The question then becomes can Banky W. get away with the alleged derivative work now that it has been released? The answer seems to be "Yes' if he argues like I said, Fair Use -- very murky waters. A case on point is the 2 Live Crew 1994 case, Campbell v Acuff- Rose Music.

But, I think we should still for clarity define what constitutes derivative work. The sort of 2 prong test if you will is: 1) first, it has to be new work; 2)it must incorporate previously published material. That is what the law requires. Point 2 is not at issue because the beats are clearly the beats of Rih-Rih's "Umbrella." The issue in contention is really prong #1 whether Banky W's lyrics of Ebute Metta qualifies as new work. Is it distinct from Rih-Rih's lyrics? The answer, in my view is yes. But,that is what Banky W will have to pay his lawyers to argue about b/c Rih-Rih's lawyers can still say that the lyrics are not necesarily distinct since the beats are not distinct. To me,not a strong argument. But, the point is so u get a clear understanding of what derivative work is and is not.

In summary: Banky W. gets derivative work ONLY if he is a true copyright owner or has the permission [license] from the owner to use Rih-Rih's Umbrella. Otherwise, he stands the chance of being dragged to court, going through a very expensive litigation,and hoping that he can waive the 2live crew case before the jury in his Fair use defense, which is probably his best defense.

Disclaimer: I have to say, this is not legal advice. Just an engagement in legal analysis for your information only.

Nkeiruka C. Ogbuokiri said...
This comment has been removed by the author.
Nkeiruka C. Ogbuokiri said...

Ladybrille- I'm understanding you. In regards, I hope that anyone in the music business, especially indie artist...make note of the important highlights you have given us...

This is really an interesting subject...especially with the new trends of the music industry...

Irony of it in the US, hip-hop was founded off of making beats, mic battling the hottest artist in one's crew/neighborhood & remaking each other tracks.

I've been keeping up with AishaMusic for a year now...

I have to send you the exact think, but it's really jogs my brain...

Oh, and I have one of my favorite outfits that TeKay made for me a couple of years ago. That is one customer friendly company.

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