The Advantages of Music Publishing for Songwriters within the Nigerian Regulatory Framework

 

  1. Introduction

The curtains are usually drawn to behold the performance of a music artist/singer who, in most cases, thrives greatly on the lyrical composition of a songwriter who is backstage and mostly unacknowledged. An artist can also be a songwriter but in this case, reference is being made to an independent songwriter who is not doubling as a vocalist. This article seeks to explore the avenues through which a songwriter not only retains total ownership and control of his original work but can capitalize on certain legitimate channels to preserve ownership and make financial gains through Music Publishing. Music publishing can be explored in two areas: (i) sound recording and, (ii) song-writing. The latter category will be the major focus of this article.

  1. Background

Music publishing is the act of commercially utilizing the works of songwriters by making these works available to the public. This could be carried out by the writers themselves or by a designated representative or administrator, i.e., a music publisher.

The history of music publishing dates back to over a century ago when mechanical methods were developed for printing sheet music, and publishing sheet music used to be a publisher’s primary activity and source of revenue – a situation that has since changed. Due to the technological advancements in the production and consumption of music over the years, music publishers have been forced to change their long-established business model from selling a product (like ‘sheet music’), over which they had complete control, to managing copyrights through licences.[2] In essence, the practice of publishing sheet music in the past mostly granted the entire copyright of songwriters to music publishers. What is currently obtainable is the granting to the music publisher of rights over a certain percentage of copyright belonging to the writer, which is regulated by either an assignment or a licence agreement between both parties.

A music publisher serves as an intermediary between the creator (songwriter) of a work and the public for its use and generation of royalties. The publisher is likely to shepherd the song-writing process through the stages of production from manuscript to performance, recording, and subsequent distribution.[3]

Generally, a music publisher falls under these categories:

  • a Self-Publisher: this is an individual (songwriter) who is in total control, retains complete ownership over copyrights, acquires all royalties from the publishing of the song-writing, and is responsible for the registration, licensing, and creative matters of their work.
  • the Administrator: this could be an individual or small company providing services to the songwriter for a small payment and managing all aspects of registration, licensing, and royalty collection processes. Notably, they do not pay advances to the writer nor offer creative services.
  • the Major Publisher: this category provides administrative services for the highest commission, pays millions in advances to the writer to maintain their market shares, and also provides creative services to the writer. Most big stars align themselves with this category of publishers, e.g., Universal Studios, SONY, BMG, ASCAP, EMI, etc., and in Nigeria, they include Universal Music Nigeria, Replete Publishing, Premier Music, Hypertek Digital and Green Light Music Publishing.

The importance of music publishers to a songwriter cannot be overemphasized. They are responsible for: (i) notification or recordation of ownership rights over a song to the appropriate Copyright Commission, (ii) royalty collection from Performing Royalty Organizations or Collecting Societies, (iii) song licensing issued via Performing Royalty Organizations or Collecting Societies, and (iv) general creative matters.

Subject to an assignment or licence agreement between a music publisher and a songwriter, music publishers are also inclined to exploit the works they represent because they receive a share of the copyright or control over such work.

  1. The Legal Framework for Music Publishing in Nigeria

For obvious reasons, music publishing falls under the Nigerian Copyright Act[4] (the Act). Since Music Publishing Agreements are mostly executed via an assignment or licensing of copyright, they should be drafted and enforced in accordance with the extant copyright laws of a country.

Section 1(1) of the Act provides for works eligible for copyright to include; (a) literary works and (b) musical works, within the ambits of which any song-writing could qualify.

Section 1(2) goes further to state that literary and musical works would be eligible for copyright, where; (a) sufficient effort has been expended on making the work to give it an original character and (b) 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.

Section 6(1)(a) of the Act defines the right of a copyright owner in a literary or musical work (i.e., song-writing) to include the exclusive right to control or authorise the doing in Nigeria of any of the following acts amongst others, that is (i) publish the work; (ii) perform the work in public; (iii) produce, reproduce, perform or publish any translation of the work; (iv) distribute to the public, for commercial purposes, copies of the work, by way of rental, lease, hire, loan or similar arrangement; (v) make any adaptation of the work (this involves the music publisher being granted copyright to engage in synchronization deals and licensing T.V commercials, movie production, and pitching company, etc., to adapt its musical compositions to their production or T.V Commercials).

Nonetheless, the rights of a copyright owner outlined in Section 6(1)(a) of the Act do not include the right to control the following; (a) the doing of any of the acts mentioned in the said section 6 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.

Such right to control the doing of the aforementioned acts does not also include; (c) the inclusion in a collection of literary or musical work which includes not more than two excerpts from the work, if the collection bears a statement that it is designed for educational use and includes an acknowledgement of the title and authorship of the work; (d) the making of not more than three copies of a book (including a pamphlet, sheet music, map, chart or plan) by or under the direction of the person in charge of a public library for the use of the library if such a book is not available for sale in Nigeria, as specified in the Second Schedule to the Act. So, despite being a copyright owner of a musical composition, if your work is exploited in line with the above-stated exceptions, it would not be deemed infringed.

Section 6(2) of the Act goes further to state that the doing of any of the acts referred to in subsection (1) of the section shall be in respect of the whole or a substantial part of the work either in its original form or in any form recognisably derived from the original.

Music publishers are mandated by section 14 of the Act to keep registers of all works in which copyright subsists and produced by them showing the name of the author, the title, year of production, and the quantity of the work produced. This serves as a check and balance on copyrighted works and their original source.

  1. Music Copyright and Music Publishing Agreement

Music publishing is one of the end products of music copyright as there is no purer form of copyright business than music publishing. Through the assignment or licence of copyright, a songwriter stands a chance to earn an income through music publishing. All music publishing income is earned through the administration, collection, and enforcement of copyright. ‘Publishing income’ is the income flowing from the publication of musical works. This income includes mechanical and digital royalties; sales of sheet music; commissions for new works; licensing songs for subsidiary uses such as film, television and advertisements; licence fees for the public performance; communication to the public; and broadcasting of works.[5]

It is the granting of a certain percentage or all of the copyright in a work to the music publisher that authorizes the dealing in the songwriter’s work which fosters the profiteering by the songwriter from the income of such usage. This grant is usually reduced to a written contract which is called a Music Publishing Agreement (MPA). A Music Publishing Agreement is a written instrument between a music publisher and a songwriter that dictates the terms and conditions of assigning or licensing of copyright, the share of publishing income, duration of transfer of copyright, and stipulated use of the copyrighted works.

A Music Publishing Agreement should also contain the following.

the rights of the parties, exclusivity period, number of years assigned to the music publisher, applicable laws and dispute resolution clauses, and rights of the songwriter to audit royalty’ collection.[6]

There are several types of Music Publishing Agreement, but the three notable ones are discussed below:

  • Co-publishing Agreement: this is a common type of agreement where the songwriter transfers 50% copyright to the music publisher and the income generated is split two ways- 75% for the songwriter and 25% for the music publisher.
  • Administration Agreement: under this type of agreement, the songwriter keeps 100% of his copyright and the administrator/music publisher collects an administration fee of 10% or 25% of the income generated. This is popular where a songwriter engages an administrator as a music publisher as highlighted above.
  • Licensing Agreement: this is a popular type of agreement where the songwriter enters into a contract with a pitching company/placement house that aids in synchronization deals with a T.V commercial or movie, i.e., the songwriter licenses a pitching company to help pitch and adapt his songs to a T.V commercial or movie while he retains 60% copyright and grants 40% to the pitching company to exploit his work.[7]

It should be worthy of note that a Song-writing Split Agreement is encouraged between co-writers before entering into a Music Publishing Agreement to clearly state the percentage of copyright each co-writer owns.[8] Consequently, an assignment or licence granted by one copyright owner shall be binding on his co-owner and, subject to any contract between them, fees received by the grantors shall be divided equitably between all the co-owners.[9]

  1. Assignment and Licence under a Music Publishing Agreement

An MPA could either be by way of an assignment or licence of copyright. Under Section 11(1) of the Nigerian Copyright Act, copyright shall be transmissible by assignment, by testamentary disposition or by operation of law, as movable property.

Under the Act, an assignment is not clearly defined but according to Kevin Doran,[10] it is a permanent transfer of one or all of the copyright inherent in a work of authorship, similar to the sale of personal property. Doran further states that assignments are normally more expensive because the purchaser has total ownership and can resell or license the works themselves.[11] An assignment under an MPA could therefore authorise the songwriter to assign all rights and titles to the music publisher for restricted usage and for certain purposes dictated by the music publisher and subject to the consent of the songwriter.

However, Section 11(2) of the Act allows for the limitation of the percentage of copyright that may be transferred under an assignment or testamentary disposition to apply to only some of the acts which the owner of the copyright has the exclusive right to control, or to a part only of the period of the copyright, or to a specified country or other geographical area. Hence, an assignment ‘may’ be restricted provided the copyright owner stipulates what particular rights are to be assigned.

On the other hand, a licence according to Kevin Doran is a temporary or limited transfer of certain copyright rights. It can be made on an exclusive or non-exclusive basis, meaning the copyright owner can license the work to more than one person at the same time.[12] By virtue of Section 51 of the Act, an exclusive licence means a licence signed by or on behalf of a copyright owner, authorising the licensee to the exclusion of all other persons (including the person granting the licence), to exercise any right which would otherwise be exercisable exclusively by the copyright owner. Consequently, for an MPA, it enables the songwriter to enumerate the rights to be exploited or used in a certain manner rather than generally restrict the use of such rights.

Most music publishers opt for an assignment rather than a licence. However, to fully protect the interests of a songwriter, a licensing agreement may be the best option as it grants temporary rights to the music publisher for a particular duration. Doran added that a licence is more economical for small enterprises to use copyrighted content.[13]

By a combined reading of the provisions of Section 11(3) and (4) of the Act, an assignment of copyright or an exclusive licence to do an act shall be made in writing while a non-exclusive licence to do an act may be written or oral or may be inferred from conduct.[14]

  1. Music Publishing Rights

Under a Music Publishing Agreement, several rights emerge, and it is trite that songwriters understand the legal rights arising from the agreement between themselves and the music publishing company or administrator. These rights can be classified into a sound recording right and a song-writing right. Each right when exercised attracts royalties and recognition, and an individual can only have either of the rights or both when one possesses the copyright to such work.

The copyright affected in both scenarios above entitles the author or owner of the right to claim authorship of his work, to object and to seek relief in connection with any distortion, mutilation, modification or any other derogatory action concerning his work, where such action would be prejudicial to his honour or reputation. In addition, these last mentioned rights (known as the author’s moral rights) are perpetual, inalienable, and are transferrable to the author’s heirs and successors in title.[15]

Section 13 of the Act guarantees the right to share in the proceeds of sale of a copyrighted and original work amongst other works. However, the conditions for the exercise of this right shall be determined by regulations to be made by the Nigerian Copyright Commission (NCC). The share in proceeds may involve two or three parties, i.e., the songwriter and music publisher or both and a collecting society.

A combined reading of Paragraphs 11 and 16 of the Copyright (Collective Management Organisations) Regulations 2007 reveals how the proceeds realised by any registered collecting society should be shared, with up to 70% of the amount generated available for distribution among members while the remaining 30% can be used for running the activities of the Society. The Regulation provides that a fair and equitable formula should be used in distributing royalties to members.  Despite these provisions, most royalty sharing agreements are subject to the terms and conditions reached by a songwriter and music publisher in Nigeria.

A classic example that clearly projects the advantages and complexities of owning music publishing rights is the story of the Beatles’ Catalog. In March 1963, the popular music group Beatles had sold music publishing rights (MPR) in their recent debut album to Northern Songs, a music publishing company. In 1985, ATV Music, another music publishing company acquired this MPR from Northern Songs and subsequently put it up for sale. In this regard, Michael Jackson purchased the ATV’s 4,000-song Catalog for $47.5 million, becoming the owner of approximately 250 John Lennon-Paul McCartney songs, as well as various tracks by Bruce Springsteen, the Rolling Stones, Elvis Presley, and more. In 1995, Michael Jackson sold half of ATV to Sony for approximately $100 million, and together the two formed Sony/ATV Music Publishing, with Jackson and Sony each owning 50% of the company. In 2016, after the death of Michael Jackson, Sony officially agreed to buy out the Jackson estate’s full 50% of Sony/ATV for $750 million, making Sony the sole owner of the Lennon-McCartney Catalog as well as Sony/ATV’s 750,000 songs. In January 2017, Paul McCartney filed a lawsuit[16] against Sony with an eye on the U.S. Copyright Act of 1976, which allowed songwriters to retain the publishers’ share of their copyrighted works released before 1978 after a 56-year period (comprised of two 28-year terms). For the earliest Beatles songs, that term was to expire in 2018, with the later songs eligible by 2026.[17]

The lawsuit was withdrawn by McCartney after reaching a confidential settlement agreement with Sony and realizing the failure of a similar case in Duran Duran where a British Court had ruled on grounds that US law did not apply in Britain.[18]

  1. Agencies responsible for Music Publishing

Section 34 of the Act establishes the Nigerian Copyright Commission (NCC) which amongst other responsibilities is in charge of all matters affecting copyright in Nigeria.

Section 39 of the Act also establishes collecting societies. In the United States of America, Canada, and most parts of Europe, collecting societies are referred to as Performing Rights Organisations (PRO) and this includes ASCAP, BMI, SOCAN, SESAC amongst others. Their primary role is to serve as middlemen between copyright holders and the public, whereby they are engaged by a music publisher, authorized to grant licence for the use of such copyrighted work, and to collect mostly synchronization and performing royalties in return.

By virtue of Section 39 (8) of the Act, a collecting society is an association of copyright owners which has, as its principal objectives the negotiation and grant of licenses, collection and distribution of royalties in respect of copyright works in favour of the rights owners. In Nigeria and under the Copyright (Collective Management Organisations) Regulations 2007 made by the NCC, they are referred to and established as ‘Collective Management Organisations’ (CMO). Currently, there are three approved CMOs in Nigeria, namely:

  • Reproduction Rights Organisation of Nigeria (RERONIG) – a collecting society for literary and published works,
  • Musical Copyright Society of Nigeria (MCSN) – a collecting society for musical works and sound recordings, and
  • Audio-Visual Rights Society of Nigeria (AVRS) – a collecting society for cinematograph films.[19]

For music publishing in Nigeria, a music publisher/administrator would directly deal with and register as a member of either the Reproduction Rights Organisation of Nigeria or the Musical Copyright Society of Nigeria to collect royalties over relevant genres of published works.[20]

  1. Conclusion

Intellectual property laws are designed to safeguard the creativity and originality of one’s work and asides the protection of ideas and creative expressions, it also facilitates the enforcement of a holder’s right against any infringement. The proper utilisation of IP protection provides the owners a means of income when such creation becomes a commercial asset. Song-writing is a commercial asset of a songwriter and music publishing makes this possible by providing access to the global market of these songs and musical compositions. In the entertainment industry and as highlighted above, music publishing could be beneficial to a songwriter especially where one is a self-publisher without having to involve third parties, as a substantial percentage of publishing income could be retained by the songwriter.

However, where one is a renowned songwriter with a lot of engagements; it is advisable to appoint an independent music publishing administrator or company to assist in marketing one’s work to the public and to collect royalties. It becomes more suitable to engage a music publisher who contracts with a foreign publishing company to exploit your work and provide returns when your royalties accrue from international countries through what is known as sub-Publishing Agreements.[21]

These are some of the perks of music publishing.

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For further information on this article and area of law, please contact Franklin Okoro at:

S. P.A. Ajibade & Co., Abuja by telephone (+234 909 481 9809), or email (fokoro@spaajibade.com).

www.spaajibade.com

[1]     Franklin Okoro, Associate Intern, SPA Ajibade & Co., Abuja, NIGERIA.

[2] See, Economics of Music publishing: Copyright and the Market, available at: http://eprints.bournemouth.ac.uk/30047/1/Economics%20of%20music%20publishing%20rev.pdf,

accessed 7th May 2021.

[3]       Ibid, p. 1.

[4]       Cap. C28 Laws of the Federation of Nigeria (LFN), 2004.

[5]       Music Business: Music Publishing, Ch. 9. p.181.

See,https://simpsons.com.au/wp-content/uploads/Music-Business-Chapter-9-Music-Publishing.pdf accessed 7th May 2021.

[6]       If i.e., after the audit, it is discovered that the royalty collection is undercounted, the music publisher would pay for the audit and interests on the undercounted royalty. See,

https://help.songtrust.com/knowledge/what-is-an-audit-clause-in-a-contract accessed 7th May, 2021.

[7]       The quoted percentages are subject to negotiations.

[8]     See, Francis Ololuo, “Understanding Split Sheets and Collaboration Agreements in the Music Business”

(10th September 2020) available on http://www.spaajibade.com/resources/understanding-split-sheets-and-

collaboration-agreements-in-the-music-business-francis-ololuo/#_ftn6 accessed on 2nd August, 2021.

[9]       Section 11(5), Nigerian Copyright Act Cap. C28, Laws of the Federation of Nigeria (LFN), 2004).

[10]     Kevin Doran, “The Difference Between Assignment and License of Copyright” https://smallbusiness.chron.com/difference-between-assignment-license-copyright-66736.html accessed 7th May, 2021.

[11]    Ibid.

[12]     Ibid.

[13]     Ibid.

[14]     See, I.J Adenuga v. Ilesanmi Press & Sons (Nig.) Ltd. (1991) 5 NWLR (Pt. 189) 88.

[15]     See, Section12, the Nigerian Copyright Act.

[16]     James Paul McCartney v. Sony/ATV Music Publishing LLC, (2017) 17-CV-363.

[17]     See, https://www.billboard.com/articles/columns/rock/7662519/beatles-catalog-paul-mccartney-brief-history-ownership, accessed 14th May, 2021.

[18]     See, https://www.theguardian.com/music/2017/jul/04/beatles-song-rights-dispute-paul-mccartney-and-sony-atv-work-it-out, accessed 14th May, 2021.

[19]     See, https://copyright.gov.ng/regulatory/#1607360884524-d9949268-7f90  accessed 14th May 2021.

[20]     See, Regulations 5(4) of the Copyright (Collective Management Organisations) Regulations 2007.

[21]     A sub-publishing arrangement exists where a writer and/or a publishing or administrating entity enters into an agreement with a foreign publishing company, the sub-publisher, to exploit their compositions in a different country or countries. This means that the sub-publishing company has the right to administer, license, and exploit the owner’s songs in countries where the other parties generally do not conduct business. This agreement may apply to one or more separate songs or a writer’s entire catalogue. See,

https://www.tunecore.com/blog/2018/12/a-look-at-co-publishing-sub-publishing-and-administration-agreements-pt-2.html accessed 14th May 2021.

In Nigeria, this term is regarded as Reciprocal Representation Agreements. See, Regulations 8(1) (c) and 22 of the Copyright (Collective Management Organisations) Regulations 2007.